Regency Centers Corp 8-K, filed May 8, 2020
Regency Centers Corp (REG)
About this 8-K
Regency Centers Corp filed this 8-K on May 8, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
SECURITIES AND EXCHANGE COMMISSION
UNITED STATES
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(A) of the Exchange Act. ☐
| Item | 1.01 Entry into a Material Definitive Agreement. |
On May 8, 2020, Regency Centers Corporation (the “Company”) entered into separate Equity Distribution Agreements (collectively, the “2020 Equity Distribution Agreements”), each dated May 8, 2020, by and among the Company, Regency Centers, L.P. and each of SMBC Nikko Securities America, Inc., Regions Securities LLC, TD Securities (USA) LLC, Scotia Capital (USA) Inc., BMO Capital Markets Corp. and Jefferies LLC (and, in certain cases, certain of their respective affiliates), acting in their capacity as Sales Agents or as Forward Sellers, and separate amendments to the May 17, 2017 Equity Distribution Agreements (collectively, the “Equity Distribution Agreement Amendments”, and, together with the 2020 Equity Distribution Agreements, the “Equity Distribution Agreements”), each dated May 8, 2020, by and among the Company, Regency Centers, L.P. and each of SunTrust Robinson Humphrey, Inc., BTIG, LLC, J.P. Morgan Securities, LLC, Wells Fargo Securities, LLC, BofA Securities, Inc., and Mizuho Securities USA LLC (and, in certain cases, certain of their respective affiliates), acting in their capacity as Sales Agents or as Forward Sellers, which Equity Distribution Agreements relate to the offer and sale of shares of the Company’s common stock from time to time having an aggregate offering price of up to $500,000,000 (the “Shares”). The Company refers to these entities, when acting in their capacity as sales agents, individually as a “Sales Agent” and collectively as “Sales Agents.” The Company refers to these entities, when acting as agents for Forward Purchasers (as described below), individually as a “Forward Seller” and collectively as “Forward Sellers.” The Shares offered for sale under the Equity Distribution Agreements will be offered at then-current prices.
Concurrently with entry into the Equity Distribution Agreements, the Company entered into separate forward master confirmations (collectively, the “Master Confirmations”), each dated May 8, 2020, by and between the Company and each of Wells Fargo Bank, National Association, JPMorgan Chase Bank, National Association, New York Branch, Bank of America, N.A., Bank of Montreal, Mizuho Markets Americas LLC, Jefferies LLC, The Bank of Nova Scotia and The Toronto-Dominion Bank. The Company refers to these entities, when acting in this capacity, individually as a “Forward Purchaser” and collectively as “Forward Purchasers.”
The Equity Distribution Agreements provide that, in addition to the issuance and sale of the Shares by the Company through the Sales Agents, the Company also may enter into forward sale agreements under the Master Confirmations. In connection with any particular forward sale agreement, the relevant Forward Purchaser or its affiliated Sales Agent will, at the Company’s request, borrow from third parties and, through such affiliated Sales Agent, sell a number of Shares equal to the number of Shares underlying the particular forward sale agreement. In no event will the aggregate number of Shares sold through the Sales Agents, whether as agents for the Company or as Forward Sellers, under the Equity Distribution Agreements and under any forward sale agreements, have an aggregate sales price in excess of $500,000,000.
The Company will not initially receive any proceeds from the sale of borrowed Shares by a Forward Seller. The Company expects to fully physically settle each particular forward sale agreement with the relevant Forward Purchaser on one or more dates specified by the Company on or prior to the maturity date of that particular forward sale agreement, in which case the Company will expect to receive aggregate net cash proceeds at settlement equal to the number of Shares underlying the particular forward sale agreement multiplied by the relevant forward sale price. However, the Company may also elect to cash settle or net share settle a particular forward sale agreement, in which case the Company may not receive any proceeds (in the case of cash settlement) or will not receive any proceeds (in the case of net share settlement), and the Company may owe cash (in the case of cash settlement) or Shares (in the case of net share settlement) to the relevant Forward Purchaser.
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The Sales Agents will offer the Shares at market prices prevailing at the time of sale. The Company will pay each Sales Agent a commission at a mutually agreed rate that will not exceed 2.0% of the gross sales price of the Shares issued by the Company and sold through the relevant Sales Agent as the Company’s sales agent under the relevant Equity Distribution Agreement. In connection with each forward sale agreement, the Company will pay the relevant Forward Seller, in the form of a reduced initial forward sale price under the related forward sale agreement with the related Forward Purchaser, commissions at a mutually agreed rate that will not exceed 2.0% of the gross sales prices of all borrowed Shares sold during the applicable forward hedge selling period by it as a Forward Seller. If any Sales Agent and/or Forward Seller, as applicable, engages in special selling efforts, as that term is used in Regulation M under the Securities Exchange Act of 1934, as amended, such Sales Agent and/or Forward Seller, as applicable, will receive from the Company a commission to be agreed upon at the time of sale.
The foregoing description of the Equity Distribution Agreements and the Master Confirmations does not purport to be complete and is qualified in its entirety by reference to the terms and conditions of the forms of Equity Distribution Agreement Amendments which are filed as Exhibits 1.1 and 1.2 and the form of 2020 Equity Distribution Agreement which is filed as Exhibit 1.3 and the form of Master Confirmation which is filed as Exhibit 1.4 to this Current Report and are incorporated herein by reference. The Shares will be issued pursuant to the Prospectus Supplement and the Company’s automatic shelf registration statement on Form S-3 (File No. 333-237145) filed on March 13, 2020 with the Securities and Exchange Commission. This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of the Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
| Item | 9.01(d) Financial Statements and Exhibits |
(i) Amendment No. 2 to the Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P. and SunTrust Robinson Humphrey, Inc.
(ii) Amendment No. 2 to the Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P. and BTIG, LLC
(iii) Amendment No. 2 to the Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P., JPMorgan Chase Bank, National Association and J.P. Morgan Securities LLC
(iv) Amendment No. 2 to the Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P., Bank of America, N.A. and BofA Securities, Inc.
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(i) Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P. and SMBC Nikko Securities America, Inc.
(ii) Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P. and Regions Securities LLC
(iii) Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P., The Bank of Nova Scotia and Scotia Capital (USA) Inc.
(iv) Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P., Bank of Montreal and BMO Capital Markets Corp.
(v) Equity Distribution Agreement, dated May 8, 2020, among Regency Centers Corporation, Regency Centers, L.P., TD Securities (USA) LLC and The Toronto-Dominion Bank
(i) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and Bank of America, N.A.
(ii) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and JPMorgan Chase Bank, National Association, New York Branch
(iii) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and Bank of Montreal
(iv) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and Mizuho Markets Americas LLC
(v) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and Jefferies LLC
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(vi) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and The Bank of Nova Scotia
(vii) Forward Master Confirmation, dated May 8, 2020, by and between Regency Centers Corporation and The Toronto-Dominion Bank
| Exhibit 5.1 | Opinion of Foley & Lardner LLP regarding the legality of the Shares. |
| Exhibit 23.1 | Consent of Foley & Lardner LLP (included in Exhibit 5.1) |
| Exhibit 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| REGENCY CENTERS CORPORATION | ||||||||
| (registrant) | ||||||||
| May 8, 2020 |
By: |
/s/ Michael R. Herman | ||||||
| Michael R. Herman, Senior Vice President, General Counsel | ||||||||
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Exhibit 1.1
REGENCY CENTERS CORPORATION
AMENDMENT NO. 2 TO THE
EQUITY DISTRIBUTION AGREEMENT
May 8, 2020
Wells Fargo Securities, LLC
500 West 33rd Street
New York, New York 10001
Wells Fargo Bank, National Association
c/o Wells Fargo Securities, LLC
500 West 33rd Street
New York, New York 10001
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement dated May 17, 2017 (as amended from time to time, the “Agreement”), among Regency Centers Corporation, a Florida corporation (the “Company”), Regency Centers, L.P., a Delaware limited partnership (the “Partnership”), Wells Fargo Bank, National Association (the “Forward Purchaser”) and Wells Fargo Securities, LLC (the “Agent” or the “Forward Seller”). In consideration of the mutual promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Partnership, the Forward Purchaser, the Forward Seller and the Agent hereby agree to enter into this Amendment No. 2 to the Agreement, dated the date hereof (the “Amendment No. 2”), with the purpose of amending certain terms of the Agreement.
SECTION 1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
SECTION 2. Amendment of the Agreement.
(a) The first six paragraphs of Section 1, Description of Shares, shall be replaced in their entirety as follows:
The Company has authorized and proposes to issue and sell, in the manner contemplated by this Agreement, shares of the Company’s common stock, par value $0.01 per share (“Common Stock”) upon the terms and subject to the conditions contained herein. The issuance and sale of the Shares (as defined below) will be effected pursuant to the Registration Statement (as defined below) filed by the Company under the Securities Act of 1933, as amended (collectively with the rules and regulations thereunder, the “Securities Act”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Shares.
The Company has filed, in accordance with the provisions of the Securities Act, with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-217081) (the “Original Registration Statement”), including a base prospectus, relating to certain securities, including the Shares to be issued from time to time by the Company, which shelf registration statement became effective upon filing under Rule 462(e) of the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the
base prospectus included as part of the Original Registration Statement specifically relating to the Shares (the “Original Prospectus Supplement”). Except where the context otherwise requires, the “Registration Statement” refers to (i) initially, the Original Registration Statement and (ii) on and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, the registration statement, if any, filed by the Company for the purpose of continuing the offering of the Shares following any such date (the “Replacement Registration Statement”), in each case, as amended when it became or becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B under the Securities Act (the “Rule 430B Information”). The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, supplemented by the most recent prospectus supplement prepared by the Company specifically relating to the Shares, which shall initially be the Original Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” The Shares having an aggregate sales price of up to the amount provided in the Prospectus shall be referred to as the Maximum Amount (the “Maximum Amount”). Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433 under the Securities Act, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Shares by Agent outside of the United States.
Agent has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein. The Forward Seller has been appointed by the Company and the Forward Purchaser as agent to sell the Forward Hedge Shares and agrees with the Company and
the Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares to be borrowed by the Forward Purchaser or its affiliate and offered on behalf of the Company upon the terms and subject to the conditions contained herein. Notwithstanding any other provision of this Agreement, if a Forward Seller and Forward Purchaser have not been identified in the introductory paragraph of this Agreement and have not executed this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller, the Forward Purchaser and Forwards are not applicable hereunder and no sales of Forward Hedge Shares shall take place pursuant to this Agreement.
The Company and the Partnership have previously entered into other separate equity distribution agreements (collectively, the “Separate Distribution Agreements”) with other parties (and, as applicable, their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward purchaser thereunder, a “Separate Agent”), for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time through the applicable Separate Agents on the terms set forth in the applicable Separate Distribution Agreements. The Company and the Partnership may also in the future enter into additional equity distribution agreements (the “Alternative Distribution Agreements”) with one or more additional agents and/or principals, forward sellers and forward purchasers (together with the Separate Agents, the “Alternative Agents”).
(b) Section 5(a)(11), Representations and Warranties by the Company and the Partnership (Capitalization), shall be replaced in its entirety as follows:
All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company; the capital stock of the Company conforms in all material respects to the description thereof in the Registration Statement and the Prospectus; except as set forth on Exhibit E or the Prospectus, all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except as set forth on Exhibit E or the Prospectus and for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and the Partnership has an authorized capitalization as set forth in the Prospectus, and all of the issued partnership interests of the Partnership have been duly and validly authorized and issued and are fully paid and non-assessable; and there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any shares of capital stock of the Company or any of its subsidiaries other than those described in the Registration Statement and the Prospectus.
(c) The following paragraph (51) shall be added to the end of Section 5(a), Representations and Warranties by the Company and the Partnership:
(51) Cybersecurity. Except as disclosed in the Registration Statement and the Prospectus, (i) (x) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ (including the Partnership’s) information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data, other than, in the case of this clause (i), any breaches or compromises that are not, individually or in the aggregate, material and as to which the Company or the Partnership does not reasonably expect to make any public disclosure; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(d) Section 14, Notices, shall be replaced in its entirety as follows:
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to Agent and/or Forward Seller shall be sent to Wells Fargo Securities, LLC, 500 West 33rd Street, New York, New York 10001, Attention: Equity Syndicate Department (facsimile (212) 214-5918), with a copy to (which shall not constitute notice) Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043); notices to the Forward Purchaser shall be sent to Wells Fargo Bank National Association, 500 West 33rd Street, New York, New York 10001, Attention: Structuring Services Group (facsimile (212) 214-5913), with a copy to (which shall not constitute notice) CorporateDerivativeNotifications@wellsfargo.com, with a copy to (which shall not constitute notice) Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043) and with a copy to (which shall not constitute notice) Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attention: Mark M. Mendez (facsimile (212) 701-5829) and notices to the Company shall be directed to it at One Independent Drive, Suite 114, Jacksonville, Florida 32202 Attention: Michael Mas (facsimile (904) 355-5477),with a copy to (which shall not constitute notice) Foley & Lardner, One Independent Drive, Suite 1300, Jacksonville, Florida 32202 , Attention: Michael B. Kirwan (facsimile (904) 359-8700).
(e) Exhibit B of the Agreement shall be amended by deleting Exhibit B in its entirety and replacing it with Exhibit A attached hereto.
(f) Exhibit C of the Agreement shall be amended by deleting Exhibit C in its entirety and replacing it with Exhibit B attached hereto.
(g) Exhibit E of the Agreement shall be amended by deleting Exhibit E in its entirety and replacing it with Exhibit C attached hereto.
SECTION 3. Effectiveness. This Amendment No. 2 shall automatically become effective as of the date hereof and all references in the Agreement to “this Agreement” or the like shall refer to the Agreement as further amended hereby.
SECTION 4. Counterparts. This Amendment No. 2 may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which shall be deemed an original, and all of which shall together constitute one and the same instrument.
SECTION 5. Law; Construction. THIS AMENDMENT NO. 2 AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING OUT OF THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Entire Agreement. This Amendment No. 2 and the Agreement as further amended hereby constitute the entire agreement and understanding between the parties hereto and supersede any and all prior agreements and understandings relating to the subject matter hereof. Except as further amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Forward Seller, Forward Purchaser, the Agent, the Company and the Partnership in accordance with its terms.
| Very truly yours, | ||||||
| REGENCY CENTERS CORPORATION | ||||||
| By: | /s/ Lisa Palmer | |||||
| Name: | Lisa Palmer | |||||
| Title: | President and Chief Executive Officer | |||||
| REGENCY CENTERS, L.P. | ||||||
| By: | Regency Centers Corporation, | |||||
| its general partner | ||||||
| By: | /s/ Lisa Palmer | |||||
| Name: Lisa Palmer | ||||||
| Title: President and Chief Executive Officer | ||||||
| CONFIRMED AND ACCEPTED, as of the date first above written: | ||||
| Wells Fargo Securities, LLC, as Agent | ||||
| By: | /s/ Richard Tobin | |||
| Name: | Richard Tobin | |||
| Title: | Managing Director | |||
Wells Fargo Securities, LLC, as Forward Seller
| By: | /s/ Richard Tobin | |||
| Name: | Richard Tobin | |||
| Title: | Managing Director | |||
Wells Fargo Bank, National Association, as Forward Purchaser
| By: | /s/ Thomas Yates | |||
| Name: | Thomas Yates | |||
| Title: | Managing Director | |||
Exhibit A
EXHIBIT B
COMPANY AND AGENT REPRESENTATIVES FOR NOTICE
Company Representatives for Notice:
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
Agent Representatives for Notice:
| Name |
|
Phone | ||
| Jennifer Lynch |
Jennifer.R.Lynch@wellsfargo.com | (212) 214-6122 | ||
| Billy O’Connell |
william.oconnell@wellsfargo.com | (212) 214-6127 | ||
| Josie Callanan |
josie.callanan@wellsfargo.com | (212) 214-6128 | ||
| Billy Wright |
billy.wright@wellsfargo.com | (804) 697-6878 | ||
| Meagan Welch Brandriff |
meagan.brandriff@wellsfargo.com | (706) 207-2227 | ||
| Chris Flouhouse |
chris.flouhouse@wellsfargo.com | (704) 410-1096 | ||
| Rohit Mehta |
Rohit.Mehta2@wellsfargo.com | (212) 214-6390 | ||
Forward Seller Representatives for Notice:
| Name |
|
Phone | ||
| Jennifer Lynch |
Jennifer.R.Lynch@wellsfargo.com | (212) 214-6122 | ||
| Billy O’Connell |
william.oconnell@wellsfargo.com | (212) 214-6127 | ||
| Josie Callanan |
josie.callanan@wellsfargo.com | (212) 214-6128 | ||
| Billy Wright |
billy.wright@wellsfargo.com | (804) 697-6878 | ||
| Meagan Welch Brandriff |
meagan.brandriff@wellsfargo.com | (706) 207-2227 | ||
| Chris Flouhouse |
chris.flouhouse@wellsfargo.com | (704) 410-1096 | ||
| Rohit Mehta |
Rohit.Mehta2@wellsfargo.com | (212) 214-6390 | ||
| CorporateDerivativeNotifications@wellsfargo.com |
Forward Purchaser Representatives for Notice:
| Name |
|
Phone | ||
| Jennifer Lynch |
Jennifer.R.Lynch@wellsfargo.com | (212) 214-6122 | ||
| Billy O’Connell |
william.oconnell@wellsfargo.com | (212) 214-6127 | ||
| Josie Callanan |
josie.callanan@wellsfargo.com | (212) 214-6128 | ||
| Billy Wright |
billy.wright@wellsfargo.com | (804) 697-6878 | ||
| Meagan Welch Brandriff |
meagan.brandriff@wellsfargo.com | (706) 207-2227 | ||
| Chris Flouhouse |
chris.flouhouse@wellsfargo.com | (704) 410-1096 | ||
| Rohit Mehta |
Rohit.Mehta2@wellsfargo.com | (212) 214-6390 | ||
| CorporateDerivativeNotifications@wellsfargo.com |
Exhibit B
EXHIBIT C
COMPANY REPRESENTATIVES FOR TRADE CONFIRMATIONS
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
Exhibit C
EXHIBIT E
SUBSIDIARIES OF THE COMPANY
As of May 1, 2020
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Regency Centers, L.P. |
Delaware | Regency Centers Corporation Outside Investors |
General Partner Limited Partners |
|
~99.6 ~0.4metuc |
% % | ||||
| Columbia Cameron Village SPE, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
30 70 |
% % | ||||
| Columbia Cameron Village, LLC |
Delaware | Columbia Cameron Village SPE, LLC | Member | 100 | % | |||||
| Columbia Regency Retail Partners, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia Crossroads Commons, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Dulles, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Texas 3, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Sweetwater Plaza, LP |
Delaware | Columbia Retail Texas 3, LLC Columbia Regency Retail Partners, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Columbia Retail Washington 1, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Cascade Plaza, LLC |
Delaware | Columbia Retail Washington 1, LLC Columbia Regency Retail Partners, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| Columbia Julington Village, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Palm Valley Marketplace, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Regency Partners II, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia II Broadway Market, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Burnt Mills Shopping Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Cochran Commons, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Hollymead Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Hollymead, LLC |
Delaware | Hollymead Town Center, LLC | Member | 100 | % | |||||
| Columbia II Johns Creek, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Ridgewood, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Lorton Station Marketplace Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| 1 | Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company. |
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Columbia Lorton Station Marketplace, LLC |
Delaware | Columbia Lorton Station Marketplace Member, LLC |
Member | 100 | % | |||||
| Columbia Lorton Station Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Marina Shores, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Plantation Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Plantation Plaza, LLC |
Delaware | Columbia Plantation Plaza Member, LLC | Member | 100 | % | |||||
| Columbia II Rockridge Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Retail Shorewood Crossing, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 2 Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 2, LLC |
Delaware | Columbia Shorewood Crossing Phase 2 Member, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 3, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Signal Hill Two, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Signal Hill, LLC |
Delaware | Signal Hill Two, LLC | Member | 100 | % | |||||
| Columbia Speedway Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Speedway Plaza, LLC |
Delaware | Columbia Speedway Plaza Member, LLC | Member | 100 | % | |||||
| Columbia Sutton Square, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Holding, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Raley’s Center, LLC |
Delaware | Columbia II Holding, LLC | Member | 100 | % | |||||
| Columbia II Village Plaza, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| GRI-Regency, LLC |
Delaware | Global Retail Investors, LLC Regency Centers, L.P. |
Member Managing Member |
|
60 40 |
% % | ||||
| GRI-Lake Grove, LLC |
Delaware | GRI-Regency Lake Grove Member, LLC | Member | 100 | % | |||||
| GRI-Regency Lake Grove Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Mercer Square, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Newtown Square, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Warwick Plaza, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s, LLC (fka MCW-RC South Carolina, LLC) |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s Village Member, LLC |
Delaware | MCW-RC SC-Merchant’s, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s Village, LLC |
Delaware | MCW-RC SC-Merchant’s Village Member, LLC | Member | 100 | % | |||||
| FW-CA Brea Marketplace Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW CA-Brea Marketplace, LLC |
Delaware | FW-CA Brea Marketplace Member, LLC | Member | 100 | % | |||||
| FW CA-Brea Marketplace II, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| U.S. Retail Partners Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| U.S. Retail Partners Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| U.S. Retail Partners, LLC |
Delaware | U.S. Retail Partners Holding, LLC U.S. Retail Partners Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW CO-Arapahoe Village, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW CO-Cherrywood Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW MN-Rockford Road, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW CO-Ralston Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW MN-Colonial Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| USRP I Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP I Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP I, LLC |
Delaware | USRP I Holding, LLC USRP I Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW NJ-Plaza Square, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW VA-Greenbriar Town Center, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW VA-Festival at Manchester, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW-Reg II Holdings, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW CA-Bay Hill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Five Points Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Mariposa Gardens Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Navajo Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Point Loma Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Rancho San Diego Village, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Silverado Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Snell & Branham Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Twin Oaks Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Ygnacio Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CT-Corbins Corner Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW DC-Spring Valley Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Riverside/Rivers Edge, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Riverview Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Stonebrook Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| USRP Willow East, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Ashburn Farm Village Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Centre Ridge Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Fox Mill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Kings Park Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| FW VA-Saratoga Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-The Village Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Aurora Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Eastgate Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Eastgate Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Overlake Fashion Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Overlake Fashion Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| Parkville Shopping Center, LLC |
Maryland | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW-Reg II Holding Company Two, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW IL-McHenry Commons Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Granada Village, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Laguna Niguel Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Pleasant Hill Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW IL-Civic Center Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW IN-Willow Lake West, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW NJ-Westmont Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW NC-Shoppes of Kildaire, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW OR-Greenway Town Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| USRP LP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| US Retail Partners Limited Partnership |
Delaware | USRP GP, LLC USRP LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD Woodmoor Borrower, LLC |
Delaware | US Retail Partners Limited Partnership | Member | 100 | % | |||||
| FW VA-Willston Centre II, LLC |
Delaware | US Retail Partners Limited Partnership | Member | 100 | % | |||||
| FW Woodholme GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Woodholme Properties Limited Partnership |
Maryland | FW Woodholme GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodholme Borrower, LLC |
Delaware | Woodholme Properties Limited Partnership | Member | 100 | % | |||||
| FW Southside Marketplace GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Southside Marketplace Limited Partnership |
Maryland | FW Southside Marketplace GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Southside Marketplace Borrower, LLC |
Delaware | Southside Marketplace Limited Partnership | Member | 100 | % | |||||
| FW Valley Centre GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Greenspring Associates Limited Partnership |
Maryland | FW Valley Centre GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD-Greenspring Borrower, LLC |
Delaware | Greenspring Associates Limited Partnership | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Eastern Shopping Centers I, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Cloppers Mill Village Center, LLC |
Maryland | Eastern Shopping Centers I, LLC FW-Reg II Holdings, LLC |
Member Member |
|
1 99 |
% % | ||||
| City Line Shopping Center Associates |
Pennsylvania | US Retail Partners Limited Partnership City Line LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| City Line LP, LLC |
Delaware | USRP LP, LLC | Member | 100 | % | |||||
| FW Allenbeth GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Allenbeth Associates Limited Partnership |
Maryland | FW Allenbeth GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Weslyan GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW TX-Weslyan Plaza, L.P. |
Delaware | FW Weslyan GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodway GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW TX-Woodway Collection, L.P. |
Delaware | FW Woodway GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Gayton Crossing Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW VA-Gayton Crossing Shopping Center, LLC |
Delaware | FW Gayton Crossing Holding, LLC | Member | 100 | % | |||||
| MCW RC III Hilltop Village Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW RC III Hilltop Village, LLC |
Delaware | MCW RC III Hilltop Village Member, LLC | Member | 100 | % | |||||
| MCW-RD Brentwood Plaza, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Bridgeton, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Dardenne Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Kirkwood Commons Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Kirkwood Commons, LLC |
Delaware | MCW-RD Kirkwood Commons Member, LLC | Member | 100 | % | |||||
| RegCal, LLC |
Delaware | California State Teachers Retirement System Regency Centers, L.P. |
Member Managing Member |
|
75 25 |
% % | ||||
| RegCal Holding, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Apple Valley Square Member, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Apple Valley Square, LLC |
Delaware | CAR Apple Valley Square Member, LLC | Member | 100 | % | |||||
| CAR Apple Valley Land, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Braemar Village, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Calhoun Commons, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Corral Hollow, LLC |
Delaware | RegCal Holding, LLC | Member | 100 | % | |||||
| CAR Providence Commons, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Shops at the Columbia, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| KF-REG Holding, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| KF-REG Associates, LLC |
Delaware | KF-REG Holding, LLC | Member | 100 | % | |||||
| King Farm Center, LLC |
Delaware | KF-REG Associates, LLC | Member | 100 | % | |||||
| US Regency Retail REIT I |
Texas | US Southern Retail, LLC US Republic Core Fund, L.P. Regency Centers, L.P. |
Common Stock Common Stock Common Stock |
|
57.27 23.53 19.20 |
% % % | ||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| US Regency Retail I, LLC |
Delaware | US Regency Retail REIT I Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| RC FL-Anastasia, LLC (fka MCW-RC FL-Anastasia, LLC) |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RC FL-Shoppes at 104, LLC (fka MCW-RC FL-Shoppes at 104, LLC) |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RC GA-Howell Mill, LLC (fka MCW-RC GA-Howell Mill Village, LLC) |
Delaware | Regency Centers, LLC | Member | 100 | % | |||||
| MCD-RC CA-Amerige, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCD-RC El Cerrito Holdings, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCD-RC CA-El Cerrito, LLC |
Delaware | MCD-RC El Cerrito Holdings, LLC | Member | 100 | % | |||||
| REG8 Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| REG8 Tassajara Crossing, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Plaza Hermosa, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Sequoia Station, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Mockingbird Commons, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Sterling Ridge, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Prestonbrook Crossing, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Wellington, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Berkshire Commons, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| FL-Corkscrew Village Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Corkscrew Village, LLC |
Delaware | FL-Corkscrew Village Member, LLC | Member | 100 | % | |||||
| FL-Naples Walk Shopping Center Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Naples Walk Shopping Center, LLC |
Delaware | FL-Naples Walk Shopping Center Member, LLC | Member | 100 | % | |||||
| FL-Northgate Square Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Northgate Square, LLC |
Delaware | FL-Northgate Square Member, LLC | Member | 100 | % | |||||
| FL-Westchase Center Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Westchase Center, LLC |
Delaware | FL-Westchase Center Member, LLC | Member | 100 | % | |||||
| 19330 Hawthorne, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 1C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 60617 Balboa Mesa, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 4S Regency Partners, LLC |
Delaware | Regency Centers, L.P. 4S Ranch Company 1700, L.P. |
Member Member |
|
85 15 |
% % | ||||
| Alba Village Phase II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Alba Village Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bartram Park Center, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Belleview Square, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Belmont Chase, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bridges Insurance Company |
South Carolina | Regency Centers, L.P. | Shareholder | 100 | % | |||||
| Buckwalter Bluffton, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Caligo Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interes1 |
% of Ownership |
||||||
| CityLine-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clayton Valley Shopping Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clybourn Commons-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Colonnade Regency, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Corvallis Market Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| CPGPI Regency Erwin, LLC |
Delaware | Regency Centers, L.P. CPGPI Erwin Retail, LLC |
Managing Member Member |
|
55 45 |
% % | ||||
| Fairfax Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Fellsway Associates Holdings Company, LLC |
Delaware | Regency Centers, L.P. Charter Fellsway, LLC Charter Fellsway Group, LLC |
Member Member Member |
|
75 24 1 |
% % % | ||||
| Fellsway Associates, LLC |
Delaware | Fellsway Associates Holdings Company, LLC | Member | 100 | % | |||||
| Fellsway Property, LLC |
Delaware | Fellsway Associates Holdings Company, LLC | Member | 100 | % | |||||
| Fontainebleau Square, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway 101, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway Azco GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway Azco LP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| AZCO Partners |
Pennsylvania | Gateway Azco Partners GP, LLC Gateway Azco LP, LLC Regency Centers, L.P. |
General Partner Limited Partner Limited Partner |
|
1 89 10 |
% % % | ||||
| Glen Oak Glenview, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Grand Ridge Plaza I, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Grand Ridge Plaza II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hibernia North, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hickory Creek Plaza, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hoadly Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Holly Park Property, LLC |
Delaware | Regency Centers, L.P. Purser HP, LLC |
Managing Member Member |
|
99.273 .0727 |
% % | ||||
| Hunters Lake Tampa, LLC |
Delaware | Regency Centers, L.P. Harrison Bennett Properties, LLC |
Managing Member Member |
Varies | ||||||
| Indian Springs at Woodlands, Ltd. |
Texas | Indian Springs GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
0.1 99.9 |
% % | ||||
| Indian Springs GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Indio Jackson, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Kent Place Regency, LLC |
Delaware | Regency Centers, L.P. Kent Place Investors, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| La Floresta Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Lee Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| The Marketplace at Briargate, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Murfreesboro North, LLC |
Delaware | Regency Centers, L.P. BSM County Farm Road, LLC |
Managing Member Member |
varies | ||||||
| NSHE Winnebago, LLC |
Arizona | Regency Centers, L.P. | Member | 100 | % | |||||
| NTC-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| New Smyrna Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Northlake Village Shopping Center, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Oakshade Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Ocala Corners, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Otay Mesa Crossing, LLC |
Delaware | Regency Centers, L.P. Transcan Otay Mesa, LLC |
Managing Member Member |
Varies | ||||||
| Parmer Tech Ridge, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Acquisitions, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Advisors, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Red Bank Village, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Blue Ash, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Marinita-LaQuinta, LLC |
Delaware | Regency Centers, L.P. Marinita Development Co. |
Managing Member Member |
Varies | ||||||
| Regency NC GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency-Kleban Properties, LLC |
Delaware | Regency Centers, L.P. Brick Walk Associates, LLC Pine Tree Ventures, LLC Bright Star, LLC 1261 Post Road Associates, LLC Kleban Holding Company, LLC Kleban Holding Company II, LLC Kleban Fairfield, LLC Alida Kleban Holding Company, LLC Sun Realty Associates, LLC Kleban Development Company FBW, LLC |
Member Member Member Member Member Member Member Member Member Member Member Member |
|
80.0000 5.1676 1.1789 0.9871 1.3768 2.6451 0.7769 1.1790 0.8306 3.9009 0.4598 1.4973 |
% % % % % % % % % % % % | ||||
| R-K Brick Walk I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk II, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk III, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk IV, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk V, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield IV, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield V, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock II, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock III, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| Regency Petaluma, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Remediation, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Village at Dublin, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Sandy Springs Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| SEPR Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Saugus, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Mira Vista Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shoppes on Riverside Jax, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Southpark Cinco Ranch, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Spring Hill Town Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| T&R New Albany Development Company, LLC |
Ohio | Regency Centers, L.P. Topvalco |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood-Pebblebrooke, LLC |
Delaware | Tinwood, LLC | Member | 100 | % | |||||
| Twin City Plaza Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Twin City Plaza, LLC |
Delaware | Twin City Plaza Member, LLC | Member | 100 | % | |||||
| UC Shopping Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Uncommon, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Uptown Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Uptown District Regency, LLC |
Delaware | Uptown Member, LLC | Member | 100 | % | |||||
| WFC-Purnell, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Willow Festival Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Willow Oaks Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. | Common Stock | 100 | % | |||||
| 1488-2978 SC GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 1488-2978 SC, L.P. |
Texas | 1488-2978 SC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Centerplace of Greeley III, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Culpeper Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| East San Marco, LLC |
Florida | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Kulpsville Village Center LP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Kulpsville Village Center, L.P. |
Delaware | RRG Pennsylvania GP, Inc. Kulpsville Village Center LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Lower Nazareth LP Holding, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Lower Nazareth Partner, LP |
Delaware | Regency Realty Group, Inc. Lower Nazareth LP Holding, LLC |
Limited Partner General Partner |
|
100 0 |
% % | ||||
| Lower Nazareth GP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Lower Nazareth Commons, LP |
Delaware | Lower Nazareth GP, LLC Lower Nazareth Partner, LP |
General Partner Limited Partner |
|
.5 99.5 |
% % | ||||
| NorthGate Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Paso Golden Hill, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| RB Schererville Crossings, LLC |
Delaware | Regency Realty Group, Inc. WH41, LLC |
Managing Member Member |
Varies | ||||||
| Baronhawks, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| RRG Net, LLC |
Florida | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Regency Solar, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Regency Solar II, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Seminole Shoppes, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Highland Village GP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Shops at Highland Village Development, Ltd. |
Delaware | Shops at Highland Village GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Shops at Quail Creek, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Stonewall Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RRG Pennsylvania GP, Inc. |
Florida | Regency Realty Group, Inc. | Common Stock | 100 | % | |||||
| US Regency Hasley Canyon Village, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Blossom Valley, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Alden Bridge, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Bethany Park Place, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Shiloh Springs, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Willa Springs, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Dunwoody Hall, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Maynard Crossing, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Clarendon Regency I, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Mellody Farm, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Springwoods Village Stuebner/Regency, LLC |
Delaware | Regency Centers, L.P. Spring RRC I, LLC |
Managing Member Member |
|
53 47 |
% % | ||||
| Spring Stuebner RRC I Inc. |
Delaware | Springwoods Village Stuebner/Regency, LLC | Member | 100 | % | |||||
| Culver Public Market, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency III, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency IV, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency V, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 2C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Klahanie Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Commonwealth Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Commonwealth Regency II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bridgewater Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Midtown East Regency-ITB, LLC |
Delaware | Regency Centers, L.P. I.T.B. Holdings, L.L.C. |
Member Member |
50 | %50% | |||||
| The Village at Riverstone, LLC |
Delaware | Regency Centers, L.P. RIVJV, LLC |
Managing Member Member |
varies | ||||||
| Columbia II Plaza Venezia, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Chimney Rock LQR, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Garden City Park, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Pinecrest Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Springing Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Goodwyn, LLC |
Delaware | Regency Centers, L.P. Richmond Shopping Center, Inc. and Goodwyn Bros. General Partnership |
Managing Member Member |
Varies | ||||||
| Indigo Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 5510-5520 Broadway, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity Asset Investor (Talega) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Bridgemill) LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Copps Hill) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Florida Portfolio) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Louisiana Portfolio) LLC |
Florida | Louisiana Holding LLC | Member | 100 | % | |||||
| Equity One (Northeast Portfolio) LLC |
Massachusetts | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (San Carlos) LLC |
Delaware | Equity One (West Coast Portfolio) LLC | Member | 100 | % | |||||
| Equity One (Sheridan Plaza) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Southeast Portfolio) LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Summerlin) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Westbury Plaza) LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (West Coast Portfolio) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Westport) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| Equity One (Westport Village Center) LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One Realty & Management NE, LLC |
Massachusetts | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Management, LLC f/k/a Equity One Realty & Management SE, LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Portfolio Investor (Empire) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Portfolio Investor (GRI) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| GRI-EQY (Concord) LLC |
Delaware | EQY Portfolio Investor (GRI) LLC | Member | 100 | % | |||||
| Harvard Collection LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| IRT Management LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| IRT Partners, L.P. |
Georgia | Regency Centers, L.P. IRT Management LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Louisiana Holding LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Southbury Spirits Member, LLC |
Connecticut | Regency Centers, L.P. | Member | 100 | % | |||||
| Southbury Spirits, LLC |
Connecticut | Southbury Spirits Member, LLC | Member | 100 | % | |||||
| IRT Capital Corporation II |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| DIM Vastgoed N.V. |
Netherlands | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY-CSC, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| C&C (US) No. 1, Inc. |
Delaware | Regency Centers. L.P. Outside Investors |
Common Stock Preferred Stock |
|
100 varies |
%
| ||||
| C&C Delaware, Inc. |
Delaware | C&C (US) No. 1, Inc. | Common Stock | 100 | % | |||||
| 621 Colorado Associates, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Culver) LLC |
Delaware | 621 Colorado Associates, LLC | Member | 100 | % | |||||
| Equity One Realty & Management CA, Inc. |
Delaware | C&C (US) No. 1, Inc. | Common Stock | 100 | % | |||||
| Equity One (Circle West) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Compo Acres) LLC |
Connecticut | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Darinor) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Metropolitan) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Post Road) LLC |
Connecticut | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Ralphs Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Vons Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Marketplace Center, Inc. |
California | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| Daly City Serramonte Center, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Serramonte Center Holding Co. LLC |
Delaware | Daly City Serramonte Center, LLC | Member | 100 | % | |||||
| Willows Center Concord, Inc. |
California | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| Willows Center Concord, LLC |
California | Willows Center Concord, Inc. | Member | 100 | % | |||||
| G.S. Associates Holding Corp. |
Delaware | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| G.S. Associates Joint Venture 326118 |
California | Equity One Realty & Management CA, Inc. G.S. Associates Holding Corp. |
Partner Partner |
|
99.9 0.1 |
% % | ||||
| Escuela Shopping Center, LLC |
Delaware | G.S. Associates Joint Venture 326118 | Member | 100 | % | |||||
| Equity One JV Portfolio LLC |
Delaware | EQY Portfolio Investor (Empire) LLC New York Common Fund |
Managing Member Member |
|
30 70 |
% % | ||||
| Equity One JV Sub Riverfront Plaza LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One (Country Walk) LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub CT Path LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Veranda LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Northborough LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Grove LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Sunlake-Equity One LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Talega LLC |
Delaware | Equity Asset Investor (Talega) LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center JV, LLC |
Delaware | EQY Talega LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center, LLC |
Delaware | Talega Village Center JV, LLC | Member | 100 | % | |||||
| Riverstone Market SWC, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Columbia II Metuchen, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Glengary Shoppes LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Hammocks Town Center LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Magnolia Shoppes LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Scripps REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hewlett I Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hewlett II Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Roosevelt Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Rivertowns Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops on Main LQR, LLC |
Indiana | RB Schererville Crossings, LLC | Member | 100 | % | |||||
| Block in Ballard II, LLC |
Delaware | Block in Ballard II JV, LLC | Member | 100 | % | |||||
| Block in Ballard II JV, LLC |
Delaware | Regency Centers, L.P. 1290 Broadway Lane REIT, LLC |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard I JV, LLC |
Delaware | Regency Centers, L.P. Principal Enhanced Property Fund, L.P. |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard, LLC |
Delaware | Reflections at the Lake REIT, LLC | Member | 100 | % | |||||
| Reflections at the Lake REIT, LLC |
Delaware | Block in Ballard I JV, LLC | Member | 100 | % | |||||
| Melrose Market Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| TF REG, LLC |
Delaware | Regency Centers, L.P. Outside Investors |
Managing Member Members |
|
18.375 varies |
%
| ||||
| New Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Falls Church Regency, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest1 |
% of Ownership |
||||||
| FCC Member 1 LLC |
Delaware | Falls Church Regency, LLC EYA FCC Investments LLC |
Member Managing Member |
|
75 25 |
% % | ||||
| Falls Church Commons JV, LLC |
Delaware | FCC Member 1 LLC PNH WFC LLC |
Member Member |
|
50 50 |
% % | ||||
| 6401 Roosevelt Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Pruneyard Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Old Bridge Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Old Bridge Regency-Village, LLC |
Delaware | Old Bridge Regency, LLC Village Old Bridge LLC |
Member Member |
|
80 20 |
% % | ||||
| Restaurant Ventures, LLC |
Delaware | RB Schererville Crossings, LLC | Member | 100 | % | |||||
| NRRG Net, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Stonewall Regency Lending, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Regency Protective Trust II |
Florida | New Regency Realty Group, Inc. | Beneficiary | 100 | % | |||||
| Midtown Junction, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| NRRG Investments I, Inc. |
Florida | New Regency Realty Group, Inc. | Common Stock | 100 | % | |||||
| Regency Kensington Bethesda Member, LLC |
Maryland | NRRG Investments I, Inc. | Member | 100 | % | |||||
| Regency Kensington Bethesda Owner, LLC |
Maryland | Regency Centers, L.P. | Member | 100 | % | |||||
Exhibit 1.2
REGENCY CENTERS CORPORATION
AMENDMENT NO. 2 TO THE
EQUITY DISTRIBUTION AGREEMENT
May 8, 2020
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Mizuho Markets Americas LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Ladies and Gentlemen:
Reference is made to the Equity Distribution Agreement dated May 17, 2017 (as amended from time to time, the “Agreement”), among Regency Centers Corporation, a Florida corporation (the “Company”), Regency Centers, L.P., a Delaware limited partnership (the “Partnership”) and Mizuho Securities USA LLC (the “Agent”). In consideration of the mutual promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Partnership and the Agent hereby agree to enter into this Amendment No. 2 to the Agreement, dated the date hereof (the “Amendment No. 2”), with the purpose of amending certain terms of the Agreement, which include admitting Mizuho Markets Americas LLC to the Agreement as a purchaser under any Forward Contract (as defined in the Agreement) (the “Forward Purchaser”) and Mizuho Securities USA LLC as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined in the Agreement) (the “Forward Seller”).
SECTION 1. Definitions. Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings assigned thereto in the Agreement.
SECTION 2. Amendment of the Agreement.
(a) The first paragraph of the Agreement shall be replaced in its entirety as follows:
Regency Centers Corporation, a Florida corporation (the “Company”), which is the general partner of Regency Centers, L.P., a Delaware limited partnership (the “Partnership”), confirms its agreement (this “Agreement”) with Mizuho Markets Americas LLC (in its capacity as purchaser under any Forward Contract (as defined below), the “Forward Purchaser”) and Mizuho Securities USA LLC (in its capacity as agent for the Company and/or principal in connection with the offering and sale of any Issuance Shares (as defined below) hereunder, “Agent,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined below) hereunder, the “Forward Seller”), as follows:
(b) The first six paragraphs of Section 1, Description of Shares, shall be replaced in their entirety as follows:
The Company has authorized and proposes to issue and sell, in the manner contemplated by this Agreement, shares of the Company’s common stock, par value $0.01 per share (“Common Stock”) upon the terms and subject to the conditions contained herein. The issuance and sale of the Shares (as defined below) will be effected pursuant to the Registration Statement (as defined below) filed by the Company under the Securities Act of 1933, as amended (collectively with the rules and regulations thereunder, the “Securities Act”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Shares.
The Company has filed, in accordance with the provisions of the Securities Act, with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-217081) (the “Original Registration Statement”), including a base prospectus, relating to certain securities, including the Shares to be issued from time to time by the Company, which shelf registration statement became effective upon filing under Rule 462(e) of the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the Original Registration Statement specifically relating to the Shares (the “Original Prospectus Supplement”). Except where the context otherwise requires, the “Registration Statement” refers to (i) initially, the Original Registration Statement and (ii) on and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, the registration statement, if any, filed by the Company for the purpose of continuing the offering of the Shares following any such date (the “Replacement Registration Statement”), in each case, as amended when it became or becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B under the Securities Act (the “Rule 430B Information”). The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, supplemented by the most recent prospectus supplement prepared by the Company specifically relating to the Shares, which shall initially be the Original Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” The Shares having an aggregate sales price of up to the amount provided in the Prospectus shall be referred to as the Maximum Amount (the “Maximum Amount”). Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433 under the Securities Act, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Shares by Agent outside of the United States.
Agent has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein. The Forward Seller has been appointed by the Company and the Forward Purchaser as agent to sell the Forward Hedge Shares and agrees with the Company and the Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares to be borrowed by the Forward Purchaser or its affiliate and offered on behalf of the Company upon the terms and subject to the conditions contained herein. Notwithstanding any other provision of this Agreement, if a Forward Seller and Forward Purchaser have not been identified in the introductory paragraph of this Agreement and have not executed this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller, the Forward Purchaser and Forwards are not applicable hereunder and no sales of Forward Hedge Shares shall take place pursuant to this Agreement.
The Company and the Partnership have previously entered into other separate equity distribution agreements (collectively, the “Separate Distribution Agreements”) with other parties (and, as applicable, their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward purchaser thereunder, a “Separate Agent”), for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time through the applicable Separate Agents on the terms set forth in the applicable Separate Distribution Agreements. The Company and the Partnership may also in the future enter into additional equity distribution agreements (the “Alternative Distribution Agreements”) with one or more additional agents and/or principals, forward sellers and forward purchasers (together with the Separate Agents, the “Alternative Agents”).
(c) Section 5(a)(11), Representations and Warranties by the Company and the Partnership (Capitalization), shall be replaced in its entirety as follows:
All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company; the capital stock of the Company conforms in all material respects to the description thereof in the Registration Statement and the Prospectus; except as set forth on Exhibit E or the Prospectus, all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except as set forth on Exhibit E or the Prospectus and for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and the Partnership has an authorized capitalization as set forth in the Prospectus, and all of the issued partnership interests of the Partnership have been duly and validly authorized and issued and are fully paid and non-assessable; and there are no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any shares of capital stock of the Company or any of its subsidiaries other than those described in the Registration Statement and the Prospectus.
(d) The following paragraph (51) shall be added to the end of Section 5(a) Representations and Warranties by the Company and the Partnership:
(51) Cybersecurity. Except as disclosed in the Registration Statement and the Prospectus, (i) (x) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ (including the Partnership’s) information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data, other than, in the case of this clause (i), any breaches or compromises that are not, individually or in the aggregate, material and as to which the Company or the Partnership does not reasonably expect to make any public disclosure; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(e) Section 14, Notices, shall be replaced in its entirety as follows:
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to Agent and/or the Forward Seller shall be sent to Mizuho Securities USA LLC, 1271 Avenue of the Americas, 3rd Floor, New York 10020, Attention: JT Deignan and Stephen Roney (emails: jt.deignan@mizuhogroup.com and stephen.roney@mizuhogroup.com), with a copy to (which shall not constitute notice) Sullivan & Cromwell LLP, 125 Broad Street,
New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043); notices to the Forward Purchaser shall be sent to Mizuho Securities USA LLC, 1271 Avenue of the Americas, 3rd Floor, New York, New York 10020, Attention Adam Hopkins (email: adam.hopkins@mizuhogroup.com), with a copy to (which shall not constitute notice) Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043) and with a copy to (which shall not constitute notice) Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attention: Mark M. Mendez (facsimile (212) 701-5829 and notices to the Company shall be directed to it at One Independent Drive, Suite 114, Jacksonville, Florida 32202 Attention: Michael Mas (facsimile (904) 355-5477),with a copy to (which shall not constitute notice) Foley & Lardner, One Independent Drive, Suite 1300, Jacksonville, Florida 32202 , Attention: Michael B. Kirwan (facsimile (904) 359-8700).
(f) Exhibit A of the Agreement shall be amended by deleting Exhibit A in its entirety and replacing it with Exhibit A attached hereto.
(g) Exhibit B of the Agreement shall be amended by deleting Exhibit B in its entirety and replacing it with Exhibit B attached hereto.
(h) Exhibit C of the Agreement shall be amended by deleting Exhibit C in its entirety and replacing it with Exhibit C attached hereto.
(i) Exhibit D of the Agreement shall be amended by deleting Exhibit D in its entirety and replacing it with Exhibit D attached hereto.
(j) Exhibit E of the Agreement shall be amended by deleting Exhibit E in its entirety and replacing it with Exhibit E attached hereto.
SECTION 3. Effectiveness. This Amendment No. 2 shall automatically become effective as of the date hereof and all references in the Agreement to “this Agreement” or the like shall refer to the Agreement as further amended hereby.
SECTION 4. Counterparts. This Amendment No. 2 may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which shall be deemed an original, and all of which shall together constitute one and the same instrument.
SECTION 5. Law; Construction. THIS AMENDMENT NO. 2 AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING OUT OF THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Entire Agreement. This Amendment No. 2 and the Agreement as further amended hereby constitute the entire agreement and understanding between the parties hereto and supersede any and all prior agreements and understandings relating to the subject matter hereof. Except as further amended hereby, all of the terms of the Agreement shall remain in full force and effect and are hereby confirmed in all respects.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Forward Seller, Forward Purchaser, the Agent, the Company and the Partnership in accordance with its terms.
| Very truly yours, | ||||
| REGENCY CENTERS CORPORATION | ||||
| By: | /s/ Lisa Palmer | |||
| Name: Lisa Palmer | ||||
| Title: President and Chief Executive Officer | ||||
| REGENCY CENTERS, L.P. | ||||
| By: | Regency Centers Corporation, | |||
| its general partner | ||||
| By: | /s/ Lisa Palmer | |||
| Name: Lisa Palmer | ||||
| Title: President and Chief Executive Officer | ||||
| CONFIRMED AND ACCEPTED, as of the date first above written: | ||||
| Mizuho Securities USA LLC, as Agent | ||||
| By: | /s/ John T. Deignan | |||
| Name: | John T. Deignan | |||
| Title: | Managing Director | |||
| Mizuho Securities USA LLC, as Forward Seller | ||||
| By: | /s/ John T. Deignan | |||
| Name: | John T. Deignan | |||
| Title: | Managing Director | |||
| Mizuho Markets Americas LLC, as Forward Purchaser | ||||
| By: | /s/ Adam Hopkins | |||
| Name: | Adam Hopkins | |||
| Title: | Attorney-in-Fact | |||
EXHIBIT A
FORM OF PLACEMENT NOTICE
, 20
[Bank Name]
[Address]
| Attention: | [•] |
(facsimile number: [•])
| Email: | [•] |
Reference is made to the Equity Distribution Agreement among Regency Centers Corporation (the “Company”), Regency Centers, L.P., [•] (the “Forward Purchaser”) and [•] (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares thereunder, “Agent,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares thereunder, the “Forward Seller”), dated as of May [•], 2017 (the “Equity Distribution Agreement”). Capitalized terms used in this Placement Notice without definition shall have the respective definitions ascribed to them in the Equity Distribution Agreement. This Placement Notice relates to [an “Issuance”]1 [a “Forward”]2. The Company confirms that all conditions to the delivery of this Placement Notice are satisfied as of the date hereof.
[The Company confirms that it has not declared and will not declare any dividend, or caused or cause there to be any distribution, on the Common Stock if the ex-dividend date or ex-date, as applicable, for such dividend or distribution will occur during the period from, and including, the first Trading Day of the Forward Hedge Selling Period to, and including, the last Trading Day of the Forward Hedge Selling Period.]3
The Company represents and warrants that each representation, warranty, covenant and other agreement of the Company contained in the Equity Distribution Agreement [and the Master Forward Confirmation]4 is true and correct on the date hereof, and that the Prospectus, including the documents incorporated by reference therein, and any applicable Issuer Free Writing Prospectus, as of the date hereof, do not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
| 1 | Insert for a Placement Notice that relates to an “Issuance.” |
| 2 | Insert for a Placement Notice that relates to a “Forward.” |
| 3 | Insert for a Placement Notice that relates to a “Forward.” |
| 4 | Insert for Placement Notice that relates to a “Forward.” |
Number of Days in [Issuance]5 [Forward Hedge]6 Selling Period:
First Date of [Issuance]7 [Forward Hedge]8 Selling Period:
Maximum Number of Shares to be Sold:
[Issuance]9 [Forward Hedge]10 Amount: $
[Forward Hedge Selling Commission Rate: %
| Forward Price Reduction Dates |
Forward Price Reduction Amounts |
|||
| $ | ||||
| $ | ||||
| Spread: |
||||
| Initial Stock Loan Rate: basis points |
||||
| Maximum Stock Loan Rate: basis points |
||||
| Regular Dividend Amounts: |
||||
| For any calendar quarter ending on or prior to [December 31, 20[ ]]: |
$ | [ | ] | |
| For any calendar quarter ending after [December 31, 20[ ]]: |
$ | [ | ] ]11 | |
[Term: [Days][Months]]12:
Floor Price (Adjustable by Company during the [Issuance]13 [Forward Hedge]14 Selling Period, and in no event less than $1.00 per share): $ per share
| 5 | Insert for a Placement Notice that relates to an “Issuance.” |
| 6 | Insert for a Placement Notice that relates to a “Forward.” |
| 7 | Insert for a Placement Notice that relates to an “Issuance.” |
| 8 | Insert for a Placement Notice that relates to a “Forward.” |
| 9 | Insert for a Placement Notice that relates to an “Issuance.” |
| 10 | Insert for a Placement Notice that relates to a “Forward.” |
| 11 | Insert for a Placement Notice that relates to a “Forward.” Regular Dividend Amounts shall not exceed the Forward Price Reduction Amount for the Forward Price Reduction Date occurring in the relevant quarter (or, if none, shall not exceed zero). |
| 12 | Insert for a Placement Notice that relates to a “Forward.” |
| 13 | Insert for a Placement Notice that relates to an “Issuance.” |
| 14 | Insert for a Placement Notice that relates to a “Forward.” |
Exhibit B
EXHIBIT B
COMPANY AND AGENT REPRESENTATIVES FOR NOTICE
Company Representatives for Notice:
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
Agent Representatives for Notice:
JT Deignan
Managing Director
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Office: (212) 205-7776
jt.deignan@mizuhogroup.com
Stephen Roney
Managing Director
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Office: (212) 205-7527
stephen.roney@mizuhogroup.com
Forward Seller Representatives for Notice:
JT Deignan
Managing Director
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Office: (212) 205-7776
jt.deignan@mizuhogroup.com
Stephen Roney
Managing Director
Mizuho Securities USA LLC
1271 Avenue of the Americas, 3rd Floor
New York, New York 10020
Office: (212) 205-7527
stephen.roney@mizuhogroup.com
Forward Purchaser Representative for Notice:
Adam Hopkins
Managing Director
Mizuho Securities USA LLC
1271 Avenue of the Americas, 19th Floor
New York, New York 10020
Office: (212) 547-1532
adam.hopkins@mizuhogroup.com
Exhibit C
EXHIBIT C
COMPANY REPRESENTATIVES FOR TRADE CONFIRMATIONS
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
Exhibit D
EXHIBIT D
COMPENSATION
Agent shall be paid compensation at a mutually agreed rate, not to exceed 2.0% of the gross sales price of Issuance Shares pursuant to the terms of this Agreement.
Forward Seller shall be paid compensation at a mutually agreed rate, not to exceed 2.0% of the gross sales price of Forward Hedge Shares pursuant to the terms of this Agreement.
Exhibit E
EXHIBIT E
SUBSIDIARIES OF THE COMPANY
As of May 1, 2020
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Regency Centers, L.P. |
Delaware | Regency Centers Corporation Outside Investors |
General Partner Limited Partners |
|
~99.6 ~0.4metuc |
% % | ||||
| Columbia Cameron Village SPE, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
30 70 |
% % | ||||
| Columbia Cameron Village, LLC |
Delaware | Columbia Cameron Village SPE, LLC | Member | 100 | % | |||||
| Columbia Regency Retail Partners, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia Crossroads Commons, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Dulles, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Texas 3, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Sweetwater Plaza, LP |
Delaware | Columbia Retail Texas 3, LLC Columbia Regency Retail Partners, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Columbia Retail Washington 1, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Cascade Plaza, LLC |
Delaware | Columbia Retail Washington 1, LLC Columbia Regency Retail Partners, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| Columbia Julington Village, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Palm Valley Marketplace, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Regency Partners II, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia II Broadway Market, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Burnt Mills Shopping Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Cochran Commons, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Hollymead Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Hollymead, LLC |
Delaware | Hollymead Town Center, LLC | Member | 100 | % | |||||
| Columbia II Johns Creek, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Ridgewood, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Lorton Station Marketplace Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| 15 | Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company. |
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Columbia Lorton Station Marketplace, LLC |
Delaware | Columbia Lorton Station Marketplace Member, LLC |
Member |
100 | % | |||||
| Columbia Lorton Station Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia II Marina Shores, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia Plantation Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia Plantation Plaza, LLC |
Delaware | Columbia Plantation Plaza Member, LLC |
Member |
100 | % | |||||
| Columbia II Rockridge Center, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia Retail Shorewood Crossing, LLC |
Delaware | Columbia Regency Retail Partners, LLC |
Member |
100 | % | |||||
| Columbia Shorewood Crossing Phase 2 Member, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia Shorewood Crossing Phase 2, LLC |
Delaware | Columbia Shorewood Crossing Phase 2 Member, LLC |
Member |
100 | % | |||||
| Columbia Shorewood Crossing Phase 3, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Signal Hill Two, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia II Signal Hill, LLC |
Delaware | Signal Hill Two, LLC |
Member |
100 | % | |||||
| Columbia Speedway Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia Speedway Plaza, LLC |
Delaware | Columbia Speedway Plaza Member, LLC |
Member |
100 | % | |||||
| Columbia Sutton Square, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia II Holding, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Columbia II Raley’s Center, LLC |
Delaware | Columbia II Holding, LLC |
Member |
100 | % | |||||
| Columbia II Village Plaza, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| GRI-Regency, LLC |
Delaware | Global Retail Investors, LLC Regency Centers, L.P. |
Member Managing Member |
|
60 40 |
% % | ||||
| GRI-Lake Grove, LLC |
Delaware | GRI-Regency Lake Grove Member, LLC |
Member |
100 | % | |||||
| GRI-Regency Lake Grove Member, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW PA-Mercer Square, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW PA-Newtown Square, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW PA-Warwick Plaza, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| MCW-RC SC-Merchant’s, LLC (fka MCW-RC South Carolina, LLC) |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| MCW-RC SC-Merchant’s Village Member, LLC |
Delaware | MCW-RC SC-Merchant’s, LLC |
Member |
100 | % | |||||
| MCW-RC SC-Merchant’s Village, LLC |
Delaware | MCW-RC SC-Merchant’s Village Member, LLC |
Member |
100 | % | |||||
| FW-CA Brea Marketplace Member, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW CA-Brea Marketplace, LLC |
Delaware | FW-CA Brea Marketplace Member, LLC |
Member |
100 | % | |||||
| FW CA-Brea Marketplace II, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| U.S. Retail Partners Holding, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| U.S. Retail Partners Member, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| U.S. Retail Partners, LLC |
Delaware | U.S. Retail Partners Holding, LLC U.S. Retail Partners Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW CO-Arapahoe Village, LLC |
Delaware | U.S. Retail Partners, LLC |
Member |
100 | % | |||||
| FW CO-Cherrywood Square, LLC |
Delaware | U.S. Retail Partners, LLC |
Member |
100 | % | |||||
| FW MN-Rockford Road, LLC |
Delaware | U.S. Retail Partners, LLC |
Member |
100 | % | |||||
| FW CO-Ralston Square, LLC |
Delaware | U.S. Retail Partners, LLC |
Member |
100 | % | |||||
| FW MN-Colonial Square, LLC |
Delaware | U.S. Retail Partners, LLC |
Member |
100 | % | |||||
| USRP I Holding, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| USRP I Member, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| USRP I, LLC |
Delaware | USRP I Holding, LLC USRP I Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW NJ-Plaza Square, LLC |
Delaware | USRP I, LLC |
Member |
100 | % | |||||
| FW VA-Greenbriar Town Center, LLC |
Delaware | USRP I, LLC |
Member |
100 | % | |||||
| FW VA-Festival at Manchester, LLC |
Delaware | USRP I, LLC |
Member |
100 | % | |||||
| FW-Reg II Holdings, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW CA-Bay Hill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Five Points Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Mariposa Gardens Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Navajo Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Point Loma Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Rancho San Diego Village, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Silverado Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Snell & Branham Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Twin Oaks Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CA-Ygnacio Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW CT-Corbins Corner Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW DC-Spring Valley Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW IL-Riverside/Rivers Edge, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW IL-Riverview Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW IL-Stonebrook Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| USRP Willow East, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW VA-Ashburn Farm Village Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW VA-Centre Ridge Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW VA-Fox Mill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW VA-Kings Park Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| FW VA-Saratoga Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW VA-The Village Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW WA-Aurora Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW WA-Eastgate Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW WA-Eastgate Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW WA-Overlake Fashion Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW WA-Overlake Fashion Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| Parkville Shopping Center, LLC |
Maryland | FW-Reg II Holdings, LLC |
Member |
100 | % | |||||
| FW-Reg II Holding Company Two, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW IL-McHenry Commons Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW CA-Granada Village, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW CA-Laguna Niguel Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW CA-Pleasant Hill Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW IL-Civic Center Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW IN-Willow Lake West, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW NJ-Westmont Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW NC-Shoppes of Kildaire, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| FW OR-Greenway Town Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC |
Member |
100 | % | |||||
| USRP LP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| USRP GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| US Retail Partners Limited Partnership |
Delaware | USRP GP, LLC USRP LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD Woodmoor Borrower, LLC |
Delaware | US Retail Partners Limited Partnership |
Member |
100 | % | |||||
| FW VA-Willston Centre II, LLC |
Delaware | US Retail Partners Limited Partnership |
Member |
100 | % | |||||
| FW Woodholme GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Woodholme Properties Limited Partnership |
Maryland | FW Woodholme GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodholme Borrower, LLC |
Delaware | Woodholme Properties Limited Partnership |
Member |
100 | % | |||||
| FW Southside Marketplace GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Southside Marketplace Limited Partnership |
Maryland | FW Southside Marketplace GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Southside Marketplace Borrower, LLC |
Delaware | Southside Marketplace Limited Partnership |
Member |
100 | % | |||||
| FW Valley Centre GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Greenspring Associates Limited Partnership |
Maryland | FW Valley Centre GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD-Greenspring Borrower, LLC |
Delaware | Greenspring Associates Limited Partnership |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Eastern Shopping Centers I, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Cloppers Mill Village Center, LLC |
Maryland | Eastern Shopping Centers I, LLC FW-Reg II Holdings, LLC |
Member Member |
|
1 99 |
% % | ||||
| City Line Shopping Center Associates |
Pennsylvania | US Retail Partners Limited Partnership City Line LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| City Line LP, LLC |
Delaware | USRP LP, LLC |
Member |
100 | % | |||||
| FW Allenbeth GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| Allenbeth Associates Limited Partnership |
Maryland | FW Allenbeth GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Weslyan GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW TX-Weslyan Plaza, L.P. |
Delaware | FW Weslyan GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodway GP, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW TX-Woodway Collection, L.P. |
Delaware | FW Woodway GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Gayton Crossing Holding, LLC |
Delaware | GRI-Regency, LLC |
Member |
100 | % | |||||
| FW VA-Gayton Crossing Shopping Center, LLC |
Delaware | FW Gayton Crossing Holding, LLC |
Member |
100 | % | |||||
| MCW RC III Hilltop Village Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCW RC III Hilltop Village, LLC |
Delaware | MCW RC III Hilltop Village Member, LLC |
Member |
100 | % | |||||
| MCW-RD Brentwood Plaza, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCW-RD Bridgeton, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCW-RD Dardenne Crossing, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCW-RD Kirkwood Commons Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCW-RD Kirkwood Commons, LLC |
Delaware | MCW-RD Kirkwood Commons Member, LLC |
Member |
100 | % | |||||
| RegCal, LLC |
Delaware | California State Teachers Retirement System Regency Centers, L.P. |
Member Managing Member |
|
75 25 |
% % | ||||
| RegCal Holding, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Apple Valley Square Member, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Apple Valley Square, LLC |
Delaware | CAR Apple Valley Square Member, LLC |
Member |
100 | % | |||||
| CAR Apple Valley Land, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Braemar Village, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Calhoun Commons, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Corral Hollow, LLC |
Delaware | RegCal Holding, LLC |
Member |
100 | % | |||||
| CAR Providence Commons, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| CAR Shops at the Columbia, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| KF-REG Holding, LLC |
Delaware | RegCal, LLC |
Member |
100 | % | |||||
| KF-REG Associates, LLC |
Delaware | KF-REG Holding, LLC |
Member |
100 | % | |||||
| King Farm Center, LLC |
Delaware | KF-REG Associates, LLC |
Member |
100 | % | |||||
| US Regency Retail REIT I |
Texas | US Southern Retail, LLC US Republic Core Fund, L.P. Regency Centers, L.P. |
Common Stock Common Stock Common Stock |
|
57.27 23.53 19.20 |
% % % | ||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| US Regency Retail I, LLC |
Delaware | US Regency Retail REIT I Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| RC FL-Anastasia, LLC (fka MCW-RC FL-Anastasia, LLC) |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| RC FL-Shoppes at 104, LLC (fka MCW-RC FL-Shoppes at 104, LLC) |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| RC GA-Howell Mill, LLC (fka MCW-RC GA-Howell Mill Village, LLC) |
Delaware | Regency Centers, LLC |
Member |
100 | % | |||||
| MCD-RC CA-Amerige, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCD-RC El Cerrito Holdings, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| MCD-RC CA-El Cerrito, LLC |
Delaware | MCD-RC El Cerrito Holdings, LLC |
Member |
100 | % | |||||
| REG8 Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| REG8 Tassajara Crossing, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Plaza Hermosa, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Sequoia Station, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Mockingbird Commons, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Sterling Ridge, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Prestonbrook Crossing, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Wellington, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| REG8 Berkshire Commons, LLC |
Delaware | REG8 Member, LLC |
Member |
100 | % | |||||
| FL-Corkscrew Village Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| FL-Corkscrew Village, LLC |
Delaware | FL-Corkscrew Village Member, LLC |
Member |
100 | % | |||||
| FL-Naples Walk Shopping Center Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| FL-Naples Walk Shopping Center, LLC |
Delaware | FL-Naples Walk Shopping Center Member, LLC |
Member |
100 | % | |||||
| FL-Northgate Square Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| FL-Northgate Square, LLC |
Delaware | FL-Northgate Square Member, LLC |
Member |
100 | % | |||||
| FL-Westchase Center Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| FL-Westchase Center, LLC |
Delaware | FL-Westchase Center Member, LLC |
Member |
100 | % | |||||
| 19330 Hawthorne, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 1C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 60617 Balboa Mesa, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 4S Regency Partners, LLC |
Delaware | Regency Centers, L.P. 4S Ranch Company 1700, L.P. |
Member Member |
|
85 15 |
% % | ||||
| Alba Village Phase II, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Alba Village Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Bartram Park Center, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Belleview Square, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Belmont Chase, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Bridges Insurance Company |
South Carolina | Regency Centers, L.P. |
Shareholder |
100 | % | |||||
| Buckwalter Bluffton, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Caligo Crossing, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| CityLine-REG, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clayton Valley Shopping Center, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clybourn Commons-REG, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Colonnade Regency, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Corvallis Market Center, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| CPGPI Regency Erwin, LLC |
Delaware | Regency Centers, L.P. CPGPI Erwin Retail, LLC |
Managing Member Member |
|
55 45 |
% % | ||||
| Fairfax Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Fellsway Associates Holdings Company, LLC |
Delaware | Regency Centers, L.P. Charter Fellsway, LLC Charter Fellsway Group, LLC |
Member Member Member |
|
75 24 1 |
% % % | ||||
| Fellsway Associates, LLC |
Delaware | Fellsway Associates Holdings Company, LLC |
Member |
100 | % | |||||
| Fellsway Property, LLC |
Delaware | Fellsway Associates Holdings Company, LLC |
Member |
100 | % | |||||
| Fontainebleau Square, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Gateway 101, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Gateway Azco GP, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Gateway Azco LP, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| AZCO Partners |
Pennsylvania | Gateway Azco Partners GP, LLC Gateway Azco LP, LLC Regency Centers, L.P. |
General Partner Limited Partner Limited Partner |
|
1 89 10 |
% % % | ||||
| Glen Oak Glenview, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Grand Ridge Plaza I, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Grand Ridge Plaza II, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Hibernia North, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Hickory Creek Plaza, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Hoadly Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Holly Park Property, LLC |
Delaware | Regency Centers, L.P. Purser HP, LLC |
Managing Member Member |
|
99.273 .0727 |
% % | ||||
| Hunters Lake Tampa, LLC |
Delaware | Regency Centers, L.P. Harrison Bennett Properties, LLC |
Managing Member Member |
Varies | ||||||
| Indian Springs at Woodlands, Ltd. |
Texas | Indian Springs GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
0.1 99.9 |
% % | ||||
| Indian Springs GP, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Indio Jackson, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Kent Place Regency, LLC |
Delaware | Regency Centers, L.P. Kent Place Investors, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| La Floresta Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Lee Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| The Marketplace at Briargate, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Murfreesboro North, LLC |
Delaware | Regency Centers, L.P. BSM County Farm Road, LLC |
Managing Member Member |
varies | ||||||
| NSHE Winnebago, LLC |
Arizona | Regency Centers, L.P. |
Member |
100 | % | |||||
| NTC-REG, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| New Smyrna Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Northlake Village Shopping Center, LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Oakshade Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Ocala Corners, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Otay Mesa Crossing, LLC |
Delaware | Regency Centers, L.P. Transcan Otay Mesa, LLC |
Managing Member Member |
Varies | ||||||
| Parmer Tech Ridge, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Centers Acquisitions, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Centers Advisors, LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Red Bank Village, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Blue Ash, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Marinita-LaQuinta, LLC |
Delaware | Regency Centers, L.P. Marinita Development Co. |
Managing Member Member |
Varies | ||||||
| Regency NC GP, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency-Kleban Properties, LLC |
Delaware | Regency Centers, L.P. Brick Walk Associates, LLC Pine Tree Ventures, LLC Bright Star, LLC 1261 Post Road Associates, LLC Kleban Holding Company, LLC Kleban Holding Company II, LLC Kleban Fairfield, LLC Alida Kleban Holding Company, LLC Sun Realty Associates, LLC Kleban Development Company FBW, LLC |
Member Member Member Member Member Member Member Member Member Member Member Member |
|
80.0000 5.1676 1.1789 0.9871 1.3768 2.6451 0.7769 1.1790 0.8306 3.9009 0.4598 1.4973 |
% % % % % % % % % % % % | ||||
| R-K Brick Walk I, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Brick Walk II, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Brick Walk III, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Brick Walk IV, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Brick Walk V, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Fairfield I, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Fairfield IV, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Fairfield V, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Black Rock I, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Black Rock II, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| R-K Black Rock III, LLC |
Delaware | Regency-Kleban Properties, LLC |
Member |
100 | % | |||||
| Regency Petaluma, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Remediation, LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Village at Dublin, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Sandy Springs Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| SEPR Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Shops at Saugus, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Shops at Mira Vista Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Shoppes on Riverside Jax, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Southpark Cinco Ranch, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Spring Hill Town Center, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| T&R New Albany Development Company, LLC |
Ohio | Regency Centers, L.P. Topvalco |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood-Pebblebrooke, LLC |
Delaware | Tinwood, LLC |
Member |
100 | % | |||||
| Twin City Plaza Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Twin City Plaza, LLC |
Delaware | Twin City Plaza Member, LLC |
Member |
100 | % | |||||
| UC Shopping Center, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Uncommon, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Uptown Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Uptown District Regency, LLC |
Delaware | Uptown Member, LLC |
Member |
100 | % | |||||
| WFC-Purnell, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Willow Festival Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Willow Oaks Crossing, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. |
Common Stock |
100 | % | |||||
| 1488-2978 SC GP, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 1488-2978 SC, L.P. |
Texas | 1488-2978 SC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Centerplace of Greeley III, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Culpeper Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| East San Marco, LLC |
Florida | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Kulpsville Village Center LP, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Kulpsville Village Center, L.P. |
Delaware | RRG Pennsylvania GP, Inc. Kulpsville Village Center LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Lower Nazareth LP Holding, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Lower Nazareth Partner, LP |
Delaware | Regency Realty Group, Inc. Lower Nazareth LP Holding, LLC |
Limited Partner General Partner |
|
100 0 |
% % | ||||
| Lower Nazareth GP, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Lower Nazareth Commons, LP |
Delaware | Lower Nazareth GP, LLC Lower Nazareth Partner, LP |
General Partner Limited Partner |
|
.5 99.5 |
% % | ||||
| NorthGate Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Paso Golden Hill, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| RB Schererville Crossings, LLC |
Delaware | Regency Realty Group, Inc. WH41, LLC |
Managing Member Member |
Varies | ||||||
| Baronhawks, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| RRG Net, LLC |
Florida | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Regency Solar, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Regency Solar II, LLC |
Delaware | New Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Seminole Shoppes, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Shops at Highland Village GP, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Shops at Highland Village Development, Ltd. |
Delaware | Shops at Highland Village GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Shops at Quail Creek, LLC |
Delaware | Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Stonewall Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| RRG Pennsylvania GP, Inc. |
Florida | Regency Realty Group, Inc. |
Common Stock |
100 | % | |||||
| US Regency Hasley Canyon Village, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Blossom Valley, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Alden Bridge, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Bethany Park Place, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Shiloh Springs, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Willa Springs, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Dunwoody Hall, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| US Regency Maynard Crossing, LLC |
Delaware | US Regency Retail I, LLC |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Clarendon Regency I, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Mellody Farm, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Springwoods Village Stuebner/Regency, LLC |
Delaware | Regency Centers, L.P. Spring RRC I, LLC |
Managing Member Member |
|
53 47 |
% % | ||||
| Spring Stuebner RRC I Inc. |
Delaware | Springwoods Village Stuebner/Regency, LLC |
Member |
100 | % | |||||
| Culver Public Market, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clarendon Regency II, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clarendon Regency III, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clarendon Regency IV, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Clarendon Regency V, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 2C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Klahanie Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Commonwealth Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Commonwealth Regency II, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Bridgewater Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Midtown East Regency-ITB, LLC |
Delaware | Regency Centers, L.P. I.T.B. Holdings, L.L.C. |
Member Member |
|
50 50 |
% % | ||||
| The Village at Riverstone, LLC |
Delaware | Regency Centers, L.P. RIVJV, LLC |
Managing Member Member |
varies | ||||||
| Columbia II Plaza Venezia, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Chimney Rock LQR, LLC |
Delaware | New Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Garden City Park, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Pinecrest Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Springing Member, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Goodwyn, LLC |
Delaware | Regency Centers, L.P. Richmond Shopping Center, Inc. and Goodwyn Bros. General Partnership |
Managing Member Member |
Varies | ||||||
| Indigo Square Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| 5510-5520 Broadway, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity Asset Investor (Talega) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Bridgemill) LLC |
Georgia | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Copps Hill) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Florida Portfolio) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Louisiana Portfolio) LLC |
Florida | Louisiana Holding LLC |
Member |
100 | % | |||||
| Equity One (Northeast Portfolio) LLC |
Massachusetts | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (San Carlos) LLC |
Delaware | Equity One (West Coast Portfolio) LLC |
Member |
100 | % | |||||
| Equity One (Sheridan Plaza) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Southeast Portfolio) LLC |
Georgia | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Summerlin) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Westbury Plaza) LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (West Coast Portfolio) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One (Westport) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| Equity One (Westport Village Center) LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Equity One Realty & Management NE, LLC |
Massachusetts | Regency Centers, L.P. |
Member |
100 | % | |||||
| Regency Centers Management, LLC f/k/a Equity One Realty & Management SE, LLC |
Georgia | Regency Centers, L.P. |
Member |
100 | % | |||||
| EQY Portfolio Investor (Empire) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| EQY Portfolio Investor (GRI) LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| GRI-EQY (Concord) LLC |
Delaware | EQY Portfolio Investor (GRI) LLC |
Member |
100 | % | |||||
| Harvard Collection LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| IRT Management LLC |
Georgia | Regency Centers, L.P. |
Member |
100 | % | |||||
| IRT Partners, L.P. |
Georgia | Regency Centers, L.P. IRT Management LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Louisiana Holding LLC |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Southbury Spirits Member, LLC |
Connecticut | Regency Centers, L.P. |
Member |
100 | % | |||||
| Southbury Spirits, LLC |
Connecticut | Southbury Spirits Member, LLC |
Member |
100 | % | |||||
| IRT Capital Corporation II |
Georgia | Regency Centers, L.P. |
Member |
100 | % | |||||
| DIM Vastgoed N.V. |
Netherlands | Regency Centers, L.P. |
Member |
100 | % | |||||
| EQY-CSC, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| C&C (US) No. 1, Inc. |
Delaware | Regency Centers. L.P. Outside Investors |
Common Stock Preferred Stock |
|
100 varies |
%
| ||||
| C&C Delaware, Inc. |
Delaware | C&C (US) No. 1, Inc. |
Common Stock |
100 | % | |||||
| 621 Colorado Associates, LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Culver) LLC |
Delaware | 621 Colorado Associates, LLC |
Member |
100 | % | |||||
| Equity One Realty & Management CA, Inc. |
Delaware | C&C (US) No. 1, Inc. |
Common Stock |
100 | % | |||||
| Equity One (Circle West) LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Compo Acres) LLC |
Connecticut | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Darinor) LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Metropolitan) LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Post Road) LLC |
Connecticut | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Ralphs Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Equity One (Vons Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Marketplace Center, Inc. |
California | Equity One Realty & Management CA, Inc. |
Common Stock |
100 | % | |||||
| Daly City Serramonte Center, LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Serramonte Center Holding Co. LLC |
Delaware | Daly City Serramonte Center, LLC |
Member |
100 | % | |||||
| Willows Center Concord, Inc. |
California | Equity One Realty & Management CA, Inc. |
Common Stock |
100 | % | |||||
| Willows Center Concord, LLC |
California | Willows Center Concord, Inc. |
Member |
100 | % | |||||
| G.S. Associates Holding Corp. |
Delaware | Equity One Realty & Management CA, Inc. |
Common Stock |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| G.S. Associates Joint Venture 326118 |
California | Equity One Realty & Management CA, Inc. G.S. Associates Holding Corp. |
Partner Partner |
|
99.9 0.1 |
% % | ||||
| Escuela Shopping Center, LLC |
Delaware | G.S. Associates Joint Venture 326118 |
Member |
100 | % | |||||
| Equity One JV Portfolio LLC |
Delaware | EQY Portfolio Investor (Empire) LLC New York Common Fund |
Managing Member Member |
|
30 70 |
% % | ||||
| Equity One JV Sub Riverfront Plaza LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Equity One (Country Walk) LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Equity One JV Sub CT Path LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Equity One JV Sub Veranda LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Equity One JV Sub Northborough LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Equity One JV Sub Grove LLC |
Delaware | Equity One JV Portfolio LLC |
Member |
100 | % | |||||
| Sunlake-Equity One LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| EQY Talega LLC |
Delaware | Equity Asset Investor (Talega) LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center JV, LLC |
Delaware | EQY Talega LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center, LLC |
Delaware | Talega Village Center JV, LLC |
Member |
100 | % | |||||
| Riverstone Market SWC, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Columbia II Metuchen, LLC |
Delaware | Columbia Regency Partners II, LLC |
Member |
100 | % | |||||
| Glengary Shoppes LLC |
Delaware | DIM Vastgoed, N.V. |
Member |
100 | % | |||||
| Hammocks Town Center LLC |
Delaware | DIM Vastgoed, N.V. |
Member |
100 | % | |||||
| Magnolia Shoppes LLC |
Delaware | DIM Vastgoed, N.V. |
Member |
100 | % | |||||
| Scripps REG, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Hewlett I Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Hewlett II Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Roosevelt Square Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Rivertowns Square Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Shops on Main LQR, LLC |
Indiana | RB Schererville Crossings, LLC |
Member |
100 | % | |||||
| Block in Ballard II, LLC |
Delaware | Block in Ballard II JV, LLC |
Member |
100 | % | |||||
| Block in Ballard II JV, LLC |
Delaware | Regency Centers, L.P. 1290 Broadway Lane REIT, LLC |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard I JV, LLC |
Delaware | Regency Centers, L.P. Principal Enhanced Property Fund, L.P. |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard, LLC |
Delaware | Reflections at the Lake REIT, LLC |
Member |
100 | % | |||||
| Reflections at the Lake REIT, LLC |
Delaware | Block in Ballard I JV, LLC |
Member |
100 | % | |||||
| Melrose Market Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| TF REG, LLC |
Delaware | Regency Centers, L.P. Outside Investors |
Managing Member Members |
|
18.375 varies |
%
| ||||
| New Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. |
Member |
100 | % | |||||
| Falls Church Regency, LLC |
Delaware | New Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Entity |
Jurisdiction |
Owner(s) |
Nature of Interest15 |
% of Ownership |
||||||
| FCC Member 1 LLC |
Delaware | Falls Church Regency, LLC EYA FCC Investments LLC |
Member Managing Member |
|
75 25 |
% % | ||||
| Falls Church Commons JV, LLC |
Delaware | FCC Member 1 LLC PNH WFC LLC |
Member Member |
|
50 50 |
% % | ||||
| 6401 Roosevelt Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Pruneyard Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Old Bridge Regency, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| Old Bridge Regency-Village, LLC |
Delaware | Old Bridge Regency, LLC Village Old Bridge LLC |
Member Member |
|
80 20 |
% % | ||||
| Restaurant Ventures, LLC |
Delaware | RB Schererville Crossings, LLC |
Member |
100 | % | |||||
| NRRG Net, LLC |
Delaware | New Regency Realty Group, Inc. |
Member |
100 | % | |||||
| Stonewall Regency Lending, LLC |
Delaware | Equity One Realty & Management CA, Inc. |
Member |
100 | % | |||||
| Regency Protective Trust II |
Florida | New Regency Realty Group, Inc. |
Beneficiary |
100 | % | |||||
| Midtown Junction, LLC |
Delaware | Regency Centers, L.P. |
Member |
100 | % | |||||
| NRRG Investments I, Inc. |
Florida | New Regency Realty Group, Inc. |
Common Stock |
100 | % | |||||
| Regency Kensington Bethesda Member, LLC |
Maryland | NRRG Investments I, Inc. |
Member |
100 | % | |||||
| Regency Kensington Bethesda Owner, LLC |
Maryland | Regency Centers, L.P. |
Member |
100 | % | |||||
Exhibit 1.3
Regency Centers Corporation
Common Stock
(Par Value $0.01 Per Share)
EQUITY DISTRIBUTION AGREEMENT
May 8, 2020
Jefferies LLC
520 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
Regency Centers Corporation, a Florida corporation (the “Company”), which is the general partner of Regency Centers, L.P., a Delaware limited partnership (the “Partnership”), confirms its agreement (this “Agreement”) with Jefferies LLC (or its affiliates) (in its capacity as purchaser under any Forward Contract (as defined below), the “Forward Purchaser”) and (in its capacity as agent for the Company and/or principal in connection with the offering and sale of any Issuance Shares (as defined below) hereunder, “Agent,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares (as defined below) hereunder, the “Forward Seller”), as follows:
SECTION 1. Description of Shares. The Company has authorized and proposes to issue and sell, in the manner contemplated by this Agreement, shares of the Company’s common stock, par value $0.01 per share (“Common Stock”) upon the terms and subject to the conditions contained herein. The issuance and sale of the Shares (as defined below) will be effected pursuant to the Registration Statement (as defined below) filed by the Company under the Securities Act of 1933, as amended (collectively with the rules and regulations thereunder, the “Securities Act”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Shares.
The Company has filed, in accordance with the provisions of the Securities Act, with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-217081) (the “Original Registration Statement”), including a base prospectus, relating to certain securities, including the Shares to be issued from time to time by the Company, which shelf registration statement became effective upon filing under Rule 462(e) of the Securities Act and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement to the base prospectus included as part of the Original Registration Statement specifically relating to the Shares (the “Original Prospectus Supplement”). Except where the context otherwise requires, the “Registration
Statement” refers to (i) initially, the Original Registration Statement and (ii) on and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, the registration statement, if any, filed by the Company for the purpose of continuing the offering of the Shares following any such date (the “Replacement Registration Statement”), in each case, as amended when it became or becomes effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B under the Securities Act (the “Rule 430B Information”). The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, supplemented by the most recent prospectus supplement prepared by the Company specifically relating to the Shares, which shall initially be the Original Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act is herein called the “Prospectus.” The Shares having an aggregate sales price of up to the amount provided in the Prospectus shall be referred to as the Maximum Amount (the “Maximum Amount”). Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
All references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433 under the Securities Act, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Shares by Agent outside of the United States.
Agent has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein. The Forward Seller has been appointed by the Company and the Forward Purchaser as agent to sell the Forward Hedge Shares and agrees with the Company and the Forward Purchaser to use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Forward Hedge Shares to be borrowed by the Forward Purchaser
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or its affiliate and offered on behalf of the Company upon the terms and subject to the conditions contained herein. Notwithstanding any other provision of this Agreement, if a Forward Seller and Forward Purchaser have not been identified in the introductory paragraph of this Agreement and have not executed this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller, the Forward Purchaser and Forwards are not applicable hereunder and no sales of Forward Hedge Shares shall take place pursuant to this Agreement.
The Company and the Partnership have previously entered into other separate equity distribution agreements (collectively, the “Separate Distribution Agreements”) with other parties (and, as applicable, their respective affiliates) (each, in its capacity as agent and/or principal, forward seller and forward purchaser thereunder, a “Separate Agent”), for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time through the applicable Separate Agents on the terms set forth in the applicable Separate Distribution Agreements. The Company and the Partnership may also in the future enter into additional equity distribution agreements (together with the Separate Distribution Agreements, the “Alternative Distribution Agreements”) with one or more additional agents and/or principals, forward sellers and forward purchasers (together with the Separate Agents, the “Alternative Agents”).
The aggregate offering price of the Shares that may be sold pursuant to this Agreement and the Alternative Distribution Agreements shall not exceed the Maximum Amount.
As used in this Agreement, the following terms have the respective meanings set forth below:
“Actual Sold Forward Amount” means, for any Forward Hedge Selling Period for any Forward, the number of Forward Hedge Shares that the Forward Seller has sold during such Forward Hedge Selling Period.
“Agent” has the meaning set forth in the introductory paragraph of this Agreement.
“Applicable Time” means the time of each sale of any Shares pursuant to this Agreement.
“Capped Number” with respect to any Forward Contract has the meaning set forth in such Forward Contract.
“Commitment Period” means the period commencing on the date of this Agreement and expiring on the date this Agreement is terminated pursuant to Section 13.
“Forward” means the transaction resulting from each Placement Notice (as amended by the corresponding Acceptance, if applicable) specifying that it relates to a “Forward” and requiring the Forward Seller to use commercially reasonable efforts consistent with its normal trading and sales practices to sell, as specified in such Placement Notice and subject to the terms and conditions of this Agreement and the applicable Forward Contract, the Forward Hedge Shares.
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“Forward Contract” means, for each Forward, the contract evidencing such Forward between the Company and the Forward Purchaser, which shall be comprised of the Master Forward Confirmation and the related “Supplemental Confirmation” (as defined in the Master Forward Confirmation) for such Forward.
“Forward Hedge Amount” means, for any Forward, the amount specified as such in the Placement Notice for such Forward, which amount shall be the target aggregate sales price of the Forward Hedge Shares to be sold by the Forward Seller, subject to the terms and conditions of this Agreement.
“Forward Hedge Price” means, for any Forward Contract, the product of (x) an amount equal to one (1) minus the Forward Hedge Selling Commission Rate for such Forward Contract; and (y) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.
“Forward Hedge Selling Commission” means, for any Forward Contract, the product of (x) the Forward Hedge Selling Commission Rate for such Forward Contract and (y) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.
“Forward Hedge Selling Commission Rate” means, for any Forward Contract, the amount of any commission, discount or other compensation to be paid by the Company to the Forward Seller in connection with the sale of the Forward Hedge Shares, which shall be determined in accordance with the terms set forth in Exhibit D and recorded in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable).
“Forward Hedge Selling Period” means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Placement Notice specifying that it relates to a “Forward”) beginning on the date specified in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable) or, if such date is not a Trading Day, the next Trading Day following such date; provided that if, prior to the scheduled end of any Forward Hedge Selling Period (x) any event occurs that would permit the Forward Purchaser to designate a “Scheduled Trading Day” as an “Early Valuation Date” (as each such term is defined in the Master Forward Confirmation) under, and pursuant to the provisions opposite the caption “Early Valuation” in Section 2 of the Master Forward Confirmation or (y) a “Bankruptcy Termination Event” (as such term is defined in the Master Forward Confirmation) occurs, then the Forward Hedge Selling Period shall immediately terminate as of the first such occurrence.
“Forward Hedge Shares” means all Common Stock borrowed by the Forward Purchaser or its affiliate and offered and sold by the Forward Seller in connection with any Forward that has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Forward Hedge Shares” as used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Forward Purchaser” has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Purchaser has not been identified in the introductory paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Purchaser are not applicable hereunder. In such event, a Forward Purchaser shall mean a party who has entered into a separate Master Forward Confirmation with the Company.
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“Forward Seller” has the meaning set forth in the introductory paragraph of this Agreement. If a Forward Seller has not been identified in the introductory paragraph of this Agreement, the Company agrees that all provisions of this Agreement related to the Forward Seller are not applicable hereunder and in such event, a Forward Seller shall mean a party who is a sales agent for a Forward Purchaser.
“Issuance” means each occasion the Company elects to exercise its right to deliver a Placement Notice that does not involve a Forward and that specifies that it relates to an “Issuance” and requires Agent to use commercially reasonable efforts to sell the Issuance Shares as specified in such Placement Notice, subject to the terms and conditions of this Agreement.
“Issuance Amount” means, for any Issuance, the amount specified as such in the Placement Notice for such Issuance, which amount shall be the target aggregate sales price of the Issuance Shares to be sold by Agent, subject to the terms and conditions of this Agreement.
“Issuance Selling Period” means the period of Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Placement Notice specifying that it relates to an “Issuance”) beginning on the date specified in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable) or, if such date is not a Trading Day, the next Trading Day following such date.
“Issuance Shares” means all shares of Common Stock issued or issuable pursuant to an Issuance that has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Issuance Shares” as used herein, shall include the definition of the same under the Alternative Distribution Agreements.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, relating to the Shares that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed in Exhibit H hereto, in each case in the form furnished (electronically or otherwise) to Agent for use in connection with the offering of the Shares.
“Master Forward Confirmation” means the Master Confirmation for Issuer Share Forward Sale Transactions, dated as of the date hereof, by and between the Company and the Forward Purchaser, including all provisions incorporated by reference therein.
“NYSE” means the New York Stock Exchange.
“Sales Price” means, for each Forward or each Issuance hereunder, the actual sale execution price of each Forward Hedge Share or Issuance Share, as the case may be, sold by Agent or the Forward Seller on the Nasdaq Global Select Market hereunder in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale.
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Where the context requires, the term “Sales Price” as used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Selling Period” means any Forward Hedge Selling Period or any Issuance Selling Period.
“Settlement Date” means, unless the Company and Agent shall otherwise agree, any Forward Hedge Settlement Date or any Issuance Settlement Date, as applicable.
“Shares” means Issuance Shares and Forward Hedge Shares, as applicable. Where the context requires, the term “Shares” as used herein shall include the definition of the same under the Alternative Distribution Agreements.
“Trading Day” means any day which is a trading day on the Nasdaq Global Select Market.
“Unwind Date” shall have the meaning set forth in the Master Forward Confirmation.
SECTION 2. Placements. In reliance upon the representations, warranties and agreements herein contained, and subject to the terms and conditions set forth herein, the parties agree as follows:
(a) Upon the terms and subject to the conditions of this Agreement, on any Trading Day as provided in Section 2(c) hereof during the Commitment Period on which (i) the conditions set forth in Section 9 hereof have been satisfied and (ii) with respect to any Forward, no event described in clause (x) or clause (y) of the proviso contained in the definition of Forward Hedge Selling Period shall have occurred, the Company may issue (in the case of an Issuance) and sell or cause to be sold the Shares hereunder (each, a “Placement”), by the delivery of an email notice to Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) containing the parameters in accordance with which it desires the Shares to be sold, which shall specify whether it relates to an “Issuance” or a “Forward” and include the maximum number of Shares to be sold (the “Placement Shares”), the time period during which sales are requested to be made, any limitation on the number of Shares that may be sold in any one day, any minimum price below which sales may not be made or a formula pursuant to which such minimum price shall be determined and, as applicable, certain specified terms of the Forward (a “Placement Notice”), a form of which containing such minimum sales parameters necessary with respect to Issuances and Forwards is attached hereto as Exhibit A. The Placement Notice shall originate from any of the individuals from the Company set forth on Exhibit B (with a copy to each of the other individuals from the Company listed on such schedule), and shall be addressed to each of the individuals from Agent or the Forward Seller and the Forward Purchaser, as applicable, set forth on Exhibit B, as such Exhibit B may be amended from time to time.
(b) If Agent or the Forward Seller and the Forward Purchaser, as applicable, wish to accept such proposed terms included in the Placement Notice (which they may decline to do for any reason in their sole discretion) or, following discussion with the Company, wish to accept amended terms, Agent or the Forward Seller and the Forward Purchaser, as applicable, will, prior to 4:30 p.m. (New York City Time) on the business day following the business day on
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which such Placement Notice is delivered to Agent or the Forward Seller and the Forward Purchaser, as applicable, issue to the Company a notice by email addressed to all of the individuals from the Company and Agent or the Forward Seller and the Forward Purchaser, as applicable, set forth on Exhibit B) setting forth the terms that Agent or the Forward Seller and the Forward Purchaser, as applicable, are willing to accept. Where the terms provided in the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on the Company or Agent or the Forward Seller and the Forward Purchaser, as applicable, until the Company delivers to Agent or the Forward Seller and the Forward Purchaser, as applicable, an acceptance by email of all of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be addressed to all of the individuals from the Company and Agent or the Forward Seller and the Forward Purchaser, as applicable, set forth on Exhibit B. The Placement Notice (as amended by the corresponding Acceptance, if applicable) shall be effective upon receipt by the Company or Agent’s or the Forward Seller’s and the Forward Purchaser’s, as applicable, acceptance of the terms of the Placement Notice or upon receipt by Agent or the Forward Seller and the Forward Purchaser, as applicable, of the Company’s Acceptance, as the case may be, unless and until (i) the entire amount of the Placement Shares has been sold, (ii) in accordance with the notice requirements set forth in the second sentence of the prior paragraph, the Company terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated under the provisions of Section 13 or (v) any party shall have suspended the sale of the Placement Shares in accordance with Section 4 below. It is expressly acknowledged and agreed that neither the Company nor Agent will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to Agent and either (i) Agent accepts the terms of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts such amended terms by means of an Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable) and herein. It is expressly acknowledged and agreed that the Company, the Forward Seller and the Forward Purchaser will have no obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to the Forward Seller and the Forward Purchaser and either (i) the Forward Seller and the Forward Purchaser accept the terms of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts such amended terms by means of an Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable), this Agreement and the Master Forward Confirmation. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice (as amended by the corresponding Acceptance, if applicable), the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable) will control.
(c) No Placement Notice may be delivered hereunder other than on a Trading Day during the Commitment Period, no Placement Notice may be delivered hereunder if the Selling Period specified therein may overlap in whole or in part with any Selling Period specified in a Placement Notice (as amended by the corresponding Acceptance, if applicable) delivered hereunder or under any Alternative Distribution Agreement unless the Shares to be sold under all such previously delivered Placement Notices have all been sold, no Placement Notice may be delivered hereunder or under any Alternative Distribution Agreement if any Selling Period
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specified therein may overlap in whole or in part with any Unwind Date under any Forward Contract entered into between the Company and the Forward Purchaser or any Alternative Agent and no Placement Notice specifying that it relates to a “Forward” may be delivered if either (x) an ex-dividend date or ex-date, as applicable, for any dividend or distribution payable by the Company on the Common Stock is scheduled to occur during the period from, and including, the first scheduled Trading Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period or (y) such Placement Notice, together with all prior Placement Notices (as amended by the corresponding Acceptance, if applicable) delivered by the Company relating to a “Forward” hereunder and under any Alternative Distribution Agreements, would result in the aggregate Capped Number under all Forward Contracts entered into or to be entered into between the Company and the Forward Purchaser and any Forward Contracts entered into between the Company and any Alternative Agent exceeding 19.99% of the number of shares of Common Stock outstanding as of the date of this Agreement.
(d) Notwithstanding any other provision of this Agreement, any notice required to be delivered by the Company or by an Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) pursuant to this Section 2 may be delivered by telephone (confirmed promptly by facsimile or email addressed to all of the individuals from the Company and Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) set forth on Exhibit B, which confirmation will be promptly acknowledged by the receiving party) or other method mutually agreed to in writing by the parties. For the avoidance of doubt, notices delivered by telephone shall originate from any of the individuals from the Company or Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) set forth on Exhibit B.
SECTION 3. Sale of Shares.
(a) Subject to the provisions of Section 6(a), upon the delivery of a Placement Notice (as amended by the corresponding Acceptance, if applicable) specifying that it relates to an “Issuance,” Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Issuance Shares at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). Agent will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit C (as such Exhibit C may be amended from time to time) no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Issuance Shares hereunder setting forth the number of Issuance Shares sold on such day, the corresponding Sales Price, the compensation payable by the Company to Agent pursuant to this Section 3(a) with respect to such sales, and the Net Proceeds (as defined in Section 6(b)) payable to the Company, with an itemization of the deductions made by Agent (as set forth in Section 6(b)) from the Gross Proceeds (as defined in Section 6(b)) (prior to deductions for transaction fees) that it receives from such sales. The amount of any commission, discount or other compensation to be paid by the Company to Agent, when Agent is acting as agent, in connection with the sale of the Issuance Shares shall be determined in accordance with the terms set forth in Exhibit D. The amount of any commission, discount or other compensation to be paid by the Company to Agent, when Agent is acting as principal, in connection with the sale of the Issuance Shares shall be as separately agreed among the parties hereto at the time of any such sales.
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(b) In addition, subject to the provisions of Section 6(d) and the Master Forward Confirmation, upon the delivery of a Placement Notice (as amended by the corresponding Acceptance, if applicable) specifying that it relates to a “Forward,” the Forward Purchaser will use commercially reasonable efforts to borrow or cause its affiliate to borrow, offer and sell Forward Hedge Shares through the Forward Seller to hedge the Forward, and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares at market prevailing prices up to the Forward Hedge Amount specified in such Placement Notice (as amended by the corresponding Acceptance, if applicable), and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Forward Seller will provide written confirmation by email to all of the individuals from the Company set forth on Exhibit C (as such Exhibit C may be amended from time to time) and to the Forward Purchaser no later than the opening of the Trading Day immediately following the Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the number of Forward Hedge Shares sold on such day, the corresponding Sales Price and the Forward Hedge Price payable to the Forward Purchaser in respect thereof.
(c) No later than the opening of the Trading Day immediately following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 4 or the Forward Contract), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial “Number of Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward, which number of days or months shall in no event be less than three months nor more than one year), the “Initial Forward Price” for such Forward, the “Spread” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Volume-Weighted Hedge Price” for such Forward, the “Threshold Price” for such Forward, the “Initial Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Maximum Stock Loan Rate” for such Forward (as set forth in the related Placement Notice (as amended by the corresponding Acceptance, if applicable)), the “Threshold Number of Shares” for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Forward Price Reduction
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Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward) and the “Regular Dividend Amounts” for such Forward (which shall be each of the amount(s) set forth below the caption “Regular Dividend Amounts” in the Placement Notice (as amended by the corresponding Acceptance, if applicable) for such Forward).
(d) Notwithstanding anything herein to the contrary, the Forward Purchaser’s obligation to use its commercially reasonable efforts to borrow or cause its affiliate to borrow all or any portion of the Forward Hedge Shares (and the Forward Seller’s obligation to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such portion of the Forward Hedge Shares) for any Forward hereunder shall be subject in all respects to the last paragraph of Section 3 of the Master Forward Confirmation.
(e) The Shares may be offered and sold by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on the Nasdaq Global Select Market, on any other existing trading market for the Common Stock or to or through a market maker, or subject to the terms of the Placement Notice (as amended by the corresponding Acceptance, if applicable), any other method permitted by law, including but not limited to, privately negotiated transactions.
SECTION 4. Suspension of Sales. The Company, Agent or the Forward Seller or the Forward Purchaser may, upon notice to the other parties in writing (including by email correspondence to each of the individuals of the other party set forth on Exhibit B) or by telephone (confirmed immediately by verifiable facsimile transmission or email correspondence to each of the individuals of the other party set forth on Exhibit B), suspend any sale of Shares, and the applicable Selling Period shall immediately terminate; provided, however, that such suspension and termination shall not affect or impair any party’s obligations with respect to any Shares sold hereunder prior to the receipt of such notice or any Shares sold under any Alternative Distribution Agreement (and, in the case of any Forward Hedge Shares, the resulting Forward Contract). The Company agrees that no such notice shall be effective against Agent, the Forward Seller or the Forward Purchaser unless it is made to one of the individuals named on Exhibit B hereto, as such Exhibit may be amended from time to time. Each of Agent, the Forward Seller and the Forward Purchaser agrees that no such notice shall be effective against the Company unless it is made to one of the individuals named on Exhibit B hereto, as such Exhibit may be amended from time to time; provided that the failure by Agent, the Forward Seller or the Forward Purchaser to deliver such notice shall in no way effect such party’s right to suspend the sale of Shares hereunder.
SECTION 5. Representations and Warranties.
(a) Representations and Warranties by the Company and the Partnership. The Company and the Partnership jointly and severally represent and warrant to Agent, the Forward Seller and the Forward Purchaser as of the date hereof, as of each Bring-Down Date (as defined below), as of each Applicable Time, as of the date each Placement Notice is effective and as of each Settlement Date, and agrees with Agent, the Forward Seller and the Forward Purchaser, as follows:
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(1) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the Original Registration Statement on March 31, 2017, (B) at the time of filing any Replacement Registration Statement that is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act (“Rule 405”), (C) at the time of the most recent amendment to the Original Registration Statement or any such Replacement Registration Statement for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (D) at the time the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 of the Securities Act, and (E) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being an “ineligible issuer,” as defined in Rule 405. The Original Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, and the Shares, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to the use of any Registration Statement that is an automatic shelf registration statement. The Company has paid, or if the Prospectus Supplement has not yet been filed with the Commission will pay, the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) Registration Statement and Prospectuses. The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on March 31, 2017, and any post-effective amendment thereto also became effective upon filing under Rule 462(e) under the Securities Act. On and after the date on which the Shares may no longer be offered and sold pursuant to the Original Registration Statement, each Replacement Registration Statement filed by the Company either (1) is an “automatic effective registration statement” as defined under Rule 405 that has been filed with the Commission or (2) has otherwise become effective under the Securities Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Securities Act, no order preventing or suspending the use of the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated.
Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and at each deemed effective date with respect to Agent and the Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act, complied in all material respects with the requirements of the Securities Act. The Prospectus delivered to Agent and the Forward Seller for use in connection with the transactions contemplated by this Agreement and the Master Forward Confirmation was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the Exchange Act.
(3) Accurate Disclosure. Neither the Registration Statement nor any amendment thereto, at the times they became effective and at each deemed effective date with respect to Agent and the Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus, as amended or supplemented, nor any one or more Issuer Free Writing Prospectuses when considered together with the Prospectus, as amended or supplemented, as of the date of the Original Prospectus Supplement, the date of the original prospectus supplement prepared with respect to the offering of the Shares under a Replacement Registration Statement, at each Applicable Time or at any Settlement Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto (including any prospectus wrapper)), made in reliance upon and in conformity with written information furnished to the Company by Agent, the Forward Seller or the Forward Purchaser expressly for use therein.
(4) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus including any document incorporated or deemed incorporated by reference therein.
(5) Company Not Ineligible Issuer. At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) of the Shares and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act, without taking into account any determination by the Commission pursuant to Rule 405 under the Securities Act that it is not necessary that the Company be considered an ineligible issuer.
(6) Prior Written Communications. Any offer that is a written communication relating to the Shares made prior to the filing of the Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the Securities Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 of the Securities Act and otherwise complied with the requirements of Rule 163 of the Securities Act, including without limitation the legending requirement.
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(7) Independent Accountants. KPMG LLP, who have certified certain financial statements of the Company and its subsidiaries and the Partnership and its subsidiaries, and have audited the Company’s internal control over financial reporting, are independent public accountants as required by the Securities Act and the Exchange Act.
(8) Financial Statements. The financial statements (including the related notes thereto) of each of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Prospectus and the Issuer Free Writing Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of each of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods covered thereby, and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries and presents fairly the information shown thereby; any pro forma financial information and the related notes thereto included or incorporated by reference in the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus have been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus; and the interactive data in eXtensible Business Reporting Language furnished by the Company to the Commission has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(9) No Material Adverse Change in Business. Neither the Company nor any of its subsidiaries (including the Partnership) has sustained since the date of the latest financial statements included or incorporated by reference in the Registration Statement and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the capital stock of the Company or any of its subsidiaries (including the Partnership) (other than issuances of capital stock in connection with employee benefit plans, the exercise of options, the exchange of Partnership units and the payment of earn-outs pursuant to contractual commitments) or in the partners’ capital of the Partnership or any of its subsidiaries, any change in mortgage loans payable or long-term debt of the Company or any of its subsidiaries (including the Partnership) in excess of $40,000,000 or in the mortgage loans payable or long-term debt of
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the Partnership or any of its subsidiaries or any material adverse change in excess of $40,000,000 (in any case, other than transactions that have occurred and have been reported in the Company’s Current Reports on Form 8-K or the repayment of maturing indebtedness or other obligations), or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company or the Partnership on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity, partners’ capital or results of operations of the Company and its subsidiaries (including the Partnership), otherwise than as set forth or contemplated in the Registration Statement and the Prospectus (other than ordinary course dividends to be paid on the Company’s Common Stock and preferred stock); and neither the Company nor any of its subsidiaries (including the Partnership) has entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole.
(10) Good Standing of the Company. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation”, and has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and each subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation or other entity in good standing under the laws of its jurisdiction of incorporation or organization; the Partnership has been duly organized and is validly existing in good standing under the laws of the State of Delaware, with power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus, and has been duly qualified as a foreign partnership for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction.
(11) Capitalization. All of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company; the capital stock of the Company conforms in all material respects to the description thereof in the Registration Statement and the Prospectus; except as set forth on Exhibit E or the Prospectus, all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and (except as set forth on Exhibit E or the Prospectus and for directors’ qualifying shares) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; and the Partnership has an authorized capitalization as set forth in the Prospectus, and all of the issued partnership interests of the Partnership have been duly and validly authorized and issued and are fully paid and non-assessable; and there are
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no authorized or outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any shares of capital stock of the Company or any of its subsidiaries other than those described in the Registration Statement and the Prospectus.
(12) Power and Authority. Each of the Company and the Partnership has full right, power and authority to execute and deliver this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation” and to perform its obligations hereunder and thereunder, as applicable; and all action required to be taken for the due and proper authorization, execution and delivery by each of them of this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation” and the consummation by each of them of the transactions contemplated hereby and thereby, as applicable, has been duly and validly taken.
(13) Authorization of Agreements. This Agreement has been duly authorized, executed and delivered by the Company and the Partnership. The Master Forward Confirmation has been duly authorized, executed and delivered by the Company. Any “Supplemental Confirmation” will be duly authorized, executed and delivered by the Company.
(14) Authorization of Shares. The Shares to be sold by the Company pursuant to this Agreement have been duly authorized for issuance and sale pursuant to this Agreement and, in the case of any Forward, the Master Forward Confirmation and, when issued and delivered by the Company pursuant to this Agreement and, in the case of any Forward, the related Forward Contract, against payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable; no holder of the Shares is or will be subject to personal liability by reason of being such a holder; the issuance and sale of the Shares to be sold by the Company pursuant to this Agreement and, in the case of any Forward, the Master Forward Confirmation, is not subject to any preemptive rights, rights of first refusal or other similar rights of any securityholder of the Company or any other person; and the delivery of the Shares being sold by the Company against payment therefor pursuant to the terms of this Agreement and, in the case of any Forward, the related Forward Contract, will pass valid title to the Shares being sold by the Company, free and clear of any lien, claim, encumbrance or defect in title. The certificates used by the Company to evidence the Common Stock are in valid and sufficient form.
(15) Description of Shares. The Common Stock and the Company’s charter and bylaws conform in all material respects to all of the respective statements relating thereto contained in the Registration Statement and the Prospectus and such statements conform in all material respects to the rights set forth in the respective instruments and agreements defining the same.
(16) Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries (including the Partnership) is in violation of its Articles of Incorporation, Bylaws, Certificate of Limited Partnership or partnership agreement or in default in the performance or observance of any material obligation, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound. The issue and sale of the Shares and the compliance by the Company and the Partnership with all of the
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provisions of the Shares, this Agreement, the Master Forward Confirmation and each “Supplemental Confirmation” under the Master Forward Confirmation and the consummation of the transactions herein and therein contemplated (including the Company’s issuance and sale of the Shares from time to time pursuant to this Agreement or the Alternative Distribution Agreements and the Master Forward Confirmation and “Supplemental Confirmation” under the Master Forward Confirmation, as applicable, and its use of the net proceeds from the sale of the Shares as described in the Prospectus under the caption “Use of Proceeds”) will not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a material default under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries (including the Partnership) is a party or by which the Company or any of its subsidiaries (including the Partnership) is bound or to which any of the property or assets of the Company or any of its subsidiaries (including the Partnership) is subject, nor will such action result in any violation of the provisions of the Articles of Incorporation or Bylaws of the Company, the Certificate of Limited Partnership or partnership agreement of the Partnership or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries (including the Partnership) or any of their properties.
(17) Absence of Labor Dispute. No labor disturbance by or dispute with employees of the Company and its subsidiaries (including the Partnership) exists or, to the knowledge of the Company or the Partnership, is contemplated or threatened, and neither the Company nor the Partnership is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal suppliers, contractors or customers, except as would not have a material adverse effect on the current or future financial position, stockholders’ equity, partners’ capital or results of operations of the Company and its subsidiaries (including the Partnership) considered as one enterprise (“Material Adverse Effect”).
(18) Absence of Proceedings. Other than as set forth in the Registration Statement and the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries (including the Partnership) is a party or of which any property of the Company or any of its subsidiaries (including the Partnership) is the subject which, if determined adversely to the Company or any of its subsidiaries (including the Partnership), would individually or in the aggregate have a Material Adverse Effect or materially adversely affect the consummation of the transactions contemplated in this Agreement, the Alternative Distribution Agreements, the Master Forward Confirmation and any “Supplemental Confirmation” under the Master Forward Confirmation; and, to the best of the Partnership’s knowledge and the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.
(19) Accuracy of Descriptions and Exhibits. The statements set forth in the Registration Statement and Prospectus under the captions “Description of the Securities that May Be Offered by Regency Centers Corporation”, insofar as they purport to constitute a summary of the terms of the Shares, and under the captions “Certain Material Federal Income Tax Considerations”, “Certain Provisions of Florida Law and of Our Articles of Incorporation and Bylaws” and “Plan of Distribution; Conflicts of Interest”, insofar as they purport to describe the laws and the documents referred to therein, are accurate and complete in all material respects.
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(20) Possession of Intellectual Property. The Company and its subsidiaries (including the Partnership) own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted and as proposed to be conducted, and the conduct of their respective businesses will not conflict in any material respect with any such rights of others. The Company and its subsidiaries (including the Partnership) have not received any notice of any claim of infringement, misappropriation or conflict with any such rights of others in connection with its patents, patent rights, licenses, inventions, trademarks, service marks, trade names, copyrights and know-how, which could reasonably be expected to result in a Material Adverse Effect.
(21) Absence of Further Requirements. No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company and the Partnership of the transactions contemplated by this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation”, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Shares by or through Agent or Forward Seller, as applicable.
(22) Possession of Licenses and Permits. The Company and its subsidiaries (including the Partnership) possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in the Registration Statement and the Prospectus, except for licenses, certificates, permits or authorizations which the failure to possess or make the same would not, individually or in the aggregate, have a Material Adverse Effect; and except as described in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries (including the Partnership) has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course.
(23) Title to Property. The Company and its subsidiaries (including the Partnership) have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement and the Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries (including the Partnership); and any real property and buildings held under lease by the Company and its subsidiaries (including the Partnership) are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries (including the Partnership).
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(24) Investment Company Act. Neither the Partnership nor the Company is, and after giving effect to the offering and sale of the Shares, will be an “investment company”, or an entity “controlled” by an “investment company”, as such terms are defined in the United States Investment Company Act of 1940, as amended (the “Investment Company Act”).
(25) Environmental Laws. (i) The Company and its subsidiaries (including the Partnership) (a) are, and at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions, judgments, decrees, orders and the common law relating to pollution or the protection of the environment, natural resources or human health or safety, including those relating to the generation, storage, treatment, use, handling, transportation, Release (as defined below) or threat of Release of Hazardous Materials (as defined below) (collectively, “Environmental Laws”), (b) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, (c) have not received notice of any actual or potential liability under or relating to, or actual or potential violation of, any Environmental Laws, including for the investigation or remediation of any Release or threat of Release of Hazardous Materials, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, (d) are not conducting or paying for, in whole or in part, any investigation, remediation or other corrective action pursuant to any Environmental Law at any location, and (e) are not a party to any order, decree or agreement that imposes any obligation or liability under any Environmental Law, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Company and its subsidiaries (including the Partnership), except in the case of each of (i) and (ii) above, for any such matter, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in the Registration Statement and the Prospectus, (a) there are no proceedings that are pending, or that are known to be contemplated, against the Company and its subsidiaries (including the Partnership) under any Environmental Laws in which a governmental entity is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (b) the Company and its subsidiaries (including the Partnership) are not aware of any facts or issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws, including the Release or threat of Release of Hazardous Materials, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of the Company and its subsidiaries (including the Partnership), and (c) none of the Company and its subsidiaries (including the Partnership) anticipates material capital expenditures relating to any Environmental Laws.
(26) Hazardous Materials. There has been no storage, generation, transportation, use, handling, treatment, Release or threat of Release of Hazardous Materials by, relating to or caused by the Company and its subsidiaries (including the Partnership) (or, to the knowledge of the Company and its subsidiaries (including the Partnership), any other entity (including any predecessor) for whose acts or omissions the Company and its subsidiaries (including the Partnership) is or could reasonably be expected to be liable) at, on, under or from any property or facility now or previously owned, operated or leased by the Company and its subsidiaries (including the Partnership), or at, on, under or from any other property or facility, in violation of any Environmental Laws or in a manner or amount or to a location that could
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reasonably be expected to result in any liability of the Company and its subsidiaries (including the Partnership) under any Environmental Law, except for any violation or liability which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. “Hazardous Materials” means any material, chemical, substance, waste, pollutant, contaminant, compound, mixture, or constituent thereof, in any form or amount, including petroleum (including crude oil or any fraction thereof) and petroleum products, natural gas liquids, asbestos and asbestos containing materials, naturally occurring radioactive materials, brine, and drilling mud, regulated or which can give rise to liability under any Environmental Law. “Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in, into or through the environment, or in, into from or through any building or structure.
(27) Absence of Registration Rights. There are no persons with registration rights or other similar rights to have any securities (debt or equity) registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation” or otherwise registered by the Company under the Securities Act, and there are no persons with co-sale rights, tag-along rights or other similar rights to have any securities (debt or equity) included in the offering contemplated by this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation” or sold in connection with the sale of Shares pursuant to this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation”, except in each case for such rights that have been duly waived in writing; and the Company has given all notices required by, and has otherwise complied with its obligations under, all registration rights agreements, co-sale agreements, tag-along agreements and other similar agreements in connection with the transactions contemplated by this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation”.
(28) Nasdaq Global Select Market. The outstanding shares of Common Stock and the Shares to be sold by the Company hereunder and under the Master Forward Confirmation and any “Supplemental Confirmation” have been approved for listing, subject only to official notice of issuance, on the Nasdaq Global Select Market, and are registered pursuant to Section 12(b) of the Exchange Act; the Company is in material compliance with the rules and regulations of the Nasdaq Global Select Market, including without limitation, the requirements for continued listing of the Common Stock on the Nasdaq Global Select Market, and there are no actions, suits or proceedings pending, threatened or, to the Company’s knowledge, contemplated, and the Company has not received any notice from the Nasdaq Global Select Market, regarding the revocation of such or otherwise regarding the delisting of the Common Stock from the Nasdaq Global Select Market nor has the Company taken any action designed to, or likely to have the effect of, terminating the registration of the Shares under the Exchange Act or delisting any such securities from the Nasdaq Global Select Market.
(29) Tax Returns. The Company and its subsidiaries (including the Partnership) have filed all foreign, federal, state and local tax returns that are required to be filed (taking into account any applicable extensions), except where the failure so to file would not, individually or in the aggregate, have a Material Adverse Effect, and have paid all taxes required to by paid by them and any assessment, fine or penalty levied against any of them, to the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty
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that is currently being contested in good faith by appropriate actions and for which appropriate reserves have been included in the applicable financial statements and except for such taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the aggregate, have a Material Adverse Effect.
(30) Real Estate Investment Trust. The Company has qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code (the “Code”), for each of the fiscal years from its inception through the most recently completed fiscal year, and the Company’s present and contemplated organization, ownership, method of operation, assets and income are such that the Company is in a position under present law to so qualify for the current fiscal year and in the future.
(31) Insurance. The Company and its subsidiaries (including the Partnership) have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries (including the Partnership) and their respective businesses; and neither the Company nor any of its subsidiaries (including the Partnership) has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business.
(32) Accounting Controls and Disclosure Controls. The Company and its subsidiaries (including the Partnership) maintain systems of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and have been designed by, or under the supervision of, their respective principal executive and principal financial officers, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles, including, but not limited to internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) the interactive data in eXtensible Business Reporting Language furnished by the Company to the Commission has been prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except as disclosed in the Registration Statement and the Prospectus, there are no material weaknesses in the Company’s or the Partnership’s internal controls. The Company and its subsidiaries (including the Partnership) maintain an effective system of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Company and the Partnership in reports that they file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and
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communicated to the Company or the Partnership’s respective management as appropriate to allow timely decisions regarding required disclosure. The Company and its subsidiaries (including the Partnership) have carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(33) Compliance with the Sarbanes-Oxley Act. There is and has been no material failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(34) Permitted Free Writing Prospectus. The Company has not distributed and will not distribute any offering material in connection with the offering and sale of the Shares to be sold under this Agreement, the Master Forward Confirmation and any “Supplemental Confirmation” by Agent or the Forward Seller, as applicable, other than the Prospectus and any Issuer Free Writing Prospectus reviewed and consented to by Agent or the Forward Seller, as applicable.
(35) Actively Traded Security. The Common Stock is an “actively traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(36) Absence of Manipulation. Other than excepted activity pursuant to Regulation M under the Exchange Act, the Company will not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares.
(37) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and neither the Company nor the Partnership is the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Shares.
(38) Statistical, Demographic or Market-Related Data. Nothing has come to the attention of the Company or the Partnership that has caused the Company or the Partnership to believe that the statistical, demographic and market-related data included in the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(39) Foreign Corrupt Practices Act. Neither the Company nor any of its subsidiaries (including the Partnership) nor, to the knowledge of the Company or the Partnership, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or any of its subsidiaries (including the Partnership) is aware of or has taken any action, directly or indirectly, that has resulted or would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (collectively, the “FCPA”), including, without limitation, making use of the mails or
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any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to pay or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, and the Company and its subsidiaries (including the Partnership) have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(40) Money Laundering Laws. The operations of the Company and its subsidiaries (including the Partnership) are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries (including the Partnership) with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(41) OFAC. Neither the Company nor any of its subsidiaries (including the Partnership) nor, to the knowledge of the Company or the Partnership, any director, officer, agent, employee, affiliate or representative of the Company or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Partnership will not, directly or indirectly, use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(42) Extensions of Credit and Margin Requirements. None of the transactions contemplated by this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation” (including, without limitation, the use of the proceeds from the sale of the Shares) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations G, T, U, and X of the Board of Governors of the Federal Reserve System.
(43) Lending Relationship. Except as disclosed in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has any outstanding borrowings from, or is a party to any line of credit, credit agreement or other credit facility or otherwise has a borrowing relationship with, any bank or other lending institution affiliated with Agent or Forward Seller, as applicable, and the Company does not intend to use any of the proceeds from the sale of the Shares to repay any debt owed to Agent or Forward Seller, as applicable, or any affiliate thereof.
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(44) Statements and Financial Information. The statements and financial information (including the assumptions described therein) constituting forward-looking information included in the Prospectus or incorporated by reference therein from the Partnership’s and the Company’s most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q (in each case under the heading “Management’s Discussion and Analysis of Financial Condition and Results of Operations”) (collectively, the “Projections”) (i) are within the coverage of the safe harbor for forward-looking statements set forth in Section 27A of the Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the Exchange Act, as applicable, (ii) were made by the Company and the Partnership with a reasonable basis and in good faith and reflect the Partnership’s and the Company’s good faith best estimate of the matters described therein, and (iii) have been prepared in all material respects in accordance with Item 10 of Regulation S-K under the Securities Act; the assumptions used in the preparation of the Projections are reasonable; and none of the Partnership, the Company or the Company’s subsidiaries are aware of any business, economic or industry developments materially inconsistent with the assumptions underlying the Projections.
(45) Transfer Taxes. There are no stock or other transfer taxes, stamp duties, capital duties or other similar duties, taxes or charges payable in connection with the execution or delivery of this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation” by the Company or the issuance or sale by the Company of the Shares to be sold by the Company under this Agreement, the Master Forward Confirmation or any “Supplemental Confirmation”.
(46) Related Party Transactions. No relationship, direct or indirect, exists between or among the Company or any of its subsidiaries (including the Partnership), on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company or any of its subsidiaries (including the Partnership), on the other, that is required by the Securities Act to be described in the Prospectus and is not so described.
(47) ERISA. (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Code) would have any liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code, except for noncompliance that could not reasonably be expected to result in material liability to the Company or its subsidiaries (including the Partnership); (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption that could reasonably be expected to result in a material liability to the Company or its subsidiaries (including the Partnership); (iii) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has been satisfied (without taking into account any waiver thereof or extension of any amortization period) and is reasonably expected to be satisfied in the future (without taking into account any waiver thereof or extension of any amortization period); (iv) the fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to
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occur that either has resulted, or could reasonably be expected to result, in material liability to the Company or its subsidiaries (including the Partnership); (vi) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation (the “PBGC”), in the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the PBGC or any other governmental agency or any foreign regulatory agency with respect to any Plan that could reasonably be expected to result in material liability to the Company or its subsidiaries (including the Partnership). None of the following events has occurred or is reasonably likely to occur: (x) a material increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiaries (including the Partnership) in the current fiscal year of the Company and its subsidiaries (including the Partnership) compared to the amount of such contributions made in the Company and its subsidiaries’ (including the Partnership’s) most recently completed fiscal year; or (y) a material increase in the Company and its subsidiaries’ (including the Partnership’s) “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) compared to the amount of such obligations in the Company and its subsidiaries’ (including the Partnership’s) most recently completed fiscal year.
(48) No Other Contracts. Neither the Company nor any of its subsidiaries (including the Partnership) is a party to any contract, agreement or understanding with any person (other than this Agreement, the Alternative Distribution Agreements, the Forward Master Confirmation or any “Supplemental Confirmation”) that would give rise to a valid claim against the Company or any of its subsidiaries (including the Partnership) or any Underwriter for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Shares.
(49) Proprietary Trading. The Company acknowledges and agrees that Agent or Forward Seller, as applicable, has informed the Company that Agent or Forward Seller, as applicable, may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent or Forward Seller, as applicable, in the Placement Notice (as amended by the corresponding Acceptance, if applicable); provided, that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as agreed by Agent or Forward Seller, as applicable, in the Placement Notice (as amended by the corresponding Acceptance, if applicable) or (ii) to the extent Agent or Forward Seller, as applicable, may engage in sales of Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity).
(50) No Prohibition on Dividends by Subsidiaries. No subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
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(51) Cybersecurity. Except as disclosed in the Registration Statement and the Prospectus, (i) (x) there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ (including the Partnership’s) information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data, other than, in the case of this clause (i), any breaches or compromises that are not, individually or in the aggregate, material and as to which the Company or the Partnership does not reasonably expect to make any public disclosure; (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.
(b) Certificates. Any certificate signed by any officer of the Company and delivered to Agent, the Forward Seller and the Forward Purchaser, counsel for Agent or counsel for the Forward Seller and the Forward Purchaser shall be deemed a representation and warranty by the Company to Agent, the Forward Seller and the Forward Purchaser, as the case may be, as to the matters covered thereby.
SECTION 6. Sale and Delivery; Settlement.
(a) Sale of Issuance Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions of this Agreement, upon Agent’s acceptance of the terms of a Placement Notice specifying that it relates to an “Issuance” or upon receipt by Agent of an Acceptance, as the case may be, and unless the sale of the Issuance Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares at market prevailing prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Company acknowledges and agrees that (i) there can be no assurance that Agent will be successful in selling Issuance Shares, (ii) Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Issuance Shares for any reason other than a failure by Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 6 and (iii) Agent shall be under no obligation to purchase Issuance Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by Agent in the Placement Notice (as amended by the corresponding Acceptance, if applicable).
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(b) Settlement of Issuance Shares. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable), settlement for sales of Issuance Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each, an “Issuance Settlement Date”). On each Issuance Settlement Date, the Issuance Shares sold through Agent for settlement on such date shall be delivered by the Company to the applicable Agent against payment of (i) the Net Proceeds from the sale of such Issuance Shares or (ii) as mutually agreed between the Company and Agent, the Gross Proceeds from the sale of such Issuance Shares. The gross proceeds to the Company (the “Gross Proceeds”) shall be equal to the aggregate offering price received by Agent at which such Issuance Shares were sold, after deduction for any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales. The net proceeds to the Company (the “Net Proceeds”) shall be equal to Gross Proceeds less the Agent’s commission, discount or other compensation payable by the Company pursuant to Section 3 hereof and any other amounts due and payable by the Company to Agent hereunder pursuant to Section 8(a) hereof. In the event the Company and the Agent have mutually agreed to the delivery of Gross Proceeds at an Issuance Settlement Date, the Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 3 hereof and any other amounts due and payable by the Company to Agent hereunder pursuant to Section 8(a) hereof shall be set forth and invoiced in a periodic statement from Agent to the Company, payment to be made by the Company promptly after its receipt thereof.
(c) Delivery of Issuance Shares. On or before each Issuance Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Issuance Shares being sold by crediting Agent’s or its designee’s account (provided Agent shall have given the Company written notice of such designee prior to the Issuance Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Issuance Settlement Date, Agent will deliver the related Net Proceeds or Gross Proceeds, as applicable, in same day funds to an account designated by the Company prior to the Issuance Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Issuance Shares on an Issuance Settlement Date, the Company, in addition to and in no way limiting the rights and obligations set forth in Section 10(a) and Section 11 hereto, will (i) hold Agent harmless against any loss, liability, claim, damage, or expense whatsoever (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to Agent any commission, discount, or other compensation to which it would otherwise have been entitled absent such default.
(d) Sale of Forward Hedge Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions in this Agreement and the Master Forward Confirmation, upon the Forward Purchaser and Forward Seller’s acceptance of the terms of a Placement Notice specifying that it relates to a “Forward” or upon receipt by Forward Purchaser and Forward Seller of an Acceptance, as the case may be, and unless the sale of the Forward Hedge Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement or the Master Forward Confirmation (including without limitation as a result of any event described in clause (x) or (y) of the proviso contained in the definition of Forward Hedge Selling Period), the Forward Purchaser will use its
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commercially reasonable efforts to borrow or cause its affiliate to borrow a number of Forward Hedge Shares sufficient to have an aggregate sales price as close as reasonably practicable to the Forward Hedge Amount specified in the Placement Notice (as amended by the corresponding Acceptance, if applicable) and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares at market prevailing prices, and otherwise in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable). Each of the Company and the Forward Purchaser acknowledges and agrees that (i) there can be no assurance that the Forward Purchaser or its affiliate will be successful in borrowing or that the Forward Seller will be successful in selling Forward Hedge Shares, (ii) the Forward Seller will incur no liability or obligation to the Company, the Forward Purchaser, or any other person or entity if it does not sell Forward Hedge Shares borrowed by the Forward Purchaser or its affiliate for any reason other than a failure by the Forward Seller to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Forward Hedge Shares as required under this Section 6, and (iii) the Forward Purchaser will incur no liability or obligation to the Company, the Forward Seller, or any other person or entity if it or its affiliate does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow such Forward Hedge Shares as required under this Section 6. In acting hereunder, the Forward Seller will be acting as agent for the Forward Purchaser and not as principal.
(e) Delivery of Forward Hedge Shares. Unless otherwise specified in the applicable Placement Notice (as amended by the corresponding Acceptance, if applicable), settlement for sales of Forward Hedge Shares will occur on the third (3rd) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each, a “Forward Hedge Settlement Date”). On or before each Forward Hedge Settlement Date, the Forward Purchaser will, or will cause its transfer agent to, electronically transfer the Forward Hedge Shares being sold by crediting the Forward Seller or its designee’s account (provided Forward Seller shall have given the Forward Purchaser written notice of such designee prior to the Forward Hedge Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Forward Hedge Settlement Date, the Forward Seller will deliver the related aggregate Forward Hedge Price to the Forward Purchaser in same day funds to an account designated by the Forward Purchaser prior to the relevant Forward Hedge Settlement Date.
(f) Denominations; Registration. The Shares shall be in such denominations and registered in such names as Agent or the Forward Seller, as applicable, may request in writing at least one full business day before the Settlement Date. The Company or the Forward Purchaser, as applicable, shall deliver the Shares, if any, through the facilities of The Depository Trust Company as described in the preceding paragraphs unless Agent or the Forward Seller, as applicable, shall otherwise instruct.
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(g) Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Shares, if after giving effect to the sale of such Shares, the aggregate offering price of the Shares sold pursuant to this Agreement would exceed the lesser of (i) together with the aggregate offering price of all Shares and Forward Hedge Shares sold under this Agreement and each of the Alternative Distribution Agreements, the Maximum Amount, (ii) the amount available for offer and sale under the currently effective Registration Statement, or (iii) the amount authorized from time to time to be issued and sold under this Agreement by the Board of Directors of the Company or a duly authorized committee thereof. Under no circumstances shall the Company cause or request the offer or sale of any Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Board of Directors of the Company and notified to Agent or the Forward Seller, as applicable, in writing.
(h) Limitation on Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares or any other equity security of the Company shall only be effected by or through only one of Agent or the Forward Seller, as the case may be, or the respective Alternative Agents on any single given day, but in no event more than one, and the Company shall in no event request that Agent or the Forward Seller, as the case may be, and one or more of the Alternative Agents sell Shares on the same day; provided, however, that (a) the foregoing limitation shall not apply to (i) exercise of any option, warrant, right or any conversion privilege set forth in the instrument governing such security or (ii) sales solely to employees or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such persons, (b) such limitation shall not apply on any day during which no sales are made pursuant to this Agreement, and (c) such limitation shall not apply, if prior to any such request to sell Shares, all Shares the Company has previously requested Agent, the Forward Seller or any Alternative Agents to sell have been sold.
(i) Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Shares and, by notice to Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) given by telephone (confirmed promptly by facsimile transmission or email), shall cancel any instructions for the offer or sale of any Shares, and Agent, the Forward Seller and the Forward Purchaser, as the case may be, shall not be obligated to offer or sell any Shares, (i) during the 14 calendar days prior to the first date (each, an “Announcement Date”) on which the Company shall issue a press release containing, or shall otherwise publicly announce, its earnings or revenue results for a completed fiscal year or quarter (each, an “Earnings Announcement”), (ii) except as provided in Section 6(j) below, at any time from and including an Announcement Date through and including the time that the Company files (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement, or (iii) during any other period in which the Company is in possession of material non-public information; provided that, unless otherwise agreed between the Company and Agent, the Forward Seller or the Forward Purchaser, as the case may be, for purposes of (i) and (ii) above, such period shall be deemed to end at the relevant Filing Time.
(j) If the Company wishes to offer, sell or deliver Shares at any time during the period from and including an Announcement Date through and including the corresponding Filing Time, the Company shall (i) prepare and deliver to Agent (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward) (with a copy to their respective counsel) a Current Report on Form 8-K which shall include substantially the same
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financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to Agent or the Forward Seller and the Forward Purchaser, as the case may be, and obtain the consent of Agent or the Forward Seller and the Forward Purchaser, as the case may be, to the filing thereof (such consent not to be unreasonably withheld), (ii) provide Agent or the Forward Seller and the Forward Purchaser, as the case may be, with the officers’ certificate, opinions/letters of counsel and accountants’ letter called for by Sections 7(o), (p) and (r) hereof; respectively, (iii) afford Agent or the Forward Seller and the Forward Purchaser, as the case may be, the opportunity to conduct a due diligence review in accordance with Section 7(m) hereof and (iv) file such Earnings 8-K with the Commission. The provisions of clause (ii) of Section 6(i) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinions/letters of counsel and accountants’ letter pursuant to this Section 6(j) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions/letters of counsel and accountants’ letters as provided in Section 7 hereof and (B) other than as set forth in this Section 6(j), this Section 6(j) shall in no way affect or limit the operation of the provisions of clauses (i) and (iii) of Section 6(i), which shall have independent application.
SECTION 7. Covenants of the Company and the Partnership. The Company and the Partnership, jointly and severally, covenant with Agent, the Forward Seller and the Forward Purchaser as follows:
(a) Registration Statement/Prospectus Amendments; SEC Comment Letters. The Company will not file (i) any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, (ii) any Replacement Registration Statement (other than a shelf registration statement that registers the offering of securities in addition to the Shares and, with respect to which, a prospectus supplement specifically relating to the offering and sale of the Shares is prepared prior to the sale of any Shares pursuant to such Replacement Registration Statement (the “Replacement Prospectus Supplement”)) or (iii) a Replacement Prospectus Supplement, unless a copy thereof has been submitted to Agent, the Forward Seller and the Forward Purchaser within a reasonable period of time before the filing and Agent, the Forward Seller and the Forward Purchaser have not reasonably objected thereto (provided, however, that the failure of Agent, the Forward Seller or the Forward Purchaser to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect Agent’s, the Forward Seller’s or the Forward Purchaser’s right to rely on the representations and warranties made by the Company in this Agreement) and the Company will promptly notify Agent, the Forward Seller and the Forward Purchaser when any such filing has been made or become effective, as applicable, and furnish to Agent, the Forward Seller and the Forward Purchaser at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR. The Company will cause each amendment or
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supplement to the Prospectus, other than documents incorporated by reference or an amendment or supplement relating solely to the issuance or offering of securities other than the Shares, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) under the Securities Act (without reliance on Rule 424(b)(8)). The Company will notify Agent, the Forward Seller and the Forward Purchaser of any comment letter from the Commission or any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information relating thereto (in each case, other than an amendment, supplement, comment letter or request relating solely to the issuance or offering of securities other than the Shares) (i) promptly after receipt if received after the date of this Agreement and during any Selling Period or period in which a Prospectus relating to any Shares is required by the Securities Act to be delivered in connection with a pending sale of the Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) or (ii) in all other circumstances, prior to the delivery of the first Placement Notice following the Company’s receipt of such comment letter or request.
(b) Notice of Commission Stop Orders. The Company will advise Agent, the Forward Seller and the Forward Purchaser, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any other order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Shares. The Company will make every reasonable effort to prevent the issuance of any stop order, the suspension of any qualification of the Shares for offering or sale and any loss or suspension of any exemption from any such qualification, and if any such stop order is issued or any such suspension or loss occurs, to obtain the lifting thereof at the earliest possible moment.
(c) Delivery of Registration Statement and Prospectus. The Company will furnish to Agent, the Forward Seller, the Forward Purchaser and their respective counsel (at the expense of the Company) copies of the Registration Statement (including exhibits thereto), the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses, that are filed with the Commission during any Selling Period or period in which a Prospectus is required by the Securities Act to be delivered in connection with a pending sale of the Shares (including, without limitation, pursuant to Rule 172 under the Securities Act), in each case as soon as reasonably practicable and in such quantities and at such locations as Agent, the Forward Seller or the Forward Purchaser may from time to time reasonably request; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to Agent, the Forward Seller and the Forward Purchaser to the extent such document is available on EDGAR. The copies of the Registration Statement, the Prospectus, any amendments or supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses, furnished to Agent, the Forward Seller and the Forward Purchaser will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(d) Continued Compliance with Securities Laws. If at any time during any Selling Period or period in which a Prospectus is required by the Securities Act to be delivered in connection with a pending sale of Shares (including, without limitation, pursuant to Rule 172 under the Securities Act), any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for Agent, the Forward Seller or the Forward Purchaser or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or (iii) if it shall be necessary, in the opinion of such counsel, at any such time, amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act, the Company will promptly notify Agent or the Forward Seller and the Forward Purchaser, as applicable, to suspend the offering of Shares during such period until the Company has prepared and filed with the Commission such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and will supply any supplemented Prospectus to Agent or the Forward Seller and the Forward Purchaser, as applicable, in such quantities as Agent or the Forward Seller and the Forward Purchaser, as applicable, may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained in the Registration Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, prevailing at that subsequent time, not misleading, the Company will promptly notify Agent or the Forward Seller and the Forward Purchaser, as applicable, to suspend the offering of Shares during such period and the Company will, subject to Section 7(a) hereof, promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(e) Blue Sky and Other Qualifications. The Company will use its best efforts, in cooperation with Agent and the Forward Seller, to qualify Shares for offering and sale, or to obtain an exemption for the Shares to be offered and sold, under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as Agent and the Forward Seller may designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Shares (but in no event for less than one year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which Shares have been so qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of Shares (but in no event for less than one year from the date of this Agreement).
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(f) Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to Agent or the Forward Seller, as applicable, the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) Use of Proceeds. The Company will apply the Net Proceeds from the sale of the Shares and the proceeds received under each Forward Contract in the manner set forth in the Prospectus under “Use of Proceeds.”
(h) Listing. During any Selling Period or period in which the Prospectus relating to the Shares is required by the Securities Act to be delivered in connection with a pending sale of the Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause the Shares to be listed on the Nasdaq Global Select Market.
(i) Filings with the Nasdaq Global Select Market. The Company will timely file with the Nasdaq Global Select Market all material documents and notices required by the Nasdaq Global Select Market of companies that have or will issue securities that are traded on the Nasdaq Global Select Market.
(j) Reporting Requirements. The Company, during any period when the Prospectus is required to be delivered under the Securities Act and the Exchange Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act.
(k) Notice of Other Sales. From the time the Company issues a Placement Notice until the settlement for sales of all Shares remaining under such Placement Notice (as amended by the corresponding Acceptance, if applicable), the Company will not, without giving Agent, the Forward Seller and the Forward Purchase at least two (2) business days’ prior written notice specifying the nature of the proposed sale and the date of such proposed sale (A) offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant for the sale of, lend or otherwise transfer or dispose of, directly or indirectly, any Common Stock or securities convertible into or exchangeable or exercisable for or repayable with Common Stock, or file any registration statement under the Securities Act with respect to any of the foregoing (other than a shelf registration statement under Rule 415 under the Securities Act, a registration statement on Form S-8 or post-effective amendment to the Registration Statement) or (B) enter into any swap or other agreement or any transaction that transfers in whole or in part, directly or indirectly, any of the economic consequence of ownership of the Common Stock, or any securities convertible into or exchangeable or exercisable for or repayable with Common Stock, whether any such swap or transaction described in clause (A) or (B) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (i) the Common Stock to be offered and sold through Agent or the Alternative Placement Agents pursuant to this Agreement, the Alternative Distribution Agreements or any terms agreement, (ii) Common Stock issuable pursuant to the Company’s dividend reinvestment
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plan as it may be amended or replaced from time to time and (iii) equity incentive awards approved by the Board of Directors or the compensation committee thereof or the issuance of Common Stock upon exercise thereof, (iv) the issuance of securities, not to exceed 5% of the outstanding capital stock of the Company, in connection with an acquisition, merger, or sale or purchase of assets described in the Prospectus (including by incorporation by reference) or in connection with a non-material acquisition, merger, sale, or purchase of assets, or (v) the issuance of securities in connection with the conversion of limited partnership interests.
(l) Change of Circumstances. The Company will, at any time during a fiscal quarter in which the Company intends to tender a Placement Notice or sell Shares, advise Agent or Forward Seller, as applicable, promptly after it shall have received notice or obtained knowledge thereof, of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided to Agent or Forward Seller, as applicable, pursuant to this Agreement.
(m) Due Diligence Cooperation. The Company will cooperate with any reasonable due diligence review conducted by Agent or the Forward Seller and the Forward Purchaser, as applicable, or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior officers, during regular business hours and at the Company’s principal offices, as Agent or the Forward Seller and the Forward Purchaser, as applicable, may reasonably request.
(n) Disclosure of Sales. The Company will disclose, in its Quarterly Reports on Form 10-Q and in its Annual Report on Form 10-K the number of shares of Common Stock sold under this Agreement and any Alternative Distribution Agreement, the net proceeds to the Company from such sales and the compensation paid by the Company with respect to such sales.
(o) Representation Dates; Certificates. On or prior to the date that the first Shares are sold pursuant to the terms of this Agreement and:
(1) each time the Company:
(i) files the Prospectus relating to the Shares or amends or supplements the Registration Statement (other than a prospectus supplement relating solely to an offering of securities other than the Shares) or the Prospectus relating to the Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Shares (except as provided in the clauses below);
(ii) files an Annual Report on Form 10-K under the Exchange Act;
(iii) files a Quarterly Report on Form 10-Q under the Exchange Act; or
(iv) files a Current Report on Form 8-K containing amended financial information (other than an Earnings Announcement, to “furnish” information pursuant to Item 2.02 or 7.01 of Form 8-K) under the Exchange Act; and
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(2) at any other time reasonably requested by Agent, the Forward Seller or the Forward Purchaser (each such date of filing of one or more of the documents referred to in clauses (1)(i) through (iv) above and any time of request pursuant to this Section 7(o) shall be a “Representation Date”),
the Company shall furnish Agent, the Forward Seller and the Forward Purchaser with a certificate, in the form attached hereto as Exhibit F, as promptly as possible and in no event later than three (3) Trading Days following any Representation Date. The requirement to provide a certificate under this Section 7(o) shall be waived for any Representation Date occurring at a time at which no Placement Notice (as amended by the corresponding Acceptance, if applicable) is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such calendar quarter shall be considered a Representation Date) and the next occurring Representation Date. Notwithstanding the foregoing, if the Company subsequently decides to sell Shares following a Representation Date when the Company relied on such waiver and did not provide Agent with a certificate under this Section 7(o), then before the Company delivers the Placement Notice or Agent or the Forward Seller sells any Shares, the Company shall provide Agent, the Forward Seller and the Forward Purchaser with a certificate, in the form attached hereto as Exhibit F, dated the date such certificate is delivered. The date any such certificate is delivered is referred to herein as a “Bring-Down Date.”
(p) Opinions of Counsel for Company. On or prior to the date that the first Shares are sold pursuant to the terms of this Agreement and on each Bring-Down Date, the Company shall cause to be furnished to Agent, the Forward Seller and the Forward Purchaser written opinions and to Agent and the Forward Seller a 10b-5 statement of Foley & Lardner LLP, counsel for the Company, dated the date that the opinions and 10b-5 statement are required to be delivered, in the forms attached hereto as Exhibit G, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinions and 10b-5 statement for a Bring-Down Date, such counsel may furnish Agent, the Forward Seller and the Forward Purchaser with a letter to the effect that Agent, the Forward Seller and the Forward Purchaser may rely on a prior opinion and Agent and the Forward Seller may rely on a prior 10b-5 statement delivered under this Section 7(p) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion or 10b-5 statement shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Bring-Down Date).
(q) Opinion of Counsel for Agent. On or prior to the date that the first Shares are sold pursuant to the terms of this Agreement and on each Bring-Down Date, Agent, the Forward Seller and the Forward Purchaser shall have received the favorable opinion and Agent, the Forward Seller and the Forward Purchaser shall have received the 10b-5 statement of Sullivan & Cromwell LLP, counsel to Agent, dated the date that the opinion and 10b-5 statement is required to be delivered, in customary form and substance satisfactory to Agent, the Forward Seller and the Forward Purchaser, as applicable, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
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(r) Comfort Letter. On or prior to the date that the first Shares are sold pursuant to the terms of this Agreement and on each Bring-Down Date, the Company shall cause its independent accountants to furnish Agent and the Forward Seller a letter (a “Comfort Letter”), dated the date the Comfort Letter is delivered, in form and substance satisfactory to Agent and the Forward Seller, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the PCAOB and (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(s) Additional Documents. On or prior to the date that the first Shares are sold pursuant to the terms of this Agreement and on each Bring-Down Date, the Company shall cause to be furnished to counsel for Agent, the Forward Seller and the Forward Purchaser such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to Agent, the Forward Seller and the Forward Purchaser and counsel for Agent, the Forward Seller and the Forward Purchaser.
(t) Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) sell, bid for, or purchase the Shares to be issued and sold pursuant to this Agreement, or pay anyone any compensation for soliciting purchases of the Shares to be issued and sold pursuant to this Agreement other than Agent; provided, however, that the Company may bid for and purchase its Common Stock in accordance with Rule 10b-18 under the Exchange Act; provided further, that no such bids or purchases shall be made by the Company during the three (3) Trading Days before or after any sale of any Shares pursuant to this Agreement.
(u) Insurance. The Company and its subsidiaries (including the Partnership) shall maintain, or caused to be maintained, insurance in such amounts and covering such risks as is reasonable and customary for companies engaged in similar businesses in similar industries.
(v) Compliance with Laws. The Company and each of its subsidiaries (including the Partnership) shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Prospectus, and the Company and each of its subsidiaries (including the Partnership) shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable environmental laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Material Adverse Effect.
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(w) Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither it nor its subsidiaries will be or become, at any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that are not considered an investment company.
(x) Securities Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Shares as contemplated by the provisions hereunder and the Prospectus.
(y) No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance in writing by the Company and Agent in its capacity as principal or agent hereunder or the Forward Seller as agent hereunder, as applicable, the Company (including its agents and representatives, other than Agent or the Forward Seller in its capacity as such) will not, directly or indirectly, make, use, prepare, authorize, approve or refer to any free writing prospectus relating to the Shares to be sold by Agent as principal or agent hereunder or by the Forward Seller as agent hereunder.
(z) Sarbanes-Oxley Act. The Company and its subsidiaries (including the Partnership) will use their best efforts to comply with all effective applicable provisions of the Sarbanes-Oxley Act of 2002.
(aa) Regulation M. If the Company has reason to believe that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Common Stock, it shall promptly notify the other parties, and sales of Common Stock under this Agreement shall be suspended until that or other exemptive provisions have been satisfied in the judgment of all parties.
(bb) Real Estate Investment Trust Treatment. The Company will take all reasonable efforts to enable the Company to continue to meet the requirements for qualification and taxation as a Real Estate Investment Trust under the Code for subsequent tax years that include any portion of the term of this Agreement.
(cc) Refusal to Purchase. If, to the knowledge of the Company, all filings required by Rule 424 in connection with this offering shall not have been made or the representations in Section 5(a)(1) through 5(a)(5) shall not be true and correct on the applicable Settlement Date, the Company will offer to any person who has agreed to purchase Shares from the Company as the result of an offer to purchase solicited by Agent or the Forward Seller, as applicable, the right to refuse to purchase and pay for such Shares.
(dd) Proprietary Trading. The Company consents to Agent or Forward Seller, as applicable, trading in the Company’s Common Stock for its own account and for the account of its clients at the same time as sales of Shares occur pursuant to this Agreement.
(ee) Reservation of Shares. The Company shall reserve and keep available at all time, free of pre-emptive rights, Shares for the purpose of enabling the Company to satisfy its obligations under this Agreement and the Master Forward Confirmation (including with respect to each “Supplemental Confirmation” executed in connection with the Master Forward Confirmation).
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(ff) Maximum Amount. The Company will promptly notify Agent, the Forward Seller and the Forward Purchaser in writing when the Maximum Amount has been sold pursuant to this Agreement and the Alternative Distribution Agreements. Prior to receipt of such written notice, each of Agent, the Forward Seller and the Forward Purchaser shall be entitled to assume for all purposes under this Agreement that the Maximum Amount has not been sold pursuant to this Agreement and the Alternative Distribution Agreements.
SECTION 8. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto, (ii) the word processing, printing and delivery to Agent, Forward Seller and Forward Purchaser of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Shares, (iii) the preparation, issuance and delivery of the Shares to Agent, the Forward Seller and the Forward Purchaser, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Shares to such parties, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification or exemption of the Shares under securities laws in accordance with the provisions of Section 7(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for Agent, the Forward Seller and the Forward Purchaser in connection therewith, (vi) the preparation, printing and delivery to Agent, the Forward Seller and the Forward Purchaser of copies of any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by Agent, the Forward Seller and the Forward Purchaser to investors, (vii) the preparation, printing and delivery to Agent, the Forward Seller and the Forward Purchaser of copies of the Blue Sky Survey and any Canadian “wrapper” and any supplements thereto, (viii) the fees and expenses of any transfer agent or registrar for the Shares, (ix) the filing fees incident to, and reasonable fees and disbursements of counsel to Agent, the Forward Seller and the Forward Purchaser in connection with the review by FINRA of the terms of the sale of the Shares, (x) the fees and expenses incurred in connection with the listing of the Shares on the Nasdaq Global Select Market and any filing to be made with the Nasdaq Global Select Market and FINRA, (xi) the disbursements of counsel for Agent, the Forward Seller and the Forward Purchaser in connection with the copying and delivery of closing documents delivered by the Company or the Company’s accountants or counsel (including any local counsel) and (xii) if Shares having an aggregate offering price of $25,000,000 or more have not been offered and sold under this Agreement and the Alternative Distribution Agreements collectively by the twelve-month (12-month) anniversary of this Agreement (or such earlier date at which the Company terminates this Agreement) (the “Determination Date”), the Company shall reimburse Agent, the Forward Seller and the Forward Purchaser for all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel for Agent, the Forward Seller and the Forward Purchaser, respectively, incurred in connection with the transactions contemplated by this Agreement (the “Agent
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Expenses”, and together with the similar expenses incurred by the Alternative Agents, the “Expenses”). The Expenses shall be divided among Agent and the Alternative Agents in amounts proportionate to the aggregate offering price of Shares sold by Agent under this Agreement and by the Alternative Agents under the Alternative Distribution Agreements, after taking into account the amount of Expenses actually paid by Agent and the Alternative Agents. The Agent Expenses shall be due and payable by the Company to Agent and Alternative Agents within five (5) business days of the Determination Date.
(b) Termination of Agreement. If this Agreement is terminated by Agent, Forward Seller or Forward Purchaser in accordance with the provisions of Section 9(b) or Section 13(a)(i) hereof, the Company shall, unless Shares having an aggregate offering price of $25,000,000 have been sold under this Agreement from the period beginning May 16, 2017 and ending immediately prior to termination, reimburse Agent, the Forward Seller and the Forward Purchaser for all of their out of pocket expenses, including the reasonable fees and disbursements of counsel for Agent, the Forward Seller and the Forward Purchaser.
SECTION 9. Conditions Precedent to the Obligations of Agent and the Forward Seller and the Forward Purchaser.
(a) The right of the Company to deliver a Placement Notice hereunder, the obligation of Agent and the Forward Seller, as applicable, to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell Shares in accordance with the terms of such Placement Notice (as amended by the corresponding Acceptance, if applicable) and the obligation of the Forward Purchaser to use its commercially reasonable efforts to borrow or cause its affiliate to borrow Forward Hedge Shares in connection with a Placement Notice (as amended by the corresponding Acceptance, if applicable) are subject to the continuing accuracy of the representations and warranties of the Company and the Partnership contained in this Agreement or certificates of any officer of the Company or any subsidiary of the Company (including the Partnership) delivered pursuant to the provisions hereof, the performance by the Company of its covenants and obligations hereunder, and the satisfaction, on the applicable Settlement Date, of each of the following conditions, except to the extent waived by Agent, the Forward Seller and the Forward Purchaser, in their sole discretion:
(1) Effectiveness of Registration Statement; Payment of Filing Fee. The Registration Statement shall remain effective and shall be available for the sale of all Shares contemplated to be issued by such Placement Notice (as amended by the corresponding Acceptance, if applicable). The Company shall have paid the required Commission filing fees relating to such Shares within the time required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus).
(2) No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of the subsidiaries (including the Partnership) of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement,
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the response to which would require any post-effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that results in the Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or any Issuer Free Writing Prospectus containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(3) No Misstatement or Material Omission. None of Agent, the Forward Seller or the Forward Purchaser shall have advised the Company that the Registration Statement or Prospectus, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in Agent’s, the Forward Seller’s or the Forward Purchaser’s reasonable opinion is material, or omits to state a fact that in Agent’s, the Forward Seller’s or the Forward Purchaser’s reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading that has not previously been corrected or withdrawn.
(4) Material Changes. Except as disclosed in the Prospectus, there shall not have been any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ equity, partners’ capital or results of operations of the Company and its subsidiaries (including the Partnership) considered as one enterprise, whether or not arising in the ordinary course of business.
(5) Opinions of Counsel for Company. Agent, the Forward Seller and the Forward Purchaser shall have received the favorable opinion and Agent and the Forward Seller shall have received the 10b-5 statement of Foley & Lardner LLP, counsel for the Company, required to be delivered pursuant to Section 7(p) on or before the date on which such delivery of such opinion and 10b-5 statement is required pursuant to Section 7(p).
(6) Opinion of Counsel for Agent. Agent, the Forward Seller and the Forward Purchaser shall have received the favorable opinion and Agent and the Forward Seller shall have received the 10b-5 statement of Sullivan & Cromwell LLP, counsel to Agent, required to be delivered pursuant to Section 7(q) on or before the date on which the delivery of such opinion and 10b-5 statement is required pursuant to Section 7(q).
(7) Officer’s Certificate. Agent, the Forward Seller and the Forward Purchaser shall have received the certificate required to be delivered pursuant to Section 7(o) on or before the date on which delivery of such certificate is required pursuant to Section 7(o).
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(8) Accountant’s Comfort Letter. Agent and the Forward Seller shall have received the Comfort Letter required to be delivered pursuant Section 7(r) on or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(r).
(9) Additional Documents. On or prior to each date on which the Company is required to deliver a certificate pursuant to Section 7(t), Agent, the Forward Seller and the Forward Purchaser and their respective counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Shares as herein contemplated shall be reasonably satisfactory in form and substance to Agent, the Forward Seller and the Forward Purchaser and their respective counsel.
(10) Approval of Listing. Such Shares shall have been approved for listing on the Nasdaq Global Select Market, subject only to official notice of issuance.
(11) FINRA. FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(12) No Suspension. Trading in the Shares shall not be suspended on the Nasdaq Global Select Market.
(13) Securities Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424.
(14) Maximum Amount. In no event may the Company issue a Placement Notice to sell an Issuance Amount or a Forward Hedge Amount, as the case may be, to the extent that the sum of (i) the Sales Price of the requested Issuance Amount or Forward Hedge Amount, as applicable, plus (ii) the aggregate Sales Price of all Shares issued under all previous Issuances and Forwards effected pursuant to this Agreement and the Alternative Distribution Agreements would exceed the Maximum Amount.
(b) Termination of Agreement. If any condition specified in this Section 9 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by Agent, Forward Seller or Forward Purchaser by notice to the Company, and such termination shall be without liability of any party to any other party, except that, in the case of any termination of this Agreement, Sections 5, 10, 11, 12 and 21 hereof shall survive such termination and remain in full force and effect.
SECTION 10. Indemnification.
(a) Indemnification by the Company. The Company and the Partnership, jointly and severally, agree to indemnify and hold harmless each of Agent, the Forward Seller and the Forward Purchaser, each of their respective agents, officers, directors, employees, affiliates (as such term is defined in Rule 501(b) under the Securities Act) (each, an “Affiliate”), each of their respective selling agents and each person, if any, who controls Agent, the Forward Seller or the Forward Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows:
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(1) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430B Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) or in any “road show” (as defined in Rule 433 under the Securities Act) not constituting an “Issuer Free Writing Prospectus,” or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement (including without limitation, by means of a consent to judgment) of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by Agent, the Forward Seller or the Forward Purchase, as the case may be), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (1) or (2) above;
provided, however, that this indemnity shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by Agent, the Forward Seller or the Forward Purchaser, as the case may be, expressly for use in the Registration Statement, any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each of Agent, the Forward Seller and the Forward Purchaser agrees to indemnify and hold harmless the Company, its directors, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 10, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus or
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the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by Agent, the Forward Seller or the Forward Purchaser, as the case may be, expressly for use therein, it being understood and agreed that no such information has been furnished by Agent, the Forward Seller or the Forward Purchaser for use in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 10(a) above, counsel to the indemnified parties shall be selected by Agent or the Forward Seller, as applicable, and, in the case of parties indemnified pursuant to Section 10(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 10 or Section 11 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 10(a)(2) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 11. Contribution. If the indemnification provided for in Section 10 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
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incurred by such indemnified party, as incurred (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand, and Agent, the Forward Seller and the Forward Purchaser, on the other hand, from the offering of the Shares pursuant to this Agreement, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of Agent, the Forward Seller and the Forward Purchaser, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and Agent, the Forward Seller and the Forward Purchaser, on the other hand, in connection with the offering of the Shares pursuant to this Agreement, shall be deemed to be in the same respective proportions as (a) in the case of the Company, (x) the total net proceeds from the offering of the Issuance Shares for each Issuance under this Agreement (before deducting expenses) received by the Company, bear to the aggregate sales price of the Issuance Shares, or (y) the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Price for such Forward (the “Net Forward Proceeds”), bear to the sum of the Net Forward Proceeds and the Actual Forward Commission (as defined below) (such sum, the “Gross Forward Amount”), (b) in the case of Agent, the total commissions received by Agent, bear to the aggregate sales price of the Issuance Shares, (c) in the case of the Forward Seller, the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission for such Forward (the “Actual Forward Commission”), bear to the Gross Forward Amount, and (d) in the case of the Forward Purchaser, the net Spread (as such term is defined in the Master Forward Confirmation and net of any related stock borrow costs or other costs or expenses actually incurred) for all Forward Contracts executed in connection with this Agreement, bear to the Gross Forward Amount.
The relative fault of the Company, on the one hand, and Agent, the Forward Seller and the Forward Purchaser, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by each such party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
Each of the Company, Agent, the Forward Seller and the Forward Purchaser agrees that it would not be just and equitable if contribution pursuant to this Section 11 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
43
Notwithstanding the provisions of this Section 11, (i) neither Agent nor the Forward Seller shall in any event be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions with respect to the offering of the Issuance Shares or the aggregate Forward Hedge Selling Commissions, as the case may be, received by it under this Agreement exceeds the amount of any damages that Agent or the Forward Seller has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and (ii) the Forward Purchaser shall in no event be required to contribute any amount in excess of the amount by which the net Spread (as such term is defined in the Master Forward Confirmation and net of any related stock borrow costs or other costs or expenses actually incurred) for all Forward Contracts entered into pursuant to this Agreement exceeds the amount of any damages that Forward Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. Further, in no event shall the liability of any indemnifying party under this Section 11 be greater in amount than such person would have been obligated to pay by way of indemnification if the indemnification provided for in this Section 11 had been available under the circumstances.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11, each person, if any, who controls Agent, the Forward Seller or the Forward Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and Agent’s, the Forward Seller’s and the Forward Purchaser’s Affiliates and selling agents shall have the same rights to contribution as Agent, the Forward Seller or the Forward Purchaser, as the case may be, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company.
SECTION 12. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any subsidiary of the Company (including the Partnership) submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of Agent, the Forward Seller or the Forward Purchaser or any of their affiliates or selling agents or any person controlling Agent, the Forward Seller or the Forward Purchaser, or by or on behalf of the Company, its officers or directors or any person controlling Company, (ii) delivery and acceptance of the Shares and payment therefor, (iii) the settlement of any Forward Contract or (iv) any termination of this Agreement or the Master Forward Confirmation and any “Supplemental Confirmation” executed in connection with the Master Forward Confirmation.
SECTION 13. Termination of Agreement.
(a) Termination; General. Each of Agent, the Forward Seller or the Forward Purchaser, as applicable, may terminate the right of the Company to effect any Issuances or Forwards under this Agreement, in its sole discretion, by notice to the Company, as hereinafter specified at any time if (i) in the judgment of Agent, there has been, since the time of execution
44
of this Agreement or since the date as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of Agent, impracticable or inadvisable to market the Shares or to enforce contracts for the sale of the Shares, or (iii) trading in the Shares has been suspended or limited by the Commission or the Nasdaq Global Select Market, or (iv) trading generally on the NYSE or the Nasdaq Global Select Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or in Europe, or (v) a banking moratorium has been declared by either Federal or New York authorities.
(b) Termination by the Company. Subject to Section 13(f) hereof, the Company shall have the right to terminate this Agreement in its sole discretion at any time after the date of this Agreement.
(c) Termination by Agent, the Forward Seller or the Forward Purchaser. Subject to Section 13(f) hereof, each of Agent, the Forward Seller or the Forward Purchaser, as applicable, shall have the right to terminate the right of the Company to effect any Issuances or Forwards under this Agreement in its sole discretion at any time after the date of this Agreement.
(d) Automatic Termination. Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate on the date that the aggregate offering price of the Shares sold pursuant to this Agreement and the Alternative Distribution Agreements, including any separate underwriting or similar agreement covering principal transactions, equals the Maximum Amount.
(e) Continued Force and Effect. This Agreement shall remain in full force and effect unless terminated pursuant to Sections 13(a), (b), (c), or (d) above or otherwise by mutual agreement of the parties.
(f) Effectiveness of Termination. Any termination of this Agreement shall be effective on the date specified in such notice of termination; provided, however, that such termination shall not be effective until the close of business on the date of receipt of such notice by Agent, the Forward Seller, the Forward Purchaser or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Shares, such Shares shall settle in accordance with the provisions of this Agreement.
(g) Liabilities. If this Agreement is terminated pursuant to this Section 13, such termination shall be without liability of any party to any other party except as provided in Section 8 hereof, and except that, in the case of any termination of this Agreement, Sections 5, 10, 11, 12, 13, 14, 20 and 22 hereof shall survive such termination and remain in full force and effect.
45
SECTION 14. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to Agent shall be sent to Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: General Counsel (email: sgreen@jefferies.com), with a copy to (which shall not constitute notice) Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043); notices to Forward Seller and Forward Purchaser shall be sent to Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: Colyer Curtis and Tim O’Connor (emails: ccurtis@jefferies.com and Tim.OConnor@Jefferies.com), with a copy to (which shall not constitute notice) Jefferies LLC, 520 Madison Avenue, New York, New York 10022, Attention: Sonia Han Levovitz and Dawn Pieper (emails: shan@jefferies.com and dpieper@jefferies.com), with a copy to (which shall not constitute notice) Sulllivan & Cromwell LLP. 125 Broad Street, New York, New York 10004, Attention: Robert W. Downes (facsimile (212) 291-9043) and with a copy to (which shall not constitute notice) Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017, Attention: Mark M. Mendez (facsimile (212) 701-5829) and notices to the Company shall be directed to it at One Independent Drive, Suite 114, Jacksonville, Florida 32202 Attention: Michael Mas (facsimile (904) 355-5477),with a copy to (which shall not constitute notice) Foley & Lardner, One Independent Drive, Suite 1300, Jacksonville, Florida 32202 , Attention: Michael B. Kirwan (facsimile (904) 359-8700).
SECTION 15. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that (a) the sales price of the Shares to be sold pursuant to this Agreement will not be established by Agent, the Forward Seller or the Forward Purchaser, (b) the determination of the discounts and commissions to be paid pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and Agent, the Forward Seller and the Forward Purchaser, on the other hand, (c) in connection with any sale contemplated hereby and the process leading to any such transaction, each of Agent, the Forward Seller and the Forward Purchaser is acting solely as sales agent and/or principal in connection with the purchase and sale of the Shares and none of Agent, the Forward Seller or the Forward Purchaser is the fiduciary of the Company, or its stockholders, creditors, employees or any other party, (d) Agent, the Forward Seller and the Forward Purchaser have not assumed or will not assume an advisory or fiduciary responsibility in favor of the Company with respect to any sale contemplated hereby or the process leading thereto (irrespective of whether Agent, the Forward Seller or the Forward Purchaser have advised or are currently advising the Company on other matters) and Agent, the Forward Seller and the Forward Purchaser do not have any obligation to the Company with respect to any sale contemplated hereby except the obligations expressly set forth in this Agreement, (e) Agent, the Forward Seller, the Forward Purchaser and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company, and (f) Agent, the Forward Seller and the Forward Purchaser have not provided any legal, accounting, regulatory or tax advice with respect to any sale contemplated hereby and the Company has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate. Furthermore, the Company agrees that it is solely responsible for making its own judgments in connection with the offering (irrespective of whether Agent, the Forward Seller or the Forward Purchaser have advised or are currently advising the Company on related or other matters). The Company agrees that it will not claim that Agent, the Forward Seller or the Forward Purchaser have rendered advisory services of any nature or respect, or owes an agency, fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
46
SECTION 16. Research Analyst Independence. The Company acknowledges that Agent’s, Forward Seller’s and Forward Purchaser’s research analysts and research departments are required to be independent from its investment banking division and are subject to certain regulations and internal policies, and that Agent’s, Forward Seller’s and Forward Purchaser’s research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against Agent, the Forward Seller or the Forward Purchaser with respect to any conflict of interest that may arise from the fact that the views expressed by its research analysts and research department may be different from or inconsistent with the views or advice communicated to either of them by Agent’s, Forward Seller’s and Forward Purchaser’s investment banking divisions. The Company acknowledges that each of Agent, the Forward Seller and the Forward Purchaser is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company and any other companies that may be the subject of the transactions contemplated by this Agreement.
SECTION 17. Integration. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, Agent, the Forward Seller and the Forward Purchaser with respect to the subject matter hereof.
SECTION 18. Parties. This Agreement shall inure to the benefit of and be binding upon each of Agent, the Forward Seller, the Forward Purchaser, the Company, the Partnership and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than Agent, the Forward Seller, the Forward Purchaser, the Company, the Partnership and their respective successors and the controlling persons and officers and directors referred to in Section 10 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of Agent, the Forward Seller, the Forward Purchaser, the Company and the Partnership and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from Agent or the Forward Seller shall be deemed to be a successor by reason merely of such purchase.
SECTION 19. Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any stock split, stock dividend or similar event effected with respect to the Shares.
SECTION 20. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 21. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of Agent or the Forward Seller, as applicable, and Agent or the Forward Seller, as applicable, represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to
47
the Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act, required to be filed with the Commission. Any such free writing prospectus consented to by Agent or the Forward Seller, as applicable, or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 under the Securities Act, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit H hereto are Permitted Free Writing Prospectuses.
SECTION 22. Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
SECTION 23. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 24. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
48
SECTION 25. Amendments and Waivers. Any provision or requirement of this Agreement may be waived or amended in any respect by a writing signed by the parties hereto. No waiver or amendment shall be enforceable against any party hereto unless in writing and signed by the party against which such waiver is claimed. A waiver of any provision or requirement of this Agreement shall not constitute a waiver of any other term and shall not affect the other provisions of this Agreement. A waiver of a provision or requirement of this Agreement will apply only to the specific circumstances cited therein and will not prevent a party from subsequently requiring compliance with the waived provision or requirement in other circumstances.
SECTION 26. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION 27. Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof.
SECTION 28. Patriot Act Compliance. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), Agent is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow Agent to properly identify its clients.
[Signature Page Follows]
49
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Agent, the Forward Seller, the Forward Purchaser, the Company and the Partnership in accordance with its terms.
| Very truly yours, | ||||||
| Regency Centers Corporation | ||||||
| By: | /s/ Lisa Palmer | |||||
| Name: Lisa Palmer | ||||||
| Title: President and Chief Executive Officer | ||||||
| Regency Centers, L.P. | ||||||
| By: | Regency Centers Corporation, its general partner | |||||
| By: | /s/ Lisa Palmer | |||||
| Name: Lisa Palmer | ||||||
| Title: President and Chief Executive Officer | ||||||
| CONFIRMED AND ACCEPTED, as of the date first above written: | ||
| Jefferies LLC, as Agent | ||
| By: | /s/ Joshua G. Fuller | |
| Name: Joshua G. Fuller | ||
| Title: Managing Director | ||
| Jefferies LLC, as Forward Seller | ||
| By: | /s/ Joshua G. Fuller | |
| Name: Joshua G. Fuller | ||
| Title: Managing Director | ||
| Jefferies LLC, as Forward Purchaser | ||
| By: | /s/ Joshua G. Fuller | |
| Name: Joshua G. Fuller | ||
| Title: Managing Director | ||
[Signature Page to Equity Distribution Agreement]
EXHIBIT A
FORM OF PLACEMENT NOTICE
, 20
[Bank Name]
[Address]
Attention: [●]
(facsimile number: [●])
Email: [●]
Reference is made to the Equity Distribution Agreement among Regency Centers Corporation (the “Company”), Regency Centers, L.P., [●] (the “Forward Purchaser”) and [●] (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares thereunder, “Agent,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares thereunder, the “Forward Seller”), dated as of May 8, 2020 (the “Equity Distribution Agreement”). Capitalized terms used in this Placement Notice without definition shall have the respective definitions ascribed to them in the Equity Distribution Agreement. This Placement Notice relates to [an “Issuance”]5 [a “Forward”]6. The Company confirms that all conditions to the delivery of this Placement Notice are satisfied as of the date hereof.
[The Company confirms that it has not declared and will not declare any dividend, or caused or cause there to be any distribution, on the Common Stock if the ex-dividend date or ex-date, as applicable, for such dividend or distribution will occur during the period from, and including, the first Trading Day of the Forward Hedge Selling Period to, and including, the last Trading Day of the Forward Hedge Selling Period.]7
The Company represents and warrants that each representation, warranty, covenant and other agreement of the Company contained in the Equity Distribution Agreement [and the Master Forward Confirmation]8 is true and correct on the date hereof, and that the Prospectus, including the documents incorporated by reference therein, and any applicable Issuer Free Writing Prospectus, as of the date hereof, do not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
| 5 | Insert for a Placement Notice that relates to an “Issuance.” |
| 6 | Insert for a Placement Notice that relates to a “Forward.” |
| 7 | Insert for a Placement Notice that relates to a “Forward.” |
| 8 | Insert for Placement Notice that relates to a “Forward.” |
A-1
Number of Days in [Issuance]9 [Forward Hedge]10 Selling Period:
First Date of [Issuance]11 [Forward Hedge]12 Selling Period:
Maximum Number of Shares to be Sold:
[Issuance]13 [Forward Hedge]14 Amount: $
[Forward Hedge Selling Commission Rate: %
| Forward Price Reduction Dates |
Forward Price Reduction Amounts |
|||
| $ | ||||
| $ | ||||
| Spread: |
||||
| Initial Stock Loan Rate: basis points |
||||
| Maximum Stock Loan Rate: basis points |
||||
| Regular Dividend Amounts: |
||||
| For any calendar quarter ending on or prior to [December 31, 20[ ]]: |
$ | [ ] | ||
| For any calendar quarter ending after [December 31, 20[ ]]: |
$ | [ ] ]15 | ||
[Term: [Days][Months]]16:
Floor Price (Adjustable by Company during the [Issuance]17 [Forward Hedge]18 Selling Period, and in no event less than $1.00 per share): $ per share
| 9 | Insert for a Placement Notice that relates to an “Issuance.” |
| 10 | Insert for a Placement Notice that relates to a “Forward.” |
| 11 | Insert for a Placement Notice that relates to an “Issuance.” |
| 12 | Insert for a Placement Notice that relates to a “Forward.” |
| 13 | Insert for a Placement Notice that relates to an “Issuance.” |
| 14 | Insert for a Placement Notice that relates to a “Forward.” |
| 15 | Insert for a Placement Notice that relates to a “Forward.” Regular Dividend Amounts shall not exceed the Forward Price Reduction Amount for the Forward Price Reduction Date occurring in the relevant quarter (or, if none, shall not exceed zero). |
| 16 | Insert for a Placement Notice that relates to a “Forward.” |
| 17 | Insert for a Placement Notice that relates to an “Issuance.” |
| 18 | Insert for a Placement Notice that relates to a “Forward.” |
A-2
EXHIBIT B
COMPANY AND AGENT REPRESENTATIVES FOR NOTICE
Company Representatives for Notice:
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
B-1
Agent Representatives for Notice:
Josh Fuller
Office: (704) 943-7446
jfuller@jefferies.com
Mike Judlowe
Office: (212) 323-7515
mjudlowe@jefferies.com
Mike Magarro
Office: (917) 421-1964
mmagarro@jefferies.com
Donald Lynaugh
Office: (917) 421-1963
dlynaugh@jefferies.com
Forward Seller and Forward Purchaser Representatives for Notice:
Colyer Curtis
Office: (212) 708-2734
ccurtis@jefferies.com
Tim O’Connor
Office: (212) 284-8137
Tim.OConnor@jefferies.com
B-2
EXHIBIT C
COMPANY REPRESENTATIVES FOR TRADE CONFIRMATIONS
Lisa Palmer
President and Chief Executive Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7636
Fax: (904) 354-1832
LisaPalmer@regencycenters.com
Michael Mas
Executive Vice President and Chief Financial Officer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7470
Fax: (904) 354-1832
MichaelMas@regencycenters.com
Chris Leavitt
Senior Vice President, Finance and Treasurer
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7608
Fax: (904) 354-1832
ChrisLeavitt@regencycenters.com
Laura Clark, CFA
Senior Vice President, Capital Markets
One Independence Drive
Suite 114
Jacksonville, FL 32202
Office: (904) 598-7831
Fax: (904) 354-1832
LauraClark@regencycenters.com
C-1
EXHIBIT D
COMPENSATION
Agent shall be paid compensation at a mutually agreed rate, not to exceed 2.0% of the gross sales price of Issuance Shares pursuant to the terms of this Agreement.
Forward Seller shall be paid compensation at a mutually agreed rate, not to exceed 2.0% of the gross sales price of Forward Hedge Shares pursuant to the terms of this Agreement.
D-1
EXHIBIT E
SUBSIDIARIES OF THE COMPANY
As of May 1, 2020
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Regency Centers, L.P. |
Delaware | Regency Centers Corporation Outside Investors |
General Partner Limited Partners |
|
~99.6 ~0.4metuc |
% % | ||||
| Columbia Cameron Village SPE, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
30 70 |
% % | ||||
| Columbia Cameron Village, LLC |
Delaware | Columbia Cameron Village SPE, LLC | Member | 100 | % | |||||
| Columbia Regency Retail Partners, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia Crossroads Commons, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Dulles, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Texas 3, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Retail Sweetwater Plaza, LP |
Delaware | Columbia Retail Texas 3, LLC Columbia Regency Retail Partners, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Columbia Retail Washington 1, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Cascade Plaza, LLC |
Delaware | Columbia Retail Washington 1, LLC Columbia Regency Retail Partners, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| Columbia Julington Village, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Palm Valley Marketplace, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Regency Partners II, LLC |
Delaware | Regency Centers, L.P. Columbia Perfco Partners, L.P. |
Managing Member Member |
|
20 80 |
% % | ||||
| Columbia II Broadway Market, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Burnt Mills Shopping Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Cochran Commons, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Hollymead Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Hollymead, LLC |
Delaware | Hollymead Town Center, LLC | Member | 100 | % | |||||
| Columbia II Johns Creek, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Ridgewood, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Lorton Station Marketplace Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Lorton Station Marketplace, LLC |
Delaware | Columbia Lorton Station Marketplace Member, LLC | Member | 100 | % | |||||
| 21 | Unless otherwise noted, the sole member of all single member limited liability companies is also the managing member or manager of the limited liability company. |
E-1
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Columbia Lorton Station Town Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Marina Shores, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Plantation Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Plantation Plaza, LLC |
Delaware | Columbia Plantation Plaza Member, LLC | Member | 100 | % | |||||
| Columbia II Rockridge Center, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Retail Shorewood Crossing, LLC |
Delaware | Columbia Regency Retail Partners, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 2 Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 2, LLC |
Delaware | Columbia Shorewood Crossing Phase 2 Member, LLC | Member | 100 | % | |||||
| Columbia Shorewood Crossing Phase 3, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Signal Hill Two, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Signal Hill, LLC |
Delaware | Signal Hill Two, LLC | Member | 100 | % | |||||
| Columbia Speedway Plaza Member, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia Speedway Plaza, LLC |
Delaware | Columbia Speedway Plaza Member, LLC | Member | 100 | % | |||||
| Columbia Sutton Square, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Holding, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Columbia II Raley’s Center, LLC |
Delaware | Columbia II Holding, LLC | Member | 100 | % | |||||
| Columbia II Village Plaza, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| GRI-Regency, LLC |
Delaware | Global Retail Investors, LLC Regency Centers, L.P. |
Member Managing Member |
|
60 40 |
% % | ||||
| GRI-Lake Grove, LLC |
Delaware | GRI-Regency Lake Grove Member, LLC | Member | 100 | % | |||||
| GRI-Regency Lake Grove Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Mercer Square, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Newtown Square, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW PA-Warwick Plaza, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s, LLC (fka MCW-RC South Carolina, LLC) |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s Village Member, LLC |
Delaware | MCW-RC SC-Merchant’s, LLC | Member | 100 | % | |||||
| MCW-RC SC-Merchant’s Village, LLC |
Delaware | MCW-RC SC-Merchant’s Village Member, LLC | Member | 100 | % | |||||
| FW-CA Brea Marketplace Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW CA-Brea Marketplace, LLC |
Delaware | FW-CA Brea Marketplace Member, LLC | Member | 100 | % | |||||
| FW CA-Brea Marketplace II, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| U.S. Retail Partners Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
E-2
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| U.S. Retail Partners Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| U.S. Retail Partners, LLC |
Delaware | U.S. Retail Partners Holding, LLC U.S. Retail Partners Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW CO-Arapahoe Village, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW CO-Cherrywood Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW MN-Rockford Road, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW CO-Ralston Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| FW MN-Colonial Square, LLC |
Delaware | U.S. Retail Partners, LLC | Member | 100 | % | |||||
| USRP I Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP I Member, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP I, LLC |
Delaware | USRP I Holding, LLC USRP I Member, LLC |
Managing Member Member |
|
1 99 |
% % | ||||
| FW NJ-Plaza Square, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW VA-Greenbriar Town Center, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW VA-Festival at Manchester, LLC |
Delaware | USRP I, LLC | Member | 100 | % | |||||
| FW-Reg II Holdings, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW CA-Bay Hill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Five Points Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Mariposa Gardens Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Navajo Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Point Loma Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Rancho San Diego Village, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Silverado Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Snell & Branham Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Twin Oaks Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CA-Ygnacio Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW CT-Corbins Corner Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW DC-Spring Valley Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Riverside/Rivers Edge, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Riverview Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW IL-Stonebrook Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| USRP Willow East, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Ashburn Farm Village Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Centre Ridge Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Fox Mill Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Kings Park Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW VA-Saratoga Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
E-3
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| FW VA-The Village Shopping Center, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Aurora Marketplace, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Eastgate Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Eastgate Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Overlake Fashion Plaza, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW WA-Overlake Fashion Plaza II, LLC |
Delaware | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| Parkville Shopping Center, LLC |
Maryland | FW-Reg II Holdings, LLC | Member | 100 | % | |||||
| FW-Reg II Holding Company Two, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW IL-McHenry Commons Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Granada Village, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Laguna Niguel Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW CA-Pleasant Hill Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW IL-Civic Center Plaza, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW IN-Willow Lake West, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW NJ-Westmont Shopping Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW NC-Shoppes of Kildaire, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| FW OR-Greenway Town Center, LLC |
Delaware | FW-Reg II Holding Company Two, LLC | Member | 100 | % | |||||
| USRP LP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| USRP GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| US Retail Partners Limited Partnership |
Delaware | USRP GP, LLC USRP LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD Woodmoor Borrower, LLC |
Delaware | US Retail Partners Limited Partnership | Member | 100 | % | |||||
| FW VA-Willston Centre II, LLC |
Delaware | US Retail Partners Limited Partnership | Member | 100 | % | |||||
| FW Woodholme GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Woodholme Properties Limited Partnership |
Maryland | FW Woodholme GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodholme Borrower, LLC |
Delaware | Woodholme Properties Limited Partnership | Member | 100 | % | |||||
| FW Southside Marketplace GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Southside Marketplace Limited Partnership |
Maryland | FW Southside Marketplace GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Southside Marketplace Borrower, LLC |
Delaware | Southside Marketplace Limited Partnership | Member | 100 | % | |||||
| FW Valley Centre GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Greenspring Associates Limited Partnership |
Maryland | FW Valley Centre GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW MD-Greenspring Borrower, LLC |
Delaware | Greenspring Associates Limited Partnership | Member | 100 | % | |||||
| Eastern Shopping Centers I, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
E-4
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Cloppers Mill Village Center, LLC |
Maryland | Eastern Shopping Centers I, LLC FW-Reg II Holdings, LLC |
Member Member |
|
1 99 |
% % | ||||
| City Line Shopping Center Associates |
Pennsylvania | US Retail Partners Limited Partnership City Line LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| City Line LP, LLC |
Delaware | USRP LP, LLC | Member | 100 | % | |||||
| FW Allenbeth GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| Allenbeth Associates Limited Partnership |
Maryland | FW Allenbeth GP, LLC Eastern Shopping Centers I, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Weslyan GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW TX-Weslyan Plaza, L.P. |
Delaware | FW Weslyan GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Woodway GP, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW TX-Woodway Collection, L.P. |
Delaware | FW Woodway GP, LLC GRI-Regency, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| FW Gayton Crossing Holding, LLC |
Delaware | GRI-Regency, LLC | Member | 100 | % | |||||
| FW VA-Gayton Crossing Shopping Center, LLC |
Delaware | FW Gayton Crossing Holding, LLC | Member | 100 | % | |||||
| MCW RC III Hilltop Village Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW RC III Hilltop Village, LLC |
Delaware | MCW RC III Hilltop Village Member, LLC | Member | 100 | % | |||||
| MCW-RD Brentwood Plaza, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Bridgeton, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Dardenne Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Kirkwood Commons Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCW-RD Kirkwood Commons, LLC |
Delaware | MCW-RD Kirkwood Commons Member, LLC | Member | 100 | % | |||||
| RegCal, LLC |
Delaware | California State Teachers Retirement System Regency Centers, L.P. |
Member Managing Member |
|
75 25 |
% % | ||||
| RegCal Holding, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Apple Valley Square Member, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Apple Valley Square, LLC |
Delaware | CAR Apple Valley Square Member, LLC | Member | 100 | % | |||||
| CAR Apple Valley Land, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Braemar Village, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Calhoun Commons, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Corral Hollow, LLC |
Delaware | RegCal Holding, LLC | Member | 100 | % | |||||
| CAR Providence Commons, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| CAR Shops at the Columbia, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| KF-REG Holding, LLC |
Delaware | RegCal, LLC | Member | 100 | % | |||||
| KF-REG Associates, LLC |
Delaware | KF-REG Holding, LLC | Member | 100 | % | |||||
| King Farm Center, LLC |
Delaware | KF-REG Associates, LLC | Member | 100 | % | |||||
| US Regency Retail REIT I |
Texas | US Southern Retail, LLC US Republic Core Fund, L.P. Regency Centers, L.P. |
Common Stock Common Stock Common Stock |
|
57.27 23.53 19.20 |
% % % | ||||
| US Regency Retail I, LLC |
Delaware | US Regency Retail REIT I Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
E-5
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| RC FL-Anastasia, LLC (fka MCW-RC FL-Anastasia, LLC) |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RC FL-Shoppes at 104, LLC (fka MCW-RC FL-Shoppes at 104, LLC) |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RC GA-Howell Mill, LLC (fka MCW-RC GA-Howell Mill Village, LLC) |
Delaware | Regency Centers, LLC | Member | 100 | % | |||||
| MCD-RC CA-Amerige, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCD-RC El Cerrito Holdings, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| MCD-RC CA-El Cerrito, LLC |
Delaware | MCD-RC El Cerrito Holdings, LLC | Member | 100 | % | |||||
| REG8 Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| REG8 Tassajara Crossing, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Plaza Hermosa, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Sequoia Station, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Mockingbird Commons, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Sterling Ridge, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Prestonbrook Crossing, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Wellington, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| REG8 Berkshire Commons, LLC |
Delaware | REG8 Member, LLC | Member | 100 | % | |||||
| FL-Corkscrew Village Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Corkscrew Village, LLC |
Delaware | FL-Corkscrew Village Member, LLC | Member | 100 | % | |||||
| FL-Naples Walk Shopping Center Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Naples Walk Shopping Center, LLC |
Delaware | FL-Naples Walk Shopping Center Member, LLC | Member | 100 | % | |||||
| FL-Northgate Square Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Northgate Square, LLC |
Delaware | FL-Northgate Square Member, LLC | Member | 100 | % | |||||
| FL-Westchase Center Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| FL-Westchase Center, LLC |
Delaware | FL-Westchase Center Member, LLC | Member | 100 | % | |||||
| 19330 Hawthorne, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 1C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 60617 Balboa Mesa, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 4S Regency Partners, LLC |
Delaware | Regency Centers, L.P. 4S Ranch Company 1700, L.P. |
Member Member |
|
85 15 |
% % | ||||
| Alba Village Phase II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Alba Village Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bartram Park Center, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Belleview Square, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Belmont Chase, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bridges Insurance Company |
South Carolina | Regency Centers, L.P. | Shareholder | 100 | % | |||||
| Buckwalter Bluffton, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Caligo Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| CityLine-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
E-6
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Clayton Valley Shopping Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clybourn Commons-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Colonnade Regency, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Corvallis Market Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| CPGPI Regency Erwin, LLC |
Delaware | Regency Centers, L.P. CPGPI Erwin Retail, LLC |
Managing Member Member |
|
55 45 |
% % | ||||
| Fairfax Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Fellsway Associates Holdings Company, LLC |
Delaware | Regency Centers, L.P. Charter Fellsway, LLC Charter Fellsway Group, LLC |
Member Member Member |
|
75 24 1 |
% % % | ||||
| Fellsway Associates, LLC |
Delaware | Fellsway Associates Holdings Company, LLC | Member | 100 | % | |||||
| Fellsway Property, LLC |
Delaware | Fellsway Associates Holdings Company, LLC | Member | 100 | % | |||||
| Fontainebleau Square, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway 101, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway Azco GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Gateway Azco LP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| AZCO Partners |
Pennsylvania | Gateway Azco Partners GP, LLC Gateway Azco LP, LLC Regency Centers, L.P. |
General Partner Limited Partner Limited Partner |
|
1 89 10 |
% % % | ||||
| Glen Oak Glenview, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Grand Ridge Plaza I, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Grand Ridge Plaza II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hibernia North, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hickory Creek Plaza, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hoadly Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Holly Park Property, LLC |
Delaware | Regency Centers, L.P. Purser HP, LLC |
Managing Member Member |
|
99.273 .0727 |
% % | ||||
| Hunters Lake Tampa, LLC |
Delaware | Regency Centers, L.P. Harrison Bennett Properties, LLC |
Managing Member Member |
Varies | ||||||
| Indian Springs at Woodlands, Ltd. |
Texas | Indian Springs GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
0.1 99.9 |
% % | ||||
| Indian Springs GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Indio Jackson, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Kent Place Regency, LLC |
Delaware | Regency Centers, L.P. Kent Place Investors, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| La Floresta Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Lee Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| The Marketplace at Briargate, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Murfreesboro North, LLC |
Delaware | Regency Centers, L.P. BSM County Farm Road, LLC |
Managing Member Member |
varies | ||||||
| NSHE Winnebago, LLC |
Arizona | Regency Centers, L.P. | Member | 100 | % | |||||
| NTC-REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| New Smyrna Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Northlake Village Shopping Center, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Oakshade Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Ocala Corners, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
E-7
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Otay Mesa Crossing, LLC |
Delaware | Regency Centers, L.P. Transcan Otay Mesa, LLC |
Managing Member Member |
Varies | ||||||
| Parmer Tech Ridge, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Acquisitions, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Advisors, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Red Bank Village, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Blue Ash, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Marinita-LaQuinta, LLC |
Delaware | Regency Centers, L.P. Marinita Development Co. |
Managing Member Member |
Varies | ||||||
| Regency NC GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency-Kleban Properties, LLC |
Delaware | Regency Centers, L.P. Brick Walk Associates, LLC Pine Tree Ventures, LLC Bright Star, LLC 1261 Post Road Associates, LLC Kleban Holding Company, LLC Kleban Holding Company II, LLC Kleban Fairfield, LLC Alida Kleban Holding Company, LLC Sun Realty Associates, LLC Kleban Development Company FBW, LLC |
Member Member Member Member Member Member Member Member Member Member Member Member |
|
80.0000 5.1676 1.1789 0.9871 1.3768 2.6451 0.7769 1.1790 0.8306 3.9009 0.4598 1.4973 |
% % % % % % % % % % % % | ||||
| R-K Brick Walk I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk II, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk III, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk IV, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Brick Walk V, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield IV, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Fairfield V, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock I, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock II, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| R-K Black Rock III, LLC |
Delaware | Regency-Kleban Properties, LLC | Member | 100 | % | |||||
| Regency Petaluma, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Remediation, LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Village at Dublin, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Sandy Springs Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| SEPR Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Saugus, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Mira Vista Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shoppes on Riverside Jax, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Southpark Cinco Ranch, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Spring Hill Town Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| T&R New Albany Development Company, LLC |
Ohio | Regency Centers, L.P. Topvalco |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood, LLC |
Delaware | Regency Centers, L.P. Real Sub, LLC |
Managing Member Member |
|
50 50 |
% % | ||||
| Tinwood-Pebblebrooke, LLC |
Delaware | Tinwood, LLC | Member | 100 | % | |||||
| Twin City Plaza Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Twin City Plaza, LLC |
Delaware | Twin City Plaza Member, LLC | Member | 100 | % | |||||
| UC Shopping Center, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
E-8
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Uncommon, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Uptown Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Uptown District Regency, LLC |
Delaware | Uptown Member, LLC | Member | 100 | % | |||||
| WFC-Purnell, L.P. |
Delaware | Regency NC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Willow Festival Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Willow Oaks Crossing, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. | Common Stock | 100 | % | |||||
| 1488-2978 SC GP, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 1488-2978 SC, L.P. |
Texas | 1488-2978 SC GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Centerplace of Greeley III, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Culpeper Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| East San Marco, LLC |
Florida | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Kulpsville Village Center LP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Kulpsville Village Center, L.P. |
Delaware | RRG Pennsylvania GP, Inc. Kulpsville Village Center LP, LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Lower Nazareth LP Holding, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Lower Nazareth Partner, LP |
Delaware | Regency Realty Group, Inc. Lower Nazareth LP Holding, LLC |
Limited Partner General Partner |
|
100 0 |
% % | ||||
| Lower Nazareth GP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Lower Nazareth Commons, LP |
Delaware | Lower Nazareth GP, LLC Lower Nazareth Partner, LP |
General Partner Limited Partner |
|
.5 99.5 |
% % | ||||
| NorthGate Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Paso Golden Hill, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| RB Schererville Crossings, LLC |
Delaware | Regency Realty Group, Inc. WH41, LLC |
Managing Member Member |
Varies | ||||||
| Baronhawks, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| RRG Net, LLC |
Florida | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Regency Solar, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Regency Solar II, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Seminole Shoppes, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops at Highland Village GP, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Shops at Highland Village Development, Ltd. |
Delaware | Shops at Highland Village GP, LLC Regency Centers, L.P. |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Shops at Quail Creek, LLC |
Delaware | Regency Realty Group, Inc. | Member | 100 | % | |||||
| Stonewall Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| RRG Pennsylvania GP, Inc. |
Florida | Regency Realty Group, Inc. | Common Stock | 100 | % | |||||
| US Regency Hasley Canyon Village, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Blossom Valley, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Alden Bridge, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Bethany Park Place, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Shiloh Springs, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Willa Springs, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Dunwoody Hall, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
| US Regency Maynard Crossing, LLC |
Delaware | US Regency Retail I, LLC | Member | 100 | % | |||||
E-9
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Clarendon Regency I, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Mellody Farm, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Springwoods Village Stuebner/Regency, LLC |
Delaware | Regency Centers, L.P. Spring RRC I, LLC |
Managing Member Member |
|
53 47 |
% % | ||||
| Spring Stuebner RRC I Inc. |
Delaware | Springwoods Village Stuebner/Regency, LLC | Member | 100 | % | |||||
| Culver Public Market, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency III, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency IV, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Clarendon Regency V, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 2C Tustin Legacy, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Klahanie Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Commonwealth Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Commonwealth Regency II, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Bridgewater Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Midtown East Regency-ITB, LLC |
Delaware | Regency Centers, L.P. I.T.B. Holdings, L.L.C. |
Member Member |
|
50 50 |
% % | ||||
| The Village at Riverstone, LLC |
Delaware | Regency Centers, L.P. RIVJV, LLC |
Managing Member Member |
varies | ||||||
| Columbia II Plaza Venezia, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Chimney Rock LQR, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Garden City Park, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Pinecrest Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Springing Member, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Goodwyn, LLC |
Delaware | Regency Centers, L.P. Richmond Shopping Center, Inc. and Goodwyn Bros. General Partnership |
Managing Member Member |
Varies | ||||||
| Indigo Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| 5510-5520 Broadway, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity Asset Investor (Talega) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Bridgemill) LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Copps Hill) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Florida Portfolio) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Louisiana Portfolio) LLC |
Florida | Louisiana Holding LLC | Member | 100 | % | |||||
| Equity One (Northeast Portfolio) LLC |
Massachusetts | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (San Carlos) LLC |
Delaware | Equity One (West Coast Portfolio) LLC | Member | 100 | % | |||||
| Equity One (Sheridan Plaza) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Southeast Portfolio) LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Summerlin) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Westbury Plaza) LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (West Coast Portfolio) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One (Westport) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
E-10
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Equity One (Westport Village Center) LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Equity One Realty & Management NE, LLC |
Massachusetts | Regency Centers, L.P. | Member | 100 | % | |||||
| Regency Centers Management, LLC f/k/a Equity One Realty & Management SE, LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Portfolio Investor (Empire) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Portfolio Investor (GRI) LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| GRI-EQY (Concord) LLC |
Delaware | EQY Portfolio Investor (GRI) LLC | Member | 100 | % | |||||
| Harvard Collection LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| IRT Management LLC |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| IRT Partners, L.P. |
Georgia | Regency Centers, L.P. IRT Management LLC |
General Partner Limited Partner |
|
1 99 |
% % | ||||
| Louisiana Holding LLC |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Southbury Spirits Member, LLC |
Connecticut | Regency Centers, L.P. | Member | 100 | % | |||||
| Southbury Spirits, LLC |
Connecticut | Southbury Spirits Member, LLC | Member | 100 | % | |||||
| IRT Capital Corporation II |
Georgia | Regency Centers, L.P. | Member | 100 | % | |||||
| DIM Vastgoed N.V. |
Netherlands | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY-CSC, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| C&C (US) No. 1, Inc. |
Delaware | Regency Centers. L.P. Outside Investors |
Common Stock Preferred Stock |
|
100 varies |
%
| ||||
| C&C Delaware, Inc. |
Delaware | C&C (US) No. 1, Inc. | Common Stock | 100 | % | |||||
| 621 Colorado Associates, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Culver) LLC |
Delaware | 621 Colorado Associates, LLC | Member | 100 | % | |||||
| Equity One Realty & Management CA, Inc. |
Delaware | C&C (US) No. 1, Inc. | Common Stock | 100 | % | |||||
| Equity One (Circle West) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Compo Acres) LLC |
Connecticut | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Darinor) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Metropolitan) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Post Road) LLC |
Connecticut | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Ralphs Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Equity One (Vons Circle) LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Marketplace Center, Inc. |
California | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| Daly City Serramonte Center, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Serramonte Center Holding Co. LLC |
Delaware | Daly City Serramonte Center, LLC | Member | 100 | % | |||||
| Willows Center Concord, Inc. |
California | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| Willows Center Concord, LLC |
California | Willows Center Concord, Inc. | Member | 100 | % | |||||
| G.S. Associates Holding Corp. |
Delaware | Equity One Realty & Management CA, Inc. | Common Stock | 100 | % | |||||
| G.S. Associates Joint Venture 326118 |
California | Equity One Realty & Management CA, Inc. G.S. Associates Holding Corp. |
Partner Partner |
|
99.9 0.1 |
% % | ||||
E-11
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Escuela Shopping Center, LLC |
Delaware | G.S. Associates Joint Venture 326118 | Member | 100 | % | |||||
| Equity One JV Portfolio LLC |
Delaware | EQY Portfolio Investor (Empire) LLC New York Common Fund |
Managing Member Member |
|
30 70 |
% % | ||||
| Equity One JV Sub Riverfront Plaza LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One (Country Walk) LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub CT Path LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Veranda LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Northborough LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Equity One JV Sub Grove LLC |
Delaware | Equity One JV Portfolio LLC | Member | 100 | % | |||||
| Sunlake-Equity One LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| EQY Talega LLC |
Delaware | Equity Asset Investor (Talega) LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center JV, LLC |
Delaware | EQY Talega LLC Regency Centers, L.P. |
Member Managing Member |
|
99 1 |
% % | ||||
| Talega Village Center, LLC |
Delaware | Talega Village Center JV, LLC | Member | 100 | % | |||||
| Riverstone Market SWC, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Columbia II Metuchen, LLC |
Delaware | Columbia Regency Partners II, LLC | Member | 100 | % | |||||
| Glengary Shoppes LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Hammocks Town Center LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Magnolia Shoppes LLC |
Delaware | DIM Vastgoed, N.V. | Member | 100 | % | |||||
| Scripps REG, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hewlett I Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Hewlett II Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Roosevelt Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Rivertowns Square Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Shops on Main LQR, LLC |
Indiana | RB Schererville Crossings, LLC | Member | 100 | % | |||||
| Block in Ballard II, LLC |
Delaware | Block in Ballard II JV, LLC | Member | 100 | % | |||||
| Block in Ballard II JV, LLC |
Delaware | Regency Centers, L.P. 1290 Broadway Lane REIT, LLC |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard I JV, LLC |
Delaware | Regency Centers, L.P. Principal Enhanced Property Fund, L.P. |
Managing Member Member |
|
49.9 50.1 |
% % | ||||
| Block in Ballard, LLC |
Delaware | Reflections at the Lake REIT, LLC | Member | 100 | % | |||||
| Reflections at the Lake REIT, LLC |
Delaware | Block in Ballard I JV, LLC | Member | 100 | % | |||||
| Melrose Market Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| TF REG, LLC |
Delaware | Regency Centers, L.P. Outside Investors |
Managing Member Members |
|
18.375 varies |
%
| ||||
| New Regency Realty Group, Inc. |
Florida | Regency Centers, L.P. | Member | 100 | % | |||||
| Falls Church Regency, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| FCC Member 1 LLC |
Delaware | Falls Church Regency, LLC EYA FCC Investments LLC |
Member Managing Member |
|
75 25 |
% % | ||||
E-12
| Entity |
Jurisdiction | Owner(s) |
Nature of Interest21 |
% of Ownership |
||||||
| Falls Church Commons JV, LLC |
Delaware | FCC Member 1 LLC PNH WFC LLC |
Member Member |
|
50 50 |
% % | ||||
| 6401 Roosevelt Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Pruneyard Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Old Bridge Regency, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| Old Bridge Regency-Village, LLC |
Delaware | Old Bridge Regency, LLC Village Old Bridge LLC |
Member Member |
|
80 20 |
% % | ||||
| Restaurant Ventures, LLC |
Delaware | RB Schererville Crossings, LLC | Member | 100 | % | |||||
| NRRG Net, LLC |
Delaware | New Regency Realty Group, Inc. | Member | 100 | % | |||||
| Stonewall Regency Lending, LLC |
Delaware | Equity One Realty & Management CA, Inc. | Member | 100 | % | |||||
| Regency Protective Trust II |
Florida | New Regency Realty Group, Inc. | Beneficiary | 100 | % | |||||
| Midtown Junction, LLC |
Delaware | Regency Centers, L.P. | Member | 100 | % | |||||
| NRRG Investments I, Inc. |
Florida | New Regency Realty Group, Inc. | Common Stock | 100 | % | |||||
| Regency Kensington Bethesda Member, LLC |
Maryland | NRRG Investments I, Inc. | Member | 100 | % | |||||
| Regency Kensington Bethesda Owner, LLC |
Maryland | Regency Centers, L.P. | Member | 100 | % | |||||
E-13
EXHIBIT F
OFFICER’S CERTIFICATE
F-1
EXHIBIT G
OPINIONS OF COMPANY COUNSEL
G-1
EXHIBIT H
ISSUER FREE WRITING PROSPECTUS
None.
H-1
Exhibit 1.4
Opening Transaction
| To: | Regency Centers Corporation | |
| From: | Wells Fargo Bank, National Association | |
| Re: | Issuer Share Forward Sale Transactions | |
| Date: | May 8, 2020 | |
Ladies and Gentlemen:
The purpose of this communication (this “Master Confirmation”) is to set forth the terms and conditions of the transactions to be entered into from time to time between Wells Fargo Bank, National Association (“Dealer”) and Regency Centers Corporation (“Counterparty”) in accordance with the terms of the Equity Distribution Agreement, dated as of May 8, 2020, among Dealer, as forward purchaser, Wells Fargo Securities, LLC as agent, Wells Fargo Securities, LLC, as forward seller, Regency Centers, L.P. and Counterparty (the “Equity Distribution Agreement”) on the Trade Dates specified herein (collectively, the “Transactions” and each, a “Transaction”). This communication constitutes a “Confirmation” as referred to in the Agreement specified below. Each Transaction will be evidenced by a supplemental confirmation (each, a “Supplemental Confirmation”, and each such Supplemental Confirmation, together with this Master Confirmation, a “Confirmation” for purposes of the Agreement specified below) substantially in the form of Exhibit A hereto.
1. Each Confirmation is subject to, and incorporates, the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). For purposes of the Equity Definitions, each Transaction will be deemed to be a Share Forward Transaction.
Each Confirmation shall supplement, form a part of and be subject to an agreement (the “Agreement”) in the form of the 2002 ISDA Master Agreement (the “ISDA Form”), as published by ISDA, as if Dealer and Counterparty had executed the ISDA Form on the date hereof (but without any Schedule except for (i) the election of New York law (without regard to New York’s choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law (the “General Obligations Law”)) as the governing law and US Dollars (“USD”) as the Termination Currency and (ii) the election that the “Cross Default” provisions of Section 5(a)(vi) shall apply to Dealer and Counterparty with a “Threshold Amount” in respect of Dealer of 3% of the stockholders’ equity of Wells Fargo & Company and a “Threshold Amount” in respect of Counterparty of USD 50 million (including its equivalent in another currency) with respect to Specified Indebtedness that qualifies as Indebtedness (as defined in the Term Loan Agreement, dated as of November 17, 2011, by and among Regency Centers, L.P., as Borrower, Regency Centers Corporation, as Parent, and Wells Fargo Bank, National Association, as Administrative Agent and the other parties thereto, as amended from time to time (the “Term Loan Agreement”)), USD 25 million (including its equivalent in another currency) in Derivatives Termination Value (as defined in the Term Loan Agreement) (without regard to the effect of any close-out netting provision) with respect to Specified Indebtedness that qualifies as Derivatives Contracts (as defined in the Term Loan Agreement) or USD 100 million (including its equivalent in another currency) with respect to Specified Indebtedness that qualifies as Nonrecourse Indebtedness (as defined in the Term Loan Agreement); provided that (x) the words “, or becoming capable at such time of being declared,” shall be deleted from clause (1) thereof, (y) “Specified Indebtedness” shall have the meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of Dealer’s banking business and (z) the following language shall be added to the end of such Section 5(a)(vi): “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (X) the default was caused solely by error or omission of an administrative or operational nature; (Y) funds were available to enable the party to make the payment when due; and (Z) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay;”).
All provisions contained in the Agreement are incorporated into and shall govern each Confirmation except as expressly modified below or in the related Supplemental Confirmation. Each Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the relevant Transaction and replaces any previous agreement between the parties with respect to the subject matter hereof.
The Transactions hereunder shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer or any of its Affiliates and Counterparty or any confirmation or other agreement between Dealer or any of its Affiliates and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer or any of its Affiliates and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer or such other Affiliates and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or deemed ISDA Master Agreement. In the event of any inconsistency among the Agreement, this Master Confirmation, any Supplemental Confirmation and the Equity Definitions, the following will prevail in the order of precedence indicated: (i) such Supplemental Confirmation; (ii) this Master Confirmation; (iii) the Equity Definitions; and (iv) the Agreement.
2. The terms of the particular Transactions to which this Master Confirmation relates are as follows:
| General Terms: | ||
| Trade Date: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be, subject to the provisions opposite the caption “Early Valuation” below, the last Trading Day (as defined in the Equity Distribution Agreement) of the Forward Hedge Selling Period (as defined in the Equity Distribution Agreement) for such Transaction. | |
| Effective Date: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that is one Settlement Cycle following the Trade Date for such Transaction, or such later date on which the conditions set forth in Section 3 of this Master Confirmation shall have been satisfied or waived by Dealer. | |
| Buyer: | Dealer | |
| Seller: | Counterparty | |
| Maturity Date: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the date that follows the Trade Date for such Transaction by the number of days or months set forth in the Placement Notice (as defined in the Equity Distribution Agreement and amended by any corresponding Acceptance (as defined in the Equity Distribution Agreement), if applicable (the “Accepted Placement Notice”)) for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day). | |
| Shares: | The shares of common stock, par value $0.01 per Share, of Counterparty (Ticker: “REG”) | |
| Number of Shares: | For each Transaction, initially, as specified in the Supplemental Confirmation for such Transaction, to be the number of Shares equal to the Actual Sold Forward Amount (as defined in the Equity Distribution Agreement) for the Forward Hedge Selling Period for such Transaction, as reduced on each Relevant Settlement Date (as defined under “Settlement Terms” below) by the number of Settlement Shares to which the related Valuation Date relates. | |
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| Settlement Currency: | USD | |
| Exchange: | Nasdaq Global Select Market | |
| Related Exchange: | All Exchanges | |
| Prepayment: | Not Applicable | |
| Variable Obligation: | Not Applicable | |
| Forward Price: | For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any day thereafter, the product of the Forward Price for such Transaction on the immediately preceding calendar day and | |
| 1 + the Daily Rate * (1/365);
provided that the Forward Price for such Transaction on each Forward Price Reduction Date for such Transaction shall be the Forward Price for such Transaction otherwise in effect on such date minus the Forward Price Reduction Amount for such Forward Price Reduction Date. | ||
| Initial Forward Price: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the product of (i) an amount equal to 1 minus the Forward Hedge Selling Commission Rate (as defined in the Equity Distribution Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price, subject to adjustment as set forth herein. | |
| Volume-Weighted Hedge Price: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be the volume-weighted average of the Sales Prices (as defined in the Equity Distribution Agreement) per share of Forward Hedge Shares (as defined in the Equity Distribution Agreement) sold on each Trading Day of the Forward Hedge Selling Period for such Transaction, as reasonably determined by the Calculation Agent; provided that, solely for the purposes of calculating the Initial Forward Price, each such Sales Price (other than, with respect to the application of the Daily Rate, the Sales Price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment by the Calculation Agent in a commercially reasonable manner (including, for the avoidance of doubt, by application of the Daily Rate and any Forward Price Reduction Amount), in the same manner as the Forward Price pursuant to the definition thereof during the period from, and including, the date one Settlement Cycle immediately following the first Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction. | |
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| Daily Rate: | For any day, the Overnight Bank Rate (or if the Overnight Bank Rate is no longer available, a successor rate selected by the Calculation Agent in its commercially reasonable discretion) minus the Spread. | |
| Spread: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction. | |
| Overnight Bank Rate: | For any day, the rate set forth for such day opposite the caption “Overnight bank funding rate” as displayed on the page “OBFR01 <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page; provided that, if no such rate appears for such day on such page, Overnight Bank Rate for such day shall be such rate for the immediately preceding day for which such a rate appears. | |
| Forward Price Reduction Dates: | For each Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be each date after the last Scheduled Trading Day of the relevant Forward Hedge Selling Period and set forth under the heading “Forward Price Reduction Dates” in the Accepted Placement Notice for such Transaction. | |
| Forward Price Reduction Amount: | For each Forward Price Reduction Date of a Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction, to be the Forward Price Reduction Amount set forth opposite such date in the Accepted Placement Notice for such Transaction. | |
| Valuation: | ||
| Valuation Date: | For any Settlement (as defined below) with respect to any Transaction, if Physical Settlement is applicable, as designated in the relevant Settlement Notice (as defined below); or if Cash Settlement or Net Share Settlement is applicable, the last Unwind Date for such Settlement. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date. | |
| Unwind Dates: | For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, each day on which Dealer (or its agent or affiliate) purchases Shares in the market in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, starting on the First Unwind Date for such Settlement. | |
| First Unwind Date: | For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, as designated in the relevant Settlement Notice. | |
| Unwind Period: | For any Cash Settlement or Net Share Settlement with respect to any Settlement of any Transaction, the period starting on the First Unwind Date for such Settlement and ending on the Valuation Date for such Settlement. | |
| Cash Settlement Valuation Disruption: | If Cash Settlement is applicable with respect to any Transaction and any Unwind Date during the related Unwind Period is a Disrupted Day, the Calculation Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the 10b-18 VWAP for such Disrupted Day shall not be included in the calculation of the Settlement | |
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| Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the 10b-18 VWAP for such Disrupted Day shall be determined by the Calculation Agent based on Rule 10b-18 eligible transactions (as defined below) in the Shares on such Disrupted Day, taking into account the nature and duration of the relevant Market Disruption Event, and the weightings of the 10b-18 VWAP and the Forward Prices for each Unwind Date during such Unwind Period shall be adjusted in a commercially reasonable manner by the Calculation Agent for purposes of determining the Settlement Price and the Relevant Forward Price, as applicable, to account for the occurrence of such partially Disrupted Day, with such adjustments based on, among other factors, the duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares.
The Calculation Agent shall promptly notify Counterparty of the occurrence of any Disrupted Day and the adjustments made in connection with such Disrupted Day, and the Calculation Agent shall use good faith efforts to provide such notice no later than the Exchange Business Day immediately following such Disrupted Day. | ||
| Market Disruption Event: | The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time on any Exchange Business Day during the Unwind Period” after the word “material,” in the third line thereof. | |
| Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof. | ||
| Settlement Terms: | ||
| Settlement: | With respect to any Transaction, any Physical Settlement, Cash Settlement or Net Share Settlement of all or any portion of such Transaction. | |
| Settlement Notice: | For any Transaction, subject to “Early Valuation” below, Counterparty may elect to effect a Settlement of all or any portion of such Transaction by designating one or more Scheduled Trading Days following the Effective Date for such Transaction and on or prior to the Maturity Date for such Transaction to be Valuation Dates (or, with respect to Cash Settlements or Net Share Settlements of such Transaction, First Unwind Dates, each of which First Unwind Dates shall occur no later than the twentieth (20th) Scheduled Trading Day immediately preceding the Maturity Date for such Transaction) in a written notice to Dealer (a “Settlement Notice”) delivered no later than the applicable Settlement Method Election Date for such Transaction, which notice shall also specify (i) the number of Shares (the “Settlement Shares”) for such Settlement (not to exceed the number of Undesignated Shares for such Transaction as of the date of such Settlement Notice) and (ii) the Settlement Method applicable to such Settlement; provided that (A) Counterparty may not designate a First Unwind Date for a Cash Settlement or a Net Share Settlement of any Transaction if, as of the date of such Settlement Notice, any Shares | |
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| have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement of such Transaction for which the related Relevant Settlement Date has not occurred; and (B) if the number of Undesignated Shares as of the Maturity Date for such Transaction is not zero, then the Maturity Date for such Transaction shall be a Valuation Date for a Physical Settlement of such Transaction and the number of Settlement Shares for such Settlement shall be the number of Undesignated Shares for such Transaction as of the Maturity Date for such Transaction (provided that if such Maturity Date occurs during the period from the time any Settlement Notice is given for a Cash Settlement or Net Share Settlement of such Transaction until the related Relevant Settlement Date, inclusive, then the provisions set forth below opposite “Early Valuation” shall apply to such Transaction as if the Maturity Date for such Transaction were the Early Valuation Date for such Transaction). | ||
| Undesignated Shares: | For any Transaction, as of any date, the Number of Shares for such Transaction minus the number of Shares designated as Settlement Shares for Settlements of such Transaction for which the related Relevant Settlement Date has not occurred. | |
| Settlement Method Election: | For any Transaction, applicable; provided that: | |
| (i) Net Share Settlement shall be deemed to be included as an additional settlement method under Section 7.1 of the Equity Definitions; | ||
| (ii) Counterparty may elect Cash Settlement or Net Share Settlement for any Settlement of any Transaction only if Counterparty represents and warrants to Dealer in the Settlement Notice containing such election that, as of the date of such Settlement Notice, (A) Counterparty is not aware of any material nonpublic information concerning itself or the Shares, (B) Counterparty is electing the settlement method and designating the First Unwind Date specified in such Settlement Notice in good faith and not as part of a plan or scheme to evade compliance with Rule 10b-5 (“Rule 10b-5”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any other provision of the federal securities laws, (C) Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)), (D) Counterparty would be able to purchase a number of Shares equal to the greater of (x) the number of Settlement Shares designated in such Settlement Notice and (y) a number of Shares with a value as of the date of such Settlement Notice equal to the product of (I) such number of Settlement Shares and (II) the applicable Relevant Forward Price for such Cash Settlement or Net Share Settlement in compliance with the laws of Counterparty’s jurisdiction of organization and (E) such election, and settlement in accordance therewith, does not and will not violate or conflict with any law or regulation applicable to Counterparty, or any order or judgment of any court or other agency of government applicable to it or any of its assets, and any governmental consents that are required to have been obtained by Counterparty with respect to such election or settlement have been obtained and are in full force and effect and all conditions of any such consents have been complied with; and | ||
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| (iii) Notwithstanding any election to the contrary in any Settlement Notice, Physical Settlement shall be applicable for any Settlement of any Transaction: | ||
| (A) to all of the Settlement Shares designated in such Settlement Notice if, at any time from the date such Settlement Notice is received by Dealer until the related First Unwind Date, inclusive, (I) the trading price per Share on the Exchange (as determined by Dealer in a commercially reasonable manner) is below the Threshold Price or (II) Dealer determines, in its good faith and commercially reasonable judgment, that it would, after using commercially reasonable efforts, be unable to purchase a number of Shares in the market sufficient to unwind a commercially reasonable hedge position in respect of the portion of the Transaction represented by such Settlement Shares and satisfy its delivery obligation hereunder, if any, by the Maturity Date (x) in a manner that (A) would, if Dealer were Counterparty or an affiliated purchaser of Counterparty and taking into account any other Transactions hereunder with an overlapping Unwind Period, be in compliance with the safe harbor provided by Rule 10b-18(b) under the Exchange Act and (B) based on advice of counsel, would not raise material risks under applicable securities laws or (y) due to the lack of sufficient liquidity in the Shares (each, a “Trading Condition”); or | ||
| (B) to all or a portion of the Settlement Shares designated in such Settlement Notice if, on any day during the relevant Unwind Period, (I) the trading price per Share on the Exchange (as determined by Dealer in a commercially reasonable manner) is below the Threshold Price or (II) Dealer determines, in its good faith and commercially reasonable judgment or based on advice of counsel, as applicable, that a Trading Condition has occurred with respect to such Transaction, in which case the provisions set forth below in the fourth paragraph opposite “Early Valuation” shall apply as if such day were the Early Valuation Date for such Transaction and (x) for purposes of clause (i) of such paragraph, such day shall be the last Unwind Date of such Unwind Period and the “Unwound Shares” shall be calculated to, and including, such day and (y) for purposes of clause (ii) of such paragraph, the “Remaining Shares” shall be equal to the number of Settlement Shares designated in such Settlement Notice minus the Unwound Shares determined in accordance with clause (x) of this sentence. | ||
| Threshold Price: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction, to be 50% of the Initial Forward Price for such Transaction. | |
| Electing Party: | Counterparty | |
| Settlement Method Election Date: | With respect to any Settlement of any Transaction, the 3rd Scheduled Trading Day immediately preceding (x) the Valuation Date for such Transaction, in the case of Physical Settlement, or (y) the First Unwind Date for such Transaction, in the case of Cash Settlement or Net Share Settlement. | |
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| Default Settlement Method: | Physical Settlement | |
| Physical Settlement: | Notwithstanding Section 9.2(a)(i) of the Equity Definitions, on the Settlement Date for any Physical Settlement of any Transaction, Dealer shall pay to Counterparty an amount equal to the Forward Price for such Transaction on the relevant Settlement Date multiplied by the number of Settlement Shares for such Settlement, and Counterparty shall deliver to Dealer such Settlement Shares. | |
| Settlement Date: | For any Settlement of any Transaction to which Physical Settlement is applicable, the Valuation Date for such Settlement. | |
| Net Share Settlement: | On the Net Share Settlement Date for any Settlement of any Transaction to which Net Share Settlement is applicable, if the Net Share Settlement Amount for such Settlement is greater than zero, Counterparty shall deliver a number of Shares equal to such Net Share Settlement Amount (rounded down to the nearest integer) to Dealer, and if such Net Share Settlement Amount is less than zero, Dealer shall deliver a number of Shares equal to the absolute value of such Net Share Settlement Amount (rounded down to the nearest integer) to Counterparty, in either case, in accordance with Section 9.4 of the Equity Definitions, with such Net Share Settlement Date deemed to be a “Settlement Date” for purposes of such Section 9.4, and, in either case, plus cash in lieu of any fractional Shares included in such Net Share Settlement Amount but not delivered due to rounding required hereby, valued at the relevant Settlement Price. | |
| Net Share Settlement Date: | For any Settlement of any Transaction to which Net Share Settlement is applicable, the date that follows the Valuation Date for such Settlement by one Settlement Cycle. | |
| Net Share Settlement Amount: | For any Settlement of any Transaction to which Net Share Settlement is applicable, an amount equal to the Forward Cash Settlement Amount for such Settlement divided by the Settlement Price for such Settlement. | |
| Forward Cash Settlement Amount: | Notwithstanding Section 8.5(c) of the Equity Definitions, the Forward Cash Settlement Amount for any Cash Settlement or Net Share Settlement of any Transaction shall be equal to (i) the number of Settlement Shares for such Settlement multiplied by (ii) an amount equal to (A) the Settlement Price for such Settlement minus (B) the Relevant Forward Price for such Settlement. | |
| Relevant Forward Price: | For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement. | |
| For any Net Share Settlement of any Transaction, the weighted average of the Forward Prices for such Transaction on each Unwind Date relating to such Settlement (weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each such Unwind Date in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, as reasonably determined by the Calculation Agent). | ||
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| Settlement Price: |
For any Cash Settlement of any Transaction, subject to “Cash Settlement Valuation Disruption” above, the arithmetic average of the 10b-18 VWAP on each Unwind Date relating to such Settlement, plus a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD 0.05.
For any Net Share Settlement of any Transaction, the weighted average price of the purchases of Shares made by Dealer (or its agent or affiliate) during the Unwind Period for such Settlement in connection with unwinding its commercially reasonable hedge position relating to such Settlement (weighted based on the number of Shares purchased by Dealer or its agent or affiliate on each Unwind Date in connection with unwinding its commercially reasonable hedge position in connection with such Settlement, as reasonably determined by the Calculation Agent), plus a commercially reasonable amount determined by the Calculation Agent that in no event will exceed USD 0.03. | |
| 10b-18 VWAP: | For any Exchange Business Day, as determined by the Calculation Agent based on the 10b-18 Volume Weighted Average Price per Share as reported in the composite transactions for United States exchanges and quotation systems for the regular trading session (including any extensions thereof) of the Exchange on such Exchange Business Day (without regard to pre-open or after hours trading outside of such regular trading session for such Exchange Business Day), as published by Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day, on Bloomberg page “REG.US <Equity> AQR_SEC” (or any successor thereto), or if such price is not so reported on such Exchange Business Day for any reason or is, in the Calculation Agent’s reasonable determination, erroneous, such 10b-18 VWAP shall be as reasonably determined by the Calculation Agent. For purposes of calculating the 10b-18 VWAP for such Exchange Business Day, the Calculation Agent will include only those trades that are reported during the period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the conditions of Rule 10b-18(b)(3), each under the Exchange Act (such trades, “Rule 10b-18 eligible transactions”). | |
| Unwind Activities: |
The times and prices at which Dealer (or its agent or affiliate) purchases any Shares during any Unwind Period in connection with unwinding its commercially reasonable hedge position in respect of each Transaction shall be determined by Dealer in a commercially reasonable manner. Without limiting the generality of the foregoing, in the event that Dealer concludes, in its good faith and reasonable discretion based on advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer, so long as such policies or procedures are generally applicable in similar situations and applied to the relevant Transaction in a non-discriminatory manner) (a “Regulatory Disruption”), for it to refrain from purchasing Shares in connection with unwinding its commercially reasonable hedge position in respect of such Transaction on any Scheduled Trading Day that would have been an Unwind Date but for the occurrence of a Regulatory Disruption, Dealer may (but shall not be required to), by written notice to Counterparty, elect to deem that a | |
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| Regulatory Disruption has occurred on such Scheduled Trading Day with respect to such Transaction, in which case Dealer shall, to the extent practicable in its good faith discretion, specify the nature of such Regulatory Disruption. In such an instance, the Regulatory Disruption shall be deemed to be a Market Disruption Event, and Dealer may, in its commercially reasonable discretion, determine that such Scheduled Trading Day shall not be an Unwind Date for such Transaction in whole or in part. Dealer may exercise its right in respect of any Regulatory Disruption only in good faith in relation to events or circumstances that are not the result of actions of it or any of its Affiliates that are taken with the intent to avoid its obligations under the Transactions. Dealer shall promptly communicate to Counterparty the reason for its determination that a Regulatory Disruption has occurred pursuant to this provision, unless Dealer reasonably determines in good faith and upon the advice of legal counsel that disclosing such reason could reasonably be expected to result in a violation of any legal or regulatory requirements (including the requirements of any “self-regulatory organization” within the meaning of the Exchange Act) or related generally applicable policies and procedures that Dealer generally applies to transactions of this type. | ||
| Relevant Settlement Date: | For any Settlement of any Transaction, the Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date for such Settlement, as the case may be. | |
| Other Applicable Provisions: | To the extent Dealer is obligated to deliver Shares under any Transaction, the provisions of Sections 9.2 (last sentence only), 9.8, 9.9, 9.10, 9.11 and 9.12 of the Equity Definitions will be applicable as if “Physical Settlement” applied to such Transaction; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Counterparty is the issuer of the Shares. | |
| Share Adjustments: | ||
| Potential Adjustment Events: | Neither (i) an Extraordinary Dividend nor (ii) the grant of stock options, restricted shares, restricted stock units or performance share units, in each case, in the ordinary course pursuant to Counterparty’s equity compensation plans for directors, officers and employees, or the issuance of Shares upon the exercise of any such options or the vesting of any such units, shall constitute a Potential Adjustment Event. For the avoidance of doubt, a cash dividend on the Shares that differs from expected dividends as of the first Trading Day of the Forward Hedge Selling Period for such Transaction shall not be a Potential Adjustment Event under Section 11.2(e)(vii) of the Equity Definitions with respect to such Transaction. | |
| Extraordinary Dividend: | For any Transaction, any dividend or distribution on the Shares with an ex-dividend date occurring on any day following the first Trading Day of the Forward Hedge Selling Period for such Transaction (other than (i) any dividend or distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the Equity Definitions or (ii) a regular, quarterly cash dividend in an amount equal to or less than the Regular Dividend Amount for such calendar quarter for such | |
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| Transaction that has an ex-dividend date no earlier than the Forward Price Reduction Date occurring in the relevant quarter for such Transaction). | ||
| Regular Dividend Amount: | For each Transaction and for each calendar quarter from and including the calendar quarter in which the first Trading Day of the Forward Hedge Selling Period for such Transaction occurs to and including the calendar quarter in which the Maturity Date occurs, the amount set forth under the heading “Regular Dividend Amounts” in the Accepted Placement Notice for such Transaction and for such calendar quarter (or, if no such amount is specified, zero), as specified in Schedule I to the Supplemental Confirmation for such Transaction. For the avoidance of doubt, Counterparty may not specify a Regular Dividend Amount in an Accepted Placement Notice for a particular calendar quarter that exceeds the Forward Price Reduction Amount for the Forward Price Reduction Date that occurs in such calendar quarter (or, if none, that exceeds zero). | |
| Method of Adjustment: | Calculation Agent Adjustment | |
| Extraordinary Events: | ||
| Extraordinary Events: | The consequences that would otherwise apply under Article 12 of the Equity Definitions (as modified herein) to any applicable Extraordinary Event (excluding any Failure to Deliver, Increased Cost of Hedging, Increased Cost of Stock Borrow, Loss of Stock Borrow or any Extraordinary Event that also constitutes a Bankruptcy Termination Event, but including, for the avoidance of doubt, any other applicable Additional Disruption Event) shall not apply. | |
| Tender Offer: | Applicable; provided that Section 12.1(d) of the Equity Definitions shall be amended by replacing the reference therein to “10%” with a reference to “20%”. | |
| Delisting: | In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall be deemed to be the Exchange. | |
| Additional Disruption Events: | ||
| Change in Law: | Applicable; provided that (A) any determination as to whether (i) the adoption of or any change in any applicable law or regulation (including, without limitation, any tax law) or (ii) the promulgation of or any change in or public announcement of the formal or informal interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made in good faith and in a reasonable manner, in a manner consistent with determinations made by the relevant party in respect of similar situations, and without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer | |
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| Protection Act of 2010 or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (B) Section 12.9(a)(ii) of the Equity Definitions is hereby amended (i) by adding the words “(including, for the avoidance of doubt and without limitation, adoption or promulgation of new regulations authorized or mandated by existing statute)” after the word “regulation” in the second line thereof and (ii) by replacing the words “the interpretation” with the words “or public announcement of any formal or informal interpretation” in the third line thereof and (C) the words “, unless the illegality is due to an act or omission of the party seeking to elect termination of the Transaction with the intent to avoid its obligations under the terms of the Transaction” are added immediately following the word “Transaction” in the fifth line thereof; and provided further that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by adding the phrase “and/or Hedge Position” after the word “Shares” in clause (X) thereof and by adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date” immediately following the word “Transaction” in clause (X) thereof. Notwithstanding anything to the contrary in the Equity Definitions, a Change in Law described in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions shall not constitute a Change in Law and instead shall constitute an Increased Cost of Hedging as described in Section 12.9(a)(vi) of the Equity Definitions. | ||
| Failure to Deliver: | Applicable with respect to a Transaction if Dealer is required to deliver Shares under such Transaction; otherwise, Not Applicable. | |
| Hedging Disruption: | Applicable | |
| Increased Cost of Hedging: | Applicable | |
| Increased Cost of Stock Borrow: | Applicable; provided that Section 12.9(b)(v) of the Equity Definitions shall be amended by (i) adding “or” before clause (B) of the second sentence thereof, (ii) deleting clause (C) of the second sentence thereof and (iii) deleting the third, fourth and fifth sentences thereof. For the avoidance of doubt, upon the announcement of any event that, if consummated, would result in a Merger Event or Tender Offer, the term “rate to borrow Shares” as used in Section 12.9(a)(viii) of the Equity Definitions shall include any commercially reasonable cost borne or amount payable by the Hedging Party in respect of maintaining or reestablishing its hedge position with respect to the relevant Transaction, including, but not limited to, any assessment or other amount payable by the Hedging Party to a lender of Shares in respect of any merger or tender offer premium, as applicable. | |
| Initial Stock Loan Rate: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction. | |
| Loss of Stock Borrow: | Applicable; provided that Section 12.9(b)(iv) of the Equity Definitions shall be amended by (i) deleting clause (A) of the first sentence thereof in its entirety and (ii) replacing the words “neither the Non-Hedging Party nor the Lending Party lends” with “the Lending Party does not lend” in the second sentence thereof. | |
| Maximum Stock Loan Rate: | For each Transaction, as specified in the Supplemental Confirmation for such Transaction. | |
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| Hedging Party: | For all applicable Additional Disruption Events, Dealer (or an affiliate thereof). | |
| Determining Party: | For all applicable Extraordinary Events, Dealer (or an affiliate thereof). | |
| Lending Party: | The Lending Party may not be the Issuer or an affiliate of the Issuer. | |
| Early Valuation: | ||
| Early Valuation: | For any Transaction, notwithstanding anything to the contrary herein, in the Agreement, in any Supplemental Confirmation or in the Equity Definitions, at any time (x) following the occurrence of (1) a Hedging Event with respect to such Transaction, (2) the declaration by Issuer of an Extraordinary Dividend, or (3) an ISDA Event under clause (ii) of the definition of “ISDA Event” below with respect to such Transaction, (y) during the existence of an ISDA Event under clause (i) of the definition of “ISDA Event” below or (z) if an Excess Section 13 Ownership Position or an Excess Regulatory Ownership Position exists, Dealer (or, in the case of such an ISDA Event that is an Event of Default or Termination Event, the party entitled to designate an Early Termination Date in respect of such event pursuant to Section 6 of the Agreement) shall have the right to designate any Scheduled Trading Day to be the “Early Valuation Date” for such Transaction, in which case the provisions set forth in this “Early Valuation” section shall apply to such Transaction, in the case of an Event of Default or Termination Event, in lieu of Section 6 of the Agreement. For the avoidance of doubt, any amount calculated pursuant to this “Early Valuation” section as a result of an Extraordinary Dividend shall not be adjusted by the value associated with such Extraordinary Dividend. | |
| Dealer represents and warrants to and agrees with Counterparty that (i) based upon advice of counsel, Dealer (A) does not know of the existence on the first Trading Day of the relevant Forward Hedge Selling Period of an Excess Section 13 Ownership Position or an Excess Regulatory Ownership Position and (B) based on reasonable internal inquiry in the ordinary course of Dealer’s business does not know on the first Trading Day of the relevant Forward Hedge Selling Period of any event or circumstance that will cause the occurrence of an Excess Section 13 Ownership Position or an Excess Regulatory Ownership Position on any day during the term of such Transaction; and (ii) Dealer will not knowingly cause the occurrence of an Excess Section 13 Ownership Position or an Excess Regulatory Ownership Position on any day during the term of any Transaction for the purpose, in whole or in part, of causing the occurrence of an Early Valuation Date. | ||
| If an Early Valuation Date for a Transaction occurs on a date that is not during an Unwind Period for such Transaction, then such Early Valuation Date shall be a Valuation Date for a Physical Settlement of such Transaction, and the number of Settlement Shares for such Settlement shall be the Number of Shares on such Early Valuation Date; provided that Dealer may in its sole discretion permit Counterparty to elect Cash Settlement or Net Share Settlement in respect of such Transaction. Notwithstanding anything to the contrary in this Master Confirmation, any Supplemental Confirmation, the Agreement or the Equity Definitions, if Dealer designates an Early | ||
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| Valuation Date with respect to a Transaction (1) following the occurrence of an ISDA Event and such Early Valuation Date is to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction or (2) prior to the Counterparty’s execution of the Supplemental Confirmation relating to such Transaction, then, for purposes of such Early Valuation Date, (i) a Supplemental Confirmation relating to such Transaction completed by Dealer shall, notwithstanding the provisions under Section 3 below, be deemed to be effective; and (ii) in the case of (1), the Forward Price shall be deemed to be the Initial Forward Price (calculated assuming that the last Trading Day of such Forward Hedge Selling Period were the day immediately following the date Dealer so notifies Counterparty of such designation of an Early Valuation Date for purposes of such Early Valuation Date). | ||
| If an Early Valuation Date for a Transaction occurs during an Unwind Period for such Transaction, then (i) (A) the last Unwind Date of such Unwind Period shall be deemed to be such Early Valuation Date, (B) a Settlement shall occur in respect of such Unwind Period, and the Settlement Method elected by Counterparty in respect of such Settlement shall apply, and (C) the number of Settlement Shares for such Settlement shall be the number of Unwound Shares for such Unwind Period on such Early Valuation Date, and (ii) (A) such Early Valuation Date shall be a Valuation Date for an additional Physical Settlement of such Transaction (provided that Dealer may in its sole discretion elect that the Settlement Method elected by Counterparty for the Settlement described in clause (i) of this sentence shall apply) and (B) the number of Settlement Shares for such additional Settlement shall be the number of Remaining Shares on such Early Valuation Date. | ||
| Notwithstanding the foregoing, in the case of a Nationalization or Merger Event, if at the time of the related Relevant Settlement Date the Shares have changed into cash or any other property or the right to receive cash or any other property, the Calculation Agent shall adjust the nature of the Shares in a commercially reasonable manner to account for such change such that the nature of the Shares is consistent with what shareholders receive in such event. | ||
| ISDA Event: | (i) Any Event of Default or Termination Event, other than an Event of Default or Termination Event that also constitutes a Bankruptcy Termination Event, that gives rise to the right of either party to designate an Early Termination Date pursuant to Section 6 of the Agreement or (ii) the public announcement of any event or transaction on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction that, if consummated, would result in a Merger Event, Tender Offer, Nationalization, Delisting or Change in Law, in each case, as reasonably determined by the Calculation Agent. | |
| Amendment to Merger Event: | Section 12.1(b) of the Equity Definitions is hereby amended by deleting the remainder of such Section beginning with the words “in each case if the Merger Date is on or before” in the fourth to last line thereof. | |
| Hedging Event: | In respect of any Transaction, the occurrence or existence of any of the following events on or following the first Trading Day of the Forward | |
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| Hedge Selling Period: (i) (x) a Loss of Stock Borrow in connection with which Counterparty does not refer the Hedging Party to a reasonably satisfactory Lending Party that lends Shares in the amount of the Hedging Shares within the required time period as provided in Section 12.9(b)(iv) of the Equity Definitions or (y) a Hedging Disruption, (ii) an Increased Cost of Stock Borrow in connection with which Counterparty does not elect, and so notify the Hedging Party of its election, within the required time period to either amend such Transaction pursuant to Section 12.9(b)(v)(A) of the Equity Definitions or pay an amount determined by the Calculation Agent that corresponds to the relevant Price Adjustment pursuant to Section 12.9(b)(v)(B) of the Equity Definitions, (iii) an Increased Cost of Hedging in connection with which either Dealer or Counterparty elects to terminate the Transaction pursuant to Section 12.9(b)(vi) of the Equity Definitions or (iv) a Market Disruption Event during an Unwind Period for such Transaction and the continuance of such Market Disruption Event for at least eight Scheduled Trading Days. In respect of any Transaction, if a Hedging Event occurs or exists with respect to such Transaction on or after the first Trading Day of the Forward Hedge Selling Period (as each such term is defined in the Equity Distribution Agreement) for such Transaction and prior to the Trade Date for such Transaction, the Calculation Agent may reduce the Initial Forward Price in a commercially reasonable manner to account for such Hedging Event and any reasonable and documented out-of-pocket costs or expenses incurred by Dealer as a result of such Hedging Event. | ||
| Remaining Shares: | For any Transaction, on any day, the Number of Shares for such Transaction as of such day (or, if such day occurs during an Unwind Period for such Transaction, the Number of Shares for such Transaction as of such day minus the Unwound Shares for such Transaction for such Unwind Period on such day). | |
| Unwound Shares: | For any Transaction, for any Unwind Period in respect of such Transaction on any day, the aggregate number of Shares with respect to which Dealer has unwound its commercially reasonable hedge position in respect of such Transaction in connection with the related Settlement as of such day. | |
| Acknowledgements: | ||
| Non-Reliance: | Applicable | |
| Agreements and Acknowledgements Regarding Hedging Activities: | Applicable | |
| Additional Acknowledgements: | Applicable | |
| Transfer: | Notwithstanding anything to the contrary in the Agreement, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under any Transaction, in whole or in part, to an affiliate of Dealer whose obligation is guaranteed by Dealer or Dealer’s ultimate parent entity without the consent of Counterparty; provided that (x) Counterparty will neither (1) be required to pay, nor is there a material likelihood that it would be required to pay, an additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) of the Agreement, nor (2) receive a payment, nor is there a | |
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| material likelihood that it would receive a payment, from which an amount has been deducted or withheld for or on account of any Indemnifiable Tax in respect of which the other party is not required to pay an additional amount, in either case as a result of such transfer or assignment, (y) no Event of Default or Potential Event of Default shall have occurred with respect to either party solely as a result of such transfer and assignment and (z) prior written notice of such assignment and transfer is provided to Counterparty. | ||
| Calculation Agent: | Dealer; provided that, following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity derivatives to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate documentation required by such replacement Calculation Agent. Following any determination, adjustment or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will, within a commercially reasonable period of time following such request, provide to Counterparty by e-mail to the e-mail address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination, adjustment or calculation, as the case may be, including any quotations, market data or information from external sources used in making such determination, adjustment or calculation; provided that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information. | |
| Counterparty Payment/Delivery Instructions: | To be provided by Counterparty. | |
| Dealer Payment/Delivery Instructions: | To be provided by Dealer. | |
| Counterparty’s Contact Details for Purpose of Giving Notice: | To be provided by Counterparty. | |
| Dealer’s Contact Details for Purpose of Giving Notice: | Nothwithstanding anything to the contrary in the Agreement, the Master Confirmation or any Supplemental Confirmation, all notices to Dealer in connection with any Transaction are effective only upon receipt of email message to CorporateDerivativeNotifications@wellsfargo.com | |
| Office: | Charlotte, NC | |
| 3. | Effectiveness. |
The effectiveness of each Supplemental Confirmation and the related Transaction on the Effective Date for such Supplemental Confirmation shall be subject to the satisfaction (or waiver by Dealer) of the following conditions:
(a) the representations and warranties of Counterparty contained in the Equity Distribution Agreement, and any certificate delivered pursuant thereto by Counterparty shall be true and correct on such Effective Date as if made as of such Effective Date;
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(b) Counterparty shall have performed all of the obligations required to be performed by it under the Equity Distribution Agreement on or prior to such Effective Date;
(c) all of the conditions set forth in Section 9 of the Equity Distribution Agreement shall have been satisfied;
(d) the effective date of the Accepted Placement Notice (the “Placement Date”) shall have occurred as provided in the Equity Distribution Agreement;
(e) all of the representations and warranties of Counterparty hereunder and under the Agreement shall be true and correct on such Effective Date as if made as of such Effective Date;
(f) Counterparty shall have performed all of the obligations required to be performed by it hereunder and under the Agreement on or prior to such Effective Date, including without limitation its obligations under Section 6 hereof; and
(g) Counterparty shall, if requested by Dealer prior to the commencement of the Forward Hedge Selling Period, have delivered to Dealer an opinion of counsel in form and substance reasonably satisfactory to Dealer, with respect to the matters set forth in Section 3(a) of the Agreement and that the maximum number of Shares initially issuable under such Transaction have been duly authorized and, upon issuance pursuant to the terms of such Transaction, will be validly issued, fully paid and nonassessable.
Notwithstanding the foregoing or any other provision of this Master Confirmation or any Supplemental Confirmation, if in respect of any Transaction (x) on or prior to 9:00 a.m., New York City time, on any Settlement Date (as defined in the Equity Distribution Agreement), in connection with Dealer (or an affiliate thereof) establishing Dealer’s commercially reasonable hedge position in respect of such Transaction Dealer, Dealer (or an affiliate thereof) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the full number of Shares to be borrowed and sold pursuant to the Equity Distribution Agreement on such Settlement Date or (y) Dealer (or an affiliate thereof) would incur a stock loan cost of more than a rate equal to the Maximum Stock Loan Rate for such Transaction with respect to all or any portion of such full number of Shares, the effectiveness of the related Supplemental Confirmation and such Transaction shall be limited to the number of Shares Dealer (or an affiliate thereof) is so able to borrow in connection with establishing its commercially reasonable hedge position of such Transaction at a cost of not more than a rate equal to the Maximum Stock Loan Rate for such Transaction, which, for the avoidance of doubt, may be zero.
4. Additional Mutual Representations and Warranties. In addition to the representations and warranties in the Agreement, each party represents and warrants to the other party that it is an “eligible contract participant”, as defined in the U.S. Commodity Exchange Act (as amended), and an “accredited investor” as defined in Section 2(a)(15)(ii) of the Securities Act of 1933 (as amended) (the “Securities Act”), and is entering into each Transaction hereunder as principal and not for the benefit of any third party.
5. Additional Representations and Warranties of Counterparty. The representations and warranties of Counterparty set forth in Section 5 of the Equity Distribution Agreement are true and correct as of the date hereof, each date a Placement Notice is effective, each Trade Date for any Transaction and each Forward Hedge Settlement Date (as defined in the Equity Distribution Agreement) and are hereby deemed to be repeated on the date hereof and on each such other date to Dealer as if set forth herein. In addition to the representations and warranties in Section 5 of the Equity Distribution Agreement, the Agreement and those contained elsewhere herein, Counterparty represents and warrants to Dealer, and agrees with Dealer, that:
(a) without limiting the generality of Section 13.1 of the Equity Definitions, it acknowledges that Dealer is not making any representations or warranties with respect to the treatment of any Transaction, including without limitation ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, ASC Topic 480, Distinguishing Liabilities from Equity, ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements) or under the Financial Accounting Standards Board’s Liabilities & Equity Project;
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(b) it shall not take any action to reduce or decrease the number of authorized and unissued Shares below the sum of (i) the aggregate Number of Shares across all Transactions hereunder plus (ii) the total number of Shares issuable upon settlement (whether by net share settlement or otherwise) of any other transaction or agreement to which it is a party;
(c) it will not repurchase any Shares if, immediately following such repurchase, the aggregate Number of Shares across all Transactions hereunder would be equal to or greater than 4.5% of the number of then-outstanding Shares and it will notify Dealer promptly upon the announcement or consummation of any repurchase of Shares in an amount that, taken together with the amount of all repurchases since the date of the last such notice (or, if no such notice has been given, since the Trade Date), exceeds 0.5% of the number of then-outstanding Shares;
(d) it is not entering into this Master Confirmation or any Supplemental Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares), or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) for the purpose of inducing the purchase or sale of the Shares (or any security convertible into or exchangeable for Shares) by others;
(e) it is not aware of any material non-public information regarding itself or the Shares; it is entering into this Master Confirmation and each Supplemental Confirmation and will provide any Settlement Notice in good faith and not as part of a plan or scheme to evade compliance with Rule 10b-5 or any other provision of the federal securities laws; it has not entered into or altered any hedging transaction relating to the Shares corresponding to or offsetting any Transaction; and it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Master Confirmation and each Supplemental Confirmation under Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”);
(f) as of the date hereof and the Trade Date for each Transaction no state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares; provided that Counterparty makes no such representation or warranty regarding any such requirement that is applicable generally to the ownership of equity securities by Dealer;
(g) as of the date hereof, the Trade Date for each Transaction and the date of any payment or delivery by Counterparty or Dealer under any Transaction, it is not and will not be “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code);
(h) it is not as of the date hereof, and on the Trade Date for each Transaction and after giving effect to the transactions contemplated hereby and by each Supplemental Confirmation will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(i) as of the date hereof and the Trade Date for each Transaction, it: (i) is an “institutional account” as defined in FINRA Rule 4512(c); and (ii) is capable of evaluating investment strategies involving a security or securities, and will exercise independent judgment in evaluating any recommendations of Dealer or its associated persons; and
(j) it is not a “financial end user” as defined in 12 CFR §45.2; and
(k) IT UNDERSTANDS AS OF THE DATE HEREOF AND AS OF THE TRADE DATE FOR EACH TRANSACTION THAT EACH TRANSACTION IS SUBJECT TO COMPLEX RISKS WHICH MAY ARISE WITHOUT WARNING AND MAY AT TIMES BE VOLATILE AND THAT LOSSES MAY OCCUR QUICKLY AND IN UNANTICIPATED MAGNITUDE AND IS WILLING TO ACCEPT SUCH TERMS AND CONDITIONS AND ASSUME (FINANCIALLY AND OTHERWISE) SUCH RISKS.
| 6. | Additional Covenants of Counterparty. |
(a) Counterparty acknowledges and agrees that any Shares delivered by Counterparty to Dealer on any Settlement Date or Net Share Settlement Date for any Transaction will be (i) newly issued, (ii) approved for listing
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or quotation on the Exchange, subject to official notice of issuance, and (iii) registered under the Exchange Act, and, when delivered by Dealer (or an affiliate of Dealer) to securities lenders from whom Dealer (or an affiliate of Dealer) borrowed Shares in connection with hedging its exposure to such Transaction, will be freely saleable without further registration or other restrictions under the Securities Act in the hands of those securities lenders, irrespective of whether any such stock loan is effected by Dealer or an affiliate of Dealer (provided that such Shares may be subject to resale restrictions if such securities lender is an “affiliate” of Counterparty). Accordingly, Counterparty agrees that any Shares so delivered will not bear a restrictive legend and will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System. In addition, Counterparty represents and agrees that any such Shares shall be, upon such delivery, duly and validly authorized, issued and outstanding, fully paid and nonassessable, free of any lien, charge, claim or other encumbrance.
(b) Counterparty agrees that Counterparty shall not enter into or alter any hedging transaction relating to the Shares corresponding to or offsetting any Transaction. Without limiting the generality of the provisions set forth opposite the caption “Unwind Activities” in Section 2 of this Master Confirmation, Counterparty acknowledges that it has no right to, and agrees that it will not seek to, control or influence Dealer’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under or in connection with any Transaction, including, without limitation, Dealer’s decision to enter into any hedging transactions.
(c) Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Master Confirmation or any Supplemental Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification, waiver or termination shall be made at any time at which Counterparty is aware of any material non-public information regarding Counterparty or the Shares.
(d) Counterparty shall promptly provide notice thereof to Dealer (i) upon the occurrence of any event that would constitute an Event of Default or a Termination Event in respect of which Counterparty is a Defaulting Party or an Affected Party, as the case may be, and (ii) upon public announcement by Counterparty of any event that, if consummated, would constitute an Extraordinary Event or Potential Adjustment Event.
(e) Neither Counterparty nor any of its “affiliated purchasers” (as defined by Rule 10b-18 under the Exchange Act (“Rule 10b-18”)) shall take any action that would cause any purchases of Shares by Dealer or any of its Affiliates in connection with any Cash Settlement or Net Share Settlement of any Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 if such purchases were made by Counterparty. Without limiting the generality of the foregoing, during any Unwind Period for any Transaction, except with the prior written consent of Dealer, Counterparty will not, and will cause its affiliated purchasers (as defined in Rule 10b-18) not to, directly or indirectly (including, without limitation, by means of a derivative instrument) purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or announce or commence any tender offer relating to, any Shares (or equivalent interest, including a unit of beneficial interest in a trust or limited partnership or a depository share) or any security convertible into or exchangeable for the Shares. However, the foregoing shall not (i) limit Counterparty’s ability, pursuant to any equity compensation plan or dividend reinvestment program, to re-acquire Shares from employees in connection with such a plan or program, (ii) limit Counterparty’s ability to withhold shares to cover tax liabilities associated with such a plan or program, (iii) prohibit any purchases effected by or for an issuer “plan” by an “agent independent of the issuer” (each as defined in Rule 10b-18), (iv) otherwise restrict in any manner ordinary course transactions required or permitted under a Counterparty-sponsored qualified or non-qualified plan that holds employer securities and/or a Counterparty sponsored plan under which Shares are offered to Counterparty’s employees or non-employee directors, (v) otherwise restrict Counterparty’s or any of its affiliates’ ability to repurchase Shares under unsolicited transactions or privately negotiated, off-market transactions with any of its employees, officers, directors, affiliates or any third party that, in each case, are not reasonably expected to result in any market purchases or (vi) limit Counterparty’s ability to grant stock options, restricted shares, restricted stock units or performance share units, or issue Shares upon the exercise of such options or vesting of such units or the ability of “affiliated purchasers” (as defined in Rule 10b-18) to acquire such options, shares or units or acquire Shares upon the exercise of such options or vesting of such units, in each case, in connection with Counterparty’s equity compensation plans for directors, officers and employees or any agreements with respect to the compensation of directors, officers or employees of any entities that are acquisition targets of Counterparty, in
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the case of each of clauses (i) through (vi), to the extent that such transaction or event does not constitute a “Rule 10b-18 purchase” (as defined in Rule 10b-18). Counterparty shall be deemed to represent to Dealer that any purchase pursuant to one of the transactions or events described in the immediately preceding sentence does not constitute a “Rule 10b-18 purchase” (as defined in Rule 10b-18).
(f) Counterparty will not be subject to any “restricted period” (as such term is defined in Regulation M promulgated under the Exchange Act (“Regulation M”)) in respect of Shares or any security with respect to which the Shares are a “reference security” (as such term is defined in Regulation M) during any Unwind Period for any Transaction.
(g) Counterparty shall: (i) prior to the opening of trading in the Shares on any day on which Counterparty makes, or expects to be made, any public announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction, notify Dealer of such public announcement; (ii) promptly notify Dealer following any such announcement that such announcement has been made; (iii) promptly (but in any event prior to the next opening of the regular trading session on the Exchange) provide Dealer with written notice specifying (A) Counterparty’s average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full calendar months immediately preceding the announcement date for the Merger Transaction that were not effected through Dealer or its affiliates and (B) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the Exchange Act for the three full calendar months preceding such announcement date. Such written notice shall be deemed to be a certification by Counterparty to Dealer that such information is true and correct. In addition, Counterparty shall promptly notify Dealer of the earlier to occur of the completion of such transaction and the completion of the vote by target shareholders. Counterparty acknowledges that any such notice may result in a Regulatory Disruption, a Trading Condition or, if such notice relates to an event that is also an ISDA Event, an Early Valuation, or may affect the length of any ongoing Unwind Period. Accordingly, Counterparty acknowledges that its delivery of such notice must comply with the standards set forth in Section 6(c) above. “Merger Transaction” means any merger, acquisition or similar transaction involving a recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act. For the avoidance of doubt, a Merger Transaction or the announcement thereof shall not give either party the right to designate an Early Valuation Date for any Transaction and/or to accelerate or preclude an election by Counterparty of Physical Settlement for any Settlement of any Transaction, unless such Merger Transaction or the announcement thereof is also an ISDA Event.
(h) Counterparty will promptly execute each properly completed Supplemental Confirmation delivered to Counterparty by Dealer.
(i) Counterparty represents to Dealer that Dealer, solely in its capacity as Forward Purchaser or Forward Seller (each as defined in the Equity Distribution Agreement) and solely with respect to its entering into and consummating the transactions contemplated by this Master Confirmation and the Equity Distribution Agreement (including any Forward Contract thereunder) either (x) will not collectively with the other Forward Purchasers or Forward Sellers under the Alternative Distribution Agreements (as defined in the Equity Distribution Agreement) be a Person (as defined in Counterparty’s Restated Articles of Incorporation, as amended from time to time (the “Articles”)) by virtue of being a member of a “group” (as referenced in the definition of Person in the Articles) with such Forward Purchasers or Forward Sellers or both or (y) may, solely to the extent necessary to consummate the transactions contemplated by this Master Confirmation and the Equity Distribution Agreement (including any Forward Contract thereunder), Beneficially Own and Constructively Own Shares in excess of the Ownership Limit and the Related Tenant Limit (each as defined in the Articles).
7. Termination on Bankruptcy. The parties hereto agree that, notwithstanding anything to the contrary in the Agreement or the Equity Definitions, each Transaction constitutes a contract to issue a security of Counterparty as contemplated by Section 365(c)(2) of the Bankruptcy Code and that a Transaction and the obligations and rights of Counterparty and Dealer (except for any liability as a result of breach of any of the representations or warranties provided by Counterparty in Section 4 or Section 5 above) shall immediately terminate, without the necessity of any notice, payment (whether directly, by netting or otherwise) or other action by Counterparty or Dealer, if, on or prior to the final Settlement Date, Cash Settlement Payment Date or Net Share Settlement Date, as the case may be, for such Transaction an Insolvency Filing occurs or any other proceeding commences with respect to Counterparty under the Bankruptcy Code (a “Bankruptcy Termination Event”).
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8. Additional Provisions.
(a) Dealer acknowledges and agrees that Counterparty’s obligations under the Transactions are not secured by any collateral and that neither this Master Confirmation nor any Supplemental Confirmation is intended to convey to Dealer rights with respect to the transactions contemplated hereby and by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of Counterparty; provided that nothing herein shall limit or shall be deemed to limit Dealer’s right to pursue remedies in the event of a breach by Counterparty of its obligations and agreements with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement; provided further that nothing herein shall limit or shall be deemed to limit Dealer’s rights in respect of any transaction other than the Transactions.
(b) [Reserved].
(c) The parties hereto intend for:
(i) each Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(27), 362(o), 546(e), 546(j), 555 and 561 of the Bankruptcy Code;
(ii) the rights given to Dealer pursuant to “Early Valuation” in Section 2 above to constitute “contractual rights” to cause the liquidation of a “securities contract” and to set off mutual debts and claims in connection with a “securities contract”, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy Code;
(iii) any cash, securities or other property provided as performance assurance, credit support or collateral with respect to the Transactions to constitute “margin payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code;
(iv) all payments for, under or in connection with the Transactions, all payments for Shares and the transfer of Shares to constitute “settlement payments” and “transfers” under a “securities contract” as defined in the Bankruptcy Code; and
(v) any or all obligations that either party has with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement to constitute property held by or due from such party to margin, guaranty or settle obligations of the other party with respect to the transactions under the Agreement (including the Transactions) or any other agreement between such parties.
(d) Notwithstanding any other provision of the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event will Counterparty be required to deliver in the aggregate in respect of all Settlement Dates, Net Share Settlement Dates or other dates on which Shares are delivered in respect of any amount owed under any Transaction a number of Shares greater than two times the Number of Shares for such Transaction as of the Trade Date for such Transaction (the “Capped Number”). The Capped Number shall be subject to adjustment only on account of (x) Potential Adjustment Events of the type specified in (1) Sections 11.2(e)(i) through (vi) of the Equity Definitions or (2) Section 11.2(e)(vii) of the Equity Definitions so long as, in the case of this sub-clause (2), such event is within Issuer’s control and (y) Merger Events requiring corporate action of Issuer (or any surviving entity of the Issuer hereunder in connection with any such Merger Event). Counterparty represents and warrants to Dealer (which representation and warranty shall be deemed to be repeated for all Transactions on each day that any Transaction is outstanding) that the aggregate Capped Number across all Transactions hereunder is equal to or less than the number of authorized but unissued Shares that are not reserved for future issuance in connection with transactions in the Shares (other than the Transactions) on the date of the determination of such aggregated Capped Number. In the event Counterparty shall not have delivered the full number of Shares otherwise deliverable under any Transaction as a result of this Section 8(d) (the resulting deficit for such Transaction, the “Deficit Shares”), Counterparty shall be continually obligated to deliver Shares, from time to time until the full number of Deficit
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Shares have been delivered pursuant to this paragraph, on a pro rata basis across all Transactions hereunder, when, and to the extent that, (A) Shares are repurchased, acquired or otherwise received by Counterparty or any of its subsidiaries after the date hereof (whether or not in exchange for cash, fair value or any other consideration), (B) authorized and unissued Shares reserved for issuance in respect of other transactions prior to such date which prior to the relevant date become no longer so reserved or (C) Counterparty additionally authorizes any unissued Shares that are not reserved for transactions other than the Transactions (such events as set forth in clauses (A), (B) and (C) above, collectively, the “Share Issuance Events”). Counterparty shall promptly notify Dealer of the occurrence of any of the Share Issuance Events (including the number of Shares subject to clause (A), (B) or (C) and the corresponding number of Shares to be delivered for each Transaction) and, as promptly as reasonably practicable, deliver such Shares thereafter. Counterparty shall not, until Counterparty’s obligations under the Transactions have been satisfied in full, use any Shares that become available for potential delivery to Dealer as a result of any Share Issuance Event for the settlement or satisfaction of any transaction or obligation other than the Transactions or reserve any such Shares for future issuance for any purpose other than to satisfy Counterparty’s obligations to Dealer under the Transactions.
(e) The parties intend for this Master Confirmation and each Supplemental Confirmation to constitute a “Contract” as described in the letter dated October 6, 2003 submitted on behalf of Goldman, Sachs & Co. to Paula Dubberly of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretive letter dated October 9, 2003.
(f) The parties intend for each Transaction (taking into account purchases of Shares in connection with any Cash Settlement or Net Share Settlement of any Transaction) to comply with the requirements of Rule 10b5-1(c)(1)(i)(A) under the Exchange Act and for this Master Confirmation and each Supplemental Confirmation to constitute a binding contract or instruction satisfying the requirements of 10b5-1(c) and to be interpreted to comply with the requirements of Rule 10b5-1(c).
(g) [Reserved].
(h) Counterparty acknowledges that:
(i) during the term of the Transactions, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to establish, adjust or unwind its hedge position with respect to the Transactions;
(ii) Dealer and its affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with hedging activities in relation to the Transactions, including acting as agent or as principal and for its own account or on behalf of customers;
(iii) Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in Counterparty’s securities shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Forward Price and the Settlement Price for each Transaction;
(iv) any market activities of Dealer and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as well as the Forward Price and the Settlement Price for each Transaction, each in a manner that may be adverse to Counterparty; and
(v) each Transaction is a derivatives transaction; Dealer may purchase or sell shares for its own account at an average price that may be greater than, or less than, the price received by Counterparty under the terms of the relevant Transaction.
(i) Counterparty and Dealer agree and acknowledge that: (A) the Transactions contemplated by this Master Confirmation will be entered into in reliance on the fact that this Master Confirmation and each
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Supplemental Confirmation hereto form a single agreement between Counterparty and Dealer, and Dealer would not otherwise enter into such Transactions; (B) this Master Confirmation, together with each Supplemental Confirmation hereto, is a “qualified financial contract”, as such term is defined in Section 5-701(b)(2) of the General Obligations Law; (C) each Supplemental Confirmation hereto, regardless of whether transmitted electronically or otherwise, constitutes a “confirmation in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of the General Obligations Law; and (D) this Master Confirmation and each Supplemental Confirmation hereto constitute a prior “written contract”, as set forth in Section 5-701(b)(1)(b) of the General Obligations Law, and each party hereto intends and agrees to be bound by this Master Confirmation and such Supplemental Confirmation.
(j) Counterparty and Dealer agree that, upon the effectiveness of any Accepted Placement Notice relating to a Forward (as such term is defined in the Equity Distribution Agreement), in respect of the Transaction to which such Accepted Placement Notice relates, each of the representations, warranties, covenants, agreements and other provisions of this Master Confirmation and the Supplemental Confirmation for such Transaction (including, without limitation, Dealer’s right to designate an Early Valuation Date in respect of such Transaction pursuant to the provisions opposite the caption “Early Valuation” in Section 2 and the termination of such Transaction following a Bankruptcy Termination Event as described in Section 7) shall govern, and be applicable to, such Transaction as of the first Trading Day of the Forward Hedge Selling Period for such Transaction as if the Trade Date for such Transaction were such first Trading Day.
(k) Tax Matters.
(i) Payer Tax Representations. For the purpose of Section 3(e) of the Agreement, Dealer and Counterparty make the following representation:
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of the Agreement or amounts payable hereunder that may be considered to be interest for United States federal income tax purposes) to be made by it to the other party under the Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Sections 3(f) and 3(g) of the Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of the Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the Agreement and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of the Agreement, except that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not deliver a form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.
(ii) Payee Tax Representations. For the purpose of Section 3(f) of the Agreement, Dealer and Counterparty make the following representations:
| (a) | The following representations will apply to Dealer: |
| i. | Dealer is a national banking association organized or formed under the laws of the United States and is a United States resident for United States federal income tax purposes |
| (b) | The following representations will apply to Counterparty: |
| i. | Counterparty is a corporation for U.S. federal income tax purposes. |
| ii. | Counterparty is a “U.S. person” (as that term is used in section 7701(a)(30) of the U.S. Internal Revenue Code of 1986, as amended, and section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for U.S. federal income tax purposes and a corporation that is an exempt recipient under U.S. Treasury Regulation Section 1.6049-4(c)(1)(ii)(A). |
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(iii) Agreements to Deliver Documents. For the purpose of Section 4(a)(i) of the Agreement, Dealer and Counterparty each agrees to deliver, as applicable, (i) in the case of Dealer, a completed and accurate U.S. Internal Revenue Service Form W-9 (or successor thereto) and (ii) in the case of Counterparty, a complete and accurate U.S. Internal Revenue Service Form W-9 (or successor thereto), in each case (x) promptly upon execution of this Master Confirmation, (y) promptly upon reasonable demand by the other party and (z) promptly upon learning that any form previously provided has become obsolete or incorrect.
(iv) Change of Account. Section 2(b) of the Agreement is hereby amended by the addition of the following after the word “delivery” in the first line thereof: “to another account in the same legal and tax jurisdiction”.
(v) Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act. “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
(vi) HIRE Act. “Tax” and “Indemnifiable Tax”, each as defined in Section 14 of the Agreement, shall not include any tax imposed on payments treated as dividends from sources within the United States under Section 871(m) of the Code or any regulations issued thereunder.
(vii) In connection with entering into any Supplemental Confirmation, neither Counterparty nor any affiliate thereof will acquire any long position (either directly or indirectly, including through a derivative transaction) with respect to the Shares.
9. Indemnification. Counterparty agrees to indemnify and hold harmless Dealer, its affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all losses (excluding, for the avoidance of doubt, financial losses resulting from the economic terms of the Transactions), claims, damages and liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party arising out of, in connection with, or relating to, any breach of any covenant or representation made by Counterparty in this Master Confirmation, any Supplemental Confirmation or the Agreement. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a nonappealable judgment by a court of competent jurisdiction to have resulted from Dealer’s breach of any covenant or representation made by Dealer in this Master Confirmation, any Supplemental Confirmation or the Agreement or any willful misconduct, gross negligence or bad faith of any Indemnified Party. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Party for all reasonable expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim covered by this Section 9 or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Master Confirmation and any Supplemental Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from Dealer’s breach of any covenant or representation made by Dealer in this Master Confirmation, any Supplemental Confirmation or the Agreement or any gross negligence, willful misconduct or bad faith of the Indemnified Party. The provisions of this Section 9 shall survive the completion of the Transactions contemplated by this Master Confirmation and any Supplemental Confirmation and any assignment and/or delegation of the Transactions made pursuant to the Agreement, this Master Confirmation or any Supplemental Confirmation shall inure to the benefit of any permitted assignee of Dealer. For the avoidance of doubt, any payments due as a result of this provision may not be used to set off any obligation of Dealer upon settlement of the Transactions.
10. Beneficial Ownership. Notwithstanding anything to the contrary in the Agreement, this Master Confirmation or any Supplemental Confirmation, in no event shall Dealer be entitled to receive, or be deemed to receive, Shares to the extent that, upon such receipt of such Shares, (i) the “beneficial ownership” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) of Shares by Dealer, any of its affiliates’ business units subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) with Dealer with respect to “beneficial ownership” of any Shares (collectively, “Dealer Group”) would be equal to or greater than 4.5% of the outstanding Shares (such condition, an “Excess Section 13 Ownership Position”) or (ii) Dealer, Dealer Group or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under Sections 607.0901 and 607.0902 of the Florida Business Corporations Act or any state or federal bank holding company or banking laws, or any federal, state or local laws, regulations or regulatory orders applicable to ownership of Shares (“Applicable Laws”), would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess of a number of Shares equal to (x) the lesser of (A) the maximum number of Shares that would be permitted under Applicable Laws and (B) the number of Shares that would give rise to reporting or registration obligations or other requirements (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Laws and with respect to which such requirements have not been met or the relevant approval has not been received or that would give rise to any consequences under
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the constitutive documents of Counterparty (including, without limitation, Section 5.2 of the Articles or any contract or agreement to which Counterparty is a party), in each case minus (y) 1% of the number of Shares outstanding on the date of determination (such condition described in clause (ii), an “Excess Regulatory Ownership Position”). If any delivery owed to Dealer under any Transaction is not made, in whole or in part, as a result of this provision, (i) Counterparty’s obligation to make such delivery shall not be extinguished and Counterparty shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Dealer gives notice to Counterparty that such delivery would not result in (x) Dealer Group directly or indirectly so beneficially owning in excess of 4.5% of the outstanding Shares or (y) the occurrence of an Excess Regulatory Ownership Position and (ii) if such delivery relates to a Physical Settlement of any Transaction, notwithstanding anything to the contrary herein, Dealer shall not be obligated to satisfy the portion of its payment obligation with respect to such Transaction corresponding to any Shares required to be so delivered until the date Counterparty makes such delivery.
11. Non-Confidentiality. The parties hereby agree that (i) effective from the date of commencement of discussions concerning the Transactions, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transactions and all materials of any kind, including opinions or other tax analyses, provided by Dealer and its affiliates to Counterparty relating to such tax treatment and tax structure; provided that the foregoing does not constitute an authorization to disclose the identity of Dealer or its affiliates, agents or advisers, or, except to the extent relating to such tax structure or tax treatment, any specific pricing terms or commercial or financial information, and (ii) Dealer does not assert any claim of proprietary ownership in respect of any description contained herein or therein relating to the use of any entities, plans or arrangements to give rise to a particular United States federal income tax treatment for Counterparty.
12. Restricted Shares. If Counterparty is unable to comply with the covenant of Counterparty contained in Section 6 above or Dealer otherwise determines in its reasonable opinion that any Shares to be delivered to Dealer by Counterparty under any Transaction may not be freely returned by Dealer to securities lenders as described in the covenant of Counterparty contained in Section 6 above, then delivery of any such Settlement Shares (the “Unregistered Settlement Shares”) shall be effected pursuant to Annex A hereto, unless waived by Dealer.
13. Use of Shares. Dealer acknowledges and agrees that, except in the case of a Private Placement Settlement, Dealer shall use any Shares delivered by Counterparty to Dealer on any Settlement Date to return to securities lenders to close out borrowings created by Dealer (or an affiliate thereof) in connection with Dealer’s (or its affiliate’s) hedging activities related to exposure under the Transactions or otherwise in compliance with applicable law.
14. Rule 10b-18. In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction, Dealer shall use commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases and taking into account any applicable Securities and Exchange Commission no-action letters as appropriate, and subject to any delays between the execution and reporting of a trade of the Shares on the Exchange and other circumstances beyond Dealer’s control.
15. Governing Law. Notwithstanding anything to the contrary in the Agreement, the Agreement, this Master Confirmation, any Supplemental Confirmation and all matters arising in connection with the Agreement this Master Confirmation and any Supplemental Confirmation shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of laws doctrine other than Title 14 of Article 5 of the New York General Obligations Law).
16. Set-Off.
(a) The parties agree that upon the occurrence of an Event of Default or Termination Event with respect to a party who is the Defaulting Party or the Affected Party (“X”), the other party (“Y”) will have the right (but not be obliged) without prior notice to X or any other person to set-off or apply any obligation of X owed to Y (whether or not matured or contingent and whether or not arising under the Agreement, and regardless of the currency, place of
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payment or booking office of the obligation) against any obligation of Y owed to X (whether or not matured or contingent and whether or not arising under the Agreement, and regardless of the currency, place of payment or booking office of the obligation). Y will give notice to the other party of any set-off effected under this Section 16. Amounts (or the relevant portion of such amounts) subject to set-off may be converted by Y into the Termination Currency at the rate of exchange at which such party would be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency. If any obligation is unascertained, Y may in good faith estimate that obligation and set-off in respect of the estimate, subject to the relevant party accounting to the other when the obligation is ascertained. Nothing in this Section 16 shall be effective to create a charge or other security interest. This Section 16 shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
(b) Notwithstanding anything to the contrary in the foregoing, Dealer agrees not to set off or net amounts due from Counterparty with respect to any Transaction against amounts due from Dealer to Counterparty with respect to contracts or instruments that are not Equity Contracts. “Equity Contract” means any transaction or instrument that does not convey to Dealer rights, or the ability to assert claims, that are senior to the rights and claims of common stockholders in the event of Counterparty’s bankruptcy and would be classified as equity according to generally accepted accounting principles in the United States.
17. Staggered Settlement. Notwithstanding anything to the contrary herein, Dealer may, by prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on any date due (an “Original Delivery Date”) by making separate deliveries of Shares or such securities, as the case may be, at more than one time on or prior to such Original Delivery Date, so long as the aggregate number of Shares and other securities so delivered on or prior to such Original Delivery Date is equal to the number required to be delivered on such Original Delivery Date.
18. Waiver of Trial by Jury. EACH OF COUNTERPARTY AND DEALER HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTION OR THE ACTIONS OF DEALER OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
19. Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN CONNECTION WITH ALL MATTERS RELATING HERETO AND WAIVE ANY OBJECTION TO THE LAYING OF VENUE IN, AND ANY CLAIM OF INCONVENIENT FORUM WITH RESPECT TO, THESE COURTS. NOTHING IN THIS PROVISION SHALL PROHIBIT A PARTY FROM BRINGING AN ACTION TO ENFORCE A MONEY JUDGMENT IN ANY OTHER JURISDICTION.
20. Counterparts. This Master Confirmation may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Master Confirmation by signing and delivering one or more counterparts.
21. Delivery of Cash. For the avoidance of doubt, nothing in this Master Confirmation or any Supplemental Confirmation shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of the Transactions, except in circumstances where the required cash settlement thereof is permitted for classification of the contract as equity by ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity, as in effect on the Trade Date (including, for the avoidance of doubt, where Counterparty elects Cash Settlement). For the avoidance of doubt, the preceding sentence shall not be construed as limiting Section 9 hereunder or any damages that may be payable by Counterparty as a result of a breach of this Master Confirmation or any Supplemental Confirmation.
22. Adjustments. For the avoidance of doubt, whenever the Calculation Agent, the Hedging Party or the Determining Party is called upon to make an adjustment pursuant to the terms of this Master Confirmation, any Supplemental Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation
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Agent, the Hedging Party or the Determining Party, as applicable, shall make such adjustment in good faith and in a commercially reasonable manner by reference to the effect of such event on the Hedging Party, assuming that the Hedging Party maintains a commercially reasonable hedge position at the time of the event.
23. QFC Stay Rules. The parties agree that (i) to the extent that prior to the date hereof all parties have adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), the terms of the Protocol are incorporated into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a Protocol Covered Agreement and each party shall be deemed to have the same status as Regulated Entity and/or Adhering Party as applicable to it under the Protocol; (ii) to the extent that prior to the date hereof the parties have executed a separate agreement the effect of which is to amend the qualified financial contracts between them to conform with the requirements of the QFC Stay Rules (the “Bilateral Agreement”), the terms of the Bilateral Agreement are incorporated into and form a part of this Agreement and each party shall be deemed to have the status of “Covered Entity” or “Counterparty Entity” (or other similar term) as applicable to it under the Bilateral Agreement; or (iii) if clause (i) and clause (ii) do not apply, the terms of Section 1 and Section 2 and the related defined terms (together, the “Bilateral Terms”) of the form of bilateral template entitled “Full-Length Omnibus (for use between U.S. G-SIBs and Corporate Groups)” published by ISDA on November 2, 2018 (currently available on the 2018 ISDA U.S. Resolution Stay Protocol page at www.isda.org and, a copy of which is available upon request), the effect of which is to amend the qualified financial contracts between the parties thereto to conform with the requirements of the QFC Stay Rules, are hereby incorporated into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a “Covered Agreement,” Wells Fargo Bank, National Association shall be deemed “Covered Entities” and Counterparty shall be deemed a “Counterparty Entity.” In the event that, after the date of this Agreement, all parties hereto become adhering parties to the Protocol, the terms of the Protocol will replace the terms of this section. In the event of any inconsistencies between this Agreement and the terms of the Protocol, the Bilateral Agreement or the Bilateral Terms (each, the “QFC Stay Terms”), as applicable, the QFC Stay Terms will govern. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to “this Agreement” include any related credit enhancements entered into between the parties or provided by one to the other.
“QFC Stay Rules” means the regulations codified at 12 C.F.R. 252.2, 252.81–8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Dodd Frank Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements
24. Other Forward Transactions. Counterparty agrees that (x) it shall not cause to occur, or permit to exist, any Forward Hedge Selling Period at any time there is (1) a “Forward Hedge Selling Period” (or equivalent term) relating to any other issuer forward sale or similar transaction (including, without limitation, any “Transaction” under (as and defined under) any substantially identical master forward confirmation) with any financial institution other than Dealer (an “Other Forward Transaction”) or (2) any “Unwind Period” (or equivalent term) hereunder or under any Other Forward Transaction, and (y) Counterparty shall not cause to occur, or permit to exist, an Unwind Period at any time there is an “Unwind Period” (or equivalent term) under any Other Forward Transaction or a “Forward Hedge Selling Period” (or equivalent term) relating to any Transaction or any Other Forward Transaction.
25. Designation by Dealer. Notwithstanding any other provision of this Master Confirmation or any Supplemental Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities and otherwise to perform Dealer’s obligations in respect of any Transaction and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty only to the extent of any such performance.
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Master Confirmation and returning it to CorporateDerivativeNotifications@wellsfargo.com
| Yours faithfully, | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Thomas Yates | |
| Name: | Thomas Yates | |
| Title: | Managing Director | |
[Signature Page to Master Confirmation [WF]]
| Agreed and accepted by: | ||
| REGENCY CENTERS CORPORATION | ||
| By: | /s/ Lisa Palmer | |
| Name: | Lisa Palmer | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Master Confirmation [WF]]
ANNEX A
PRIVATE PLACEMENT PROCEDURES
If Counterparty delivers Unregistered Settlement Shares pursuant to Section 12 above (a “Private Placement Settlement”), then:
(a) all Unregistered Settlement Shares shall be delivered to Dealer (or any affiliate of Dealer designated by Dealer) pursuant to the exemption from the registration requirements of the Securities Act provided by Section 4(a)(2) thereof;
(b) as of or prior to the date of delivery, Dealer and any potential purchaser of any such shares from Dealer (or any affiliate of Dealer designated by Dealer) identified by Dealer shall be afforded a commercially reasonable opportunity to conduct a due diligence investigation with respect to Counterparty customary in scope for private placements of equity securities of similar size (including, without limitation, the right to have made available to them for inspection all financial and other records, pertinent corporate documents and other information reasonably requested by them); provided that prior to receiving or being granted access to any such information, Dealer, such affiliate of Dealer or such potential purchaser, as the case may be, may be required by Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any such due diligence investigation;
(c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private Placement Agreement”) with Dealer (or any affiliate of Dealer designated by Dealer) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), substantially similar to private placement purchase agreements customary for private placements of equity securities of similar size, in form and substance commercially reasonably satisfactory to Dealer, which Private Placement Agreement shall include, without limitation, provisions substantially similar to those contained in such private placement purchase agreements relating, without limitation, to the indemnification of, and contribution in connection with the liability of, Dealer and its affiliates and obligations to use best efforts to obtain customary opinions, accountants’ comfort letters and lawyers’ negative assurance letters, and shall provide for the payment by Counterparty of all commercially reasonable fees and expenses in connection with such resale, including all commercially reasonable fees and expenses of counsel for Dealer, and shall contain representations, warranties, covenants and agreements of Counterparty reasonably necessary or advisable to establish and maintain the availability of an exemption from the registration requirements of the Securities Act for such resales; and
(d) in connection with the private placement of such shares by Counterparty to Dealer (or any such affiliate) and the private resale of such shares by Dealer (or any such affiliate), Counterparty shall, if so requested by Dealer, prepare, in cooperation with Dealer, a private placement memorandum in form and substance reasonably satisfactory to Dealer.
In the case of a Private Placement Settlement, Dealer shall, in its good faith discretion, adjust the amount of Unregistered Settlement Shares to be delivered to Dealer hereunder in a commercially reasonable manner to reflect the fact that such Unregistered Settlement Shares may not be freely returned to securities lenders by Dealer and may only be saleable by Dealer at a discount to reflect the lack of liquidity in Unregistered Settlement Shares.
If Counterparty delivers any Unregistered Settlement Shares in respect of a Transaction, Counterparty agrees that (i) such Shares may be transferred by and among Dealer and its affiliates and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Counterparty shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Dealer (or such affiliate of Dealer) to Counterparty or such transfer agent of any seller’s and broker’s representation letters customarily delivered by Dealer or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities
Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Dealer (or such affiliate of Dealer).
SCHEDULE A
SUPPLEMENTAL CONFIRMATION
| To: |
Regency Centers Corporation | |
| From: |
Wells Fargo Bank, National Association | |
| Re: |
Issuer Share Forward Sale Transaction | |
| Date: |
[ ], 20[ ] | |
Ladies and Gentlemen:
The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the Transaction entered into between Wells Fargo Bank, National Association (“Dealer”) and Regency Centers Corporation (“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This Supplemental Confirmation is a binding contract between Dealer and Counterparty as of the relevant Trade Date for the Transaction referenced below.
1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master Confirmation dated as of May 8, 2020 (the “Master Confirmation”) between the Contracting Parties, as amended and supplemented from time to time. All provisions contained in the Master Confirmation govern this Supplemental Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows:
| Trade Date: | [ ], 20[ ] | |
| Effective Date: | [ ], 20[ ] | |
| Maturity Date: | [ ], 20[ ] | |
| Number of Shares: | [ ] | |
| Initial Forward Price: | USD [ ] | |
| Spread: | [ . ]% | |
| Volume-Weighted Hedge Price: | USD [ ] | |
| Threshold Price: | USD [ ] | |
| Initial Stock Loan Rate: | [ ] basis points per annum | |
| Maximum Stock Loan Rate: | [ ] basis points per annum | |
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Master Confirmation and returning it to CorporateDerivativeNotifications@wellsfargo.com
| Yours faithfully, | ||
| Wells Fargo Bank, National Association | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Agreed and accepted by: | ||
| REGENCY CENTERS CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Supplemental Confirmation [WF]]
Schedule I
FORWARD PRICE REDUCTION AMOUNTS
| Forward Price Reduction Date: |
Forward Price Reduction Amount: | |
| [ ], 20[ ] | USD[ ] | |
| [ ], 20[ ] | USD[ ] | |
| [ ], 20[ ] | USD[ ] | |
| ........ | ........ | |
| [ ], 20[ ] | USD[ ] |
REGULAR DIVIDEND AMOUNTS
| [For any calendar quarter ending on or prior to [December 31, 20[ ]] | USD[ ] | |
| quarter ending after [December 31, 20[ ]]: | USD[ ]] |
Exhibit 5.1
|
ATTORNEYS AT LAW
ONE INDEPENDENT DRIVE, SUITE 1300 JACKSONVILLE, FL 32202-5017 904.359.2000 TEL 904.359.8700 FAX WWW.FOLEY.COM
# |
May 8, 2020
Regency Centers Corporation
One Independent Dr. - Suite 114
Jacksonville, FL 32202
Ladies and Gentlemen:
This opinion is being furnished in connection with the combined Registration Statement on Form S-3 (Registration Nos. 237145 and 333-237145-01) of Regency Centers Corporation (“Regency”) and Regency Centers, L.P. (“RCLP”) under the Securities Act of 1933, as amended, for the issuance and sale, from time to time, of up to $500,000,000 aggregate offering price of shares of common stock, par value $0.01 per share (the “Shares”), of Regency, all of which are authorized but heretofore unissued shares to be offered and sold by Regency. The Shares are to be issued pursuant to (i) those certain Equity Distribution Agreements as amended and as in effect as of the date hereof by and among Regency, RCLP and each of (1) Wells Fargo Bank, National Association and Wells Fargo Securities, LLC, (2) JPMorgan Chase Bank, National Association and J.P. Morgan Securities LLC, (3) Jefferies LLC, (4) SunTrust Robinson Humphrey, Inc., (5) BTIG, LLC, (6) Bank of America, N.A. and BofA Securities, Inc., (7) Mizuho Markets Americas LLC and Mizuho Securities USA LLC, (8) SMBC Nikko Securities America, Inc., (9) The Toronto-Dominion Bank and TD Securities (USA) LLC, (10) Bank of Montreal and BMO Capital Markets Corp., (11) Regions Securities LLC and (12) The Bank of Nova Scotia and Scotia Capital (USA) Inc. (collectively, the “Equity Distribution Agreements”), and (ii) those certain Master Confirmations for forward sale transactions as amended and as in effect as of the date hereof by and between Regency and each of (1) Wells Fargo Bank, National Association, (2) JPMorgan Chase Bank, National Association, (3) Bank of America, N.A., (4) Mizuho Markets Americas LLC, (5) The Toronto-Dominion Bank, (6) Bank of Montreal, (7) Jefferies LLC and (8) The Bank of Nova Scotia (collectively, the “Forward Master Confirmations”).
In connection with the issuance and sale of such securities, we have examined and are familiar with: (a) the articles of incorporation and bylaws of Regency, as presently in effect, (b) the proceedings of and actions taken by the Board of Directors of Regency (the “Resolutions”), (c) the Equity Distribution Agreements, (d) the Forward Master Confirmations, and (e) such other records, certificates and documents as we have considered necessary or appropriate for purposes of this opinion.
Based on the documents and proceedings set forth above, we are of the opinion that the issuance of the Shares has been duly authorized and, when duly issued and delivered by Regency in accordance with the terms of the Equity Distribution Agreements and the Forward Master Confirmations (and related supplemental confirmations), as applicable, against payment therefor (or, in the case of the Forward Master Confirmations (and related supplemental confirmations), in net share settlement thereof), in accordance with the Resolutions and the terms of the Equity Distribution Agreements and the Forward Master Confirmations (and related supplemental confirmations), as applicable, the Shares will be validly issued, fully paid and nonassessable.
May 8, 2020
Page 2
The foregoing opinion is limited to the laws of the state of Florida. We assume no obligation to supplement this opinion letter if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinions expressed herein after the date hereof.
In rendering this opinion we have assumed, without investigation, verification or inquiry, that there is no oral or written agreement, understanding, course of dealing or usage of trade that would have an effect on the opinions expressed herein.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 in said Registration Statement and to the reference to this firm under the caption “Validity of Securities” in the prospectus supplement relating to the offering of the Shares dated May 8, 2020. In giving this consent we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ FOLEY & LARDNER LLP
FOLEY & LARDNER LLP