Exhibit 45
EXECUTION VERSION
SUPPLEMENTAL SECURITIES LOAN AGREEMENT
AGREEMENT dated as of June 24, 2003 between CITIGROUP GLOBAL MARKETS
INC., a broker-dealer registered pursuant to the Securities Exchange Act of
1934, as borrower ("Borrower"), SECURITY CAPITAL SHOPPING MALL BUSINESS TRUST, a
Maryland real estate investment trust, as lender ("Lender") and UBS SECURITIES
LLC ("UBS"), a dealer registered pursuant to the Securities Exchange Act of
1934, as agent for the Lender. This Supplemental Agreement supplements and
amends the Securities Lending Agency Client Agreement dated as of June 17, 2003
(the "Client Agreement") between Lender and UBS and the Securities Loan
Agreement dated as of July 26, 1998 (the "Agency Securities Loan Agreement")
between UBS and Borrower (originally entered into by their respective
predecessors, PaineWebber Incorporated and Xxxxx Xxxxxx Inc.) with respect to
the loan of securities referred to below.
The parties hereto agree as follows:
1. LOANS OF REGENCY CENTERS CORPORATION COMMON STOCK
1.1 Subject to the terms and conditions of this Agreement and the
Agency Securities Loan Agreement and the Client Agreement, if after reasonable
efforts the Borrower is unable to borrow, on terms reasonably acceptable to
Borrower, shares of the Common Stock of Regency Centers Corporation ("Regency
Shares") from lenders reasonably acceptable to Borrower available in the market,
the Borrower may orally initiate a transaction whereby UBS, as agent for Lender,
may lend to Borrower, who along with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Wachovia Bank, National Association and JPMorgan Chase Bank, shall
be the sole Eligible Borrowers with respect to the Regency Shares under the
Client Agreement, up to 1,500,000 Regency Shares for Borrower, which are
fully-paid or which constitute excess margin shares owned by Lender. Each such
loan shall be on the terms and conditions contained in the Agency Securities
Loan Agreement, as supplemented by this Agreement. Terms not defined herein
shall have the meanings ascribed to them in the Agency Securities Loan Agreement
and in the Client Agreement as in existence on the date hereof, as amended by
this Agreement.
2. FEE FOR LOAN.
2.1 Unless otherwise agreed, (a) the Loan Fee under Section 4.1 of the
Agency Securities Loan Agreement shall be at the rate of 20 basis points (0.20%)
per annum, computed daily on the basis of a 360-day year, and (b) the Cash
Collateral Fee under Section 4.2 of the Agency Securities Loan Agreement shall
be as displayed on the page FEDS OPEN [Index] [GO] on the BLOOMBERG Professional
Service or any successor page available on Bloomberg for determining such rate
or such other source for the US dollar Federal Funds rate designated by Borrower
and Lender.
3. TERMINATION OF THE LOAN.
3.1 Borrower may terminate a Loan on any Business Day by giving notice
to Lender and UBS and transferring the Loaned Securities to UBS before the close
of business of Borrower on such Business Day.
3.2 UBS, as agent for Lender, may terminate a Loan on a termination
date established by notice given to Borrower prior to the close of business on a
Business Day. The termination date established by a termination notice given by
UBS to Borrower shall be a date no earlier than the standard settlement date for
trades of the Loaned Securities entered into on the date of such notice, which
date shall, unless Borrower, Lender and UBS agree to the contrary, be the third
Business Day following such notice.
4. RIGHTS OF BORROWER IN RESPECT OF THE LOANED SHARES.
4.1 The rights of Borrower in respect of Loaned Securities under
Section 6 of the Agency Securities Loan Agreement are limited to the extent that
Borrower shall not have any incidents of ownership or take any action with
respect to the Loaned Securities that would cause any Loaned Securities to
become "Excess Shares" under the articles of incorporation of Regency Centers
Corporation; PROVIDED, HOWEVER, that, to the extent required to prevent any
Loaned Securities to become "Excess Shares", Borrower shall have the right, upon
written consent of the Lender (which consent shall not be unreasonably withheld)
to assign its obligations under this Agreement to any entity with a credit
rating of AA- or above or to an affiliate of the Borrower without the prior
consent of the Lender; provided further, that the Borrower may not make any such
assignment if, immediately after giving effect to the proposed assignment, there
would be a Default or potential Default of the Borrower or such proposed
assignee under the Agency Securities Loan Agreement or this Agreement.
5. XXXX TO MARKET MARGIN.
5.1 For purposes of Section 8 of the Agency Securities Loan Agreement
and Sections 3(a) and 3(b) of the Client Agreement, the Required Value and the
Required Collateral Level shall be 102% of the Market Value of the Loaned
Securities, and shall be valued on an Account-by-Account basis as contemplated
by Section 8.4 of the Agency Securities Loan Agreement. Without the prior
written consent of Borrower, Lender will not permit the collateral to be held
other than in Lender's Client Account at UBS. Collateral shall consist only of
cash and shall be invested as specified by Lender and Borrower.
6. FORWARD SALE AGREEMENT.
6.1 Notwithstanding anything in the Agency Securities Loan Agreement
and this Agreement to the contrary, if Physical Settlement (as defined in the
Confirmation dated June 24, 2003 governed by a Master Terms and Conditions for
Forward Transactions between Lender and Citibank, N.A., dated as of June 18,
2003) applies under the
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Confirmation, Lender authorizes Borrower, to the extent that Citibank, N.A.
concurrently tenders payment as required thereunder, to deliver the Regency
Shares that Lender is then entitled to receive from Borrower under the Agency
Securities Loan Agreement and this Agreement to satisfy the delivery obligation
of Lender under the Confirmation with respect to that number of Regency Shares.
In such event, Lender shall return the Collateral to Borrower upon receipt of
payment by Citibank, N.A. under the Confirmation.
7. APPLICABLE LAW.
7.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed wholly within such state, without reference to its conflicts of laws
principles or rules.
8. REPRESENTATION OF THE LENDER.
8.1 Lender hereby represents and warrants to Borrower that the
representations and warranties of Lender contained in Section 4(a) of the Client
Agreement are true and correct as of the date hereof (provided that Section
4(a)(iii) is subject to the rights of Citibank, N.A. under the Confirmation) and
shall be deemed made and repeated for all purposes at and as of all times when
any Loan entered into under the Agency Securities Loan Agreement is outstanding.
9. TERMINATION.
9.1 Lender and UBS agree that they will not terminate the Client
Agreement prior to the Settlement Date under the Confirmation (or, if Cash
Settlement applies thereunder, the last Cash Settlement Payment Date) without
the prior written consent of Borrower.
10. DEFAULT.
10.1 In the event of any default by Borrower under any Loan, UBS shall
take action only in accordance with express instructions from Lender, Section
3(f) of the Client Agreement to the contrary notwithstanding.
11. COMPENSATION OF UBS.
11.1 The compensation of UBS under the Client Agreement shall be paid
by Lender and UBS is not authorized to collect any compensation from the
principal of the Collateral or that would affect the Cash Collateral Fee payable
to Borrower.
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CITIGROUP GLOBAL MARKETS INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X.
Authorized Signatory
SECURITY CAPITAL SHOPPING MALL BUSINESS
TRUST
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director
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GUARANTY
GUARANTY (the "Guaranty"), dated as of June 24, 2003 by GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("GE Capital") in favor of
CITIGROUP GLOBAL MARKETS INC. (the "Counterparty").
RECITALS
WHEREAS, UBS Securities LLC ("UBS") and Security Capital Shopping Mall
Business Trust, a Maryland real estate investment trust (the "Lender") have
entered into a Securities Lending Agency Client Agreement, dated as of June 17,
2003 (the "Client Agreement"), UBS and Counterparty have entered into a
Securities Loan Agreement dated as of July 26, 1998 (the "Agency Securities Loan
Agreement") (originally entered into by their respective predecessors,
PaineWebber Incorporated and Xxxxx Xxxxxx Inc.) and UBS, Lender and Counterparty
have entered into a Supplemental Securities Loan Agreement (the "Supplemental
Agreement") providing, among other things, for the Lender to lend to
Counterparty certain securities against a pledge of collateral (the
"Transactions");
WHEREAS, the Counterparty has requested GE Capital, as the parent of
the Lender, to provide a guaranty to the Counterparty on the terms and
conditions hereinafter provided; and
WHEREAS, GE Capital is willing to enter into this Guaranty to induce
the Counterparty to enter into the Transactions with the Lender;
NOW, THEREFORE, GE Capital hereby agrees:
Section 1. GUARANTY BY GE CAPITAL.
(a) From and after the date hereof, GE Capital hereby
irrevocably and unconditionally guarantees the due and punctual payment
of all amounts payable by the Lender and UBS, as its agent, to the
Counterparty in connection with the Transactions pursuant to the terms
of the Agency Securities Loan Agreement and the Supplemental Agreement
when the same shall become due and payable, whether on scheduled
payment dates or otherwise, in each case after any applicable grace
periods or notice requirements; provided, however, that GE Capital
shall not be liable to make any payment until two Business Days (as
used herein, a "Business Day" shall refer to a day other than a
Saturday or a Sunday on which commercial banks are open for business in
the City of New York, United States of America) following receipt by GE
Capital of written notice from the Counterparty that a payment is due
thereunder (the "Notice Requirement"). GE Capital hereby agrees that
its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Agency Securities Loan
Agreement or the Supplemental Agreement; any change in or amendment
thereto, the absence of any action to enforce the same, any waiver or
consent by the Counterparty with respect
to any provision thereof; the recovery of any judgment against the
Lender or any action to enforce the same; or any other circumstances
which may otherwise constitute a legal or equitable discharge or
defense of a guarantor; provided, however, that nothing contained
herein shall be constituted to be a waiver by GE Capital of the Notice
Requirement with respect to the Agency Securities Loan Agreement or the
Supplemental Agreement and the obligations evidenced thereby or hereby.
GE Capital covenants that this Guaranty will not be discharged except
by complete performance of the obligations contained in the Agency
Securities Loan Agreement, in the Supplemental Agreement and in this
Guaranty.
(b) GE Capital shall be subrogated to all rights of the
Counterparty in respect of any amounts paid by GE Capital pursuant to
the provisions of this Guaranty; provided, however, that GE Capital
shall be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation with respect to any
Transaction only after the payment of all amounts owed by the Lender to
the Counterparty with respect to such Transaction have been paid in
full.
(c) This Guaranty shall continue to be effective or
reinstated, as the case may be, if at any time any payment made by the
Lender to the Counterparty with respect to a Transaction or pursuant to
the terms of the Agency Securities Loan Agreement and in the
Supplemental Agreement is rescinded or must otherwise be returned by
the Counterparty upon the insolvency, bankruptcy or reorganization by
GE Capital, the Lender or otherwise, all as though such payment had not
been made.
Section 2. MISCELLANEOUS.
(a) NOTICES. All notices to GE Capital under this Guaranty and
copies of all notices of payment failure or other breaches by UBS or
the Lender of the Client Agreement or the Agency Securities Loan
Agreement shall, until GE Capital furnishes written notice to the
contrary, be mailed or delivered to GE Capital at 000 Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000-0000, and directed to the attention of the
Senior Vice President-Corporate Treasury and Global Funding Operation
of GE Capital.
(b) GOVERNING LAW. This Guaranty shall be construed and
enforced in accordance with, and governed by, the laws of the State of
New York, United States of America. GE Capital hereby irrevocably
consents to, for the purposes of any proceeding arising out of this
Guaranty, the exclusive jurisdiction of the courts of the State of New
York and the United States District Court located in the borough of
Manhattan in New York City.
(c) INTERPRETATION. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and
shall not be deemed to constitute a part hereof.
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(d) ATTORNEY'S COST. GE Capital agrees to pay all reasonable
attorney's fees and disbursements and all other reasonable and actual
costs and expenses which may be incurred by the Counterparty in the
enforcement of this Guaranty of the Agency Securities Loan Agreement
and the Supplemental Agreement.
(e) NO SET-OFF. The Counterparty shall be deemed to have
waived any right to set-off, combine, consolidate, or otherwise
appropriate and apply, any indebtedness at any time held or owing by
the Counterparty against, or on account of, any obligations or
liabilities of GE Capital under this Guaranty. In addition, GE Capital
agrees to waive any right to set-off, combine, consolidate, or
otherwise appropriate and apply any obligations or liabilities of GE
Capital under this Guaranty against, or on account of, any indebtedness
at any time held or owing by the Counterparty.
(f) CURRENCY OF PAYMENT. Any payment to be made by GE Capital
shall be made in the same currency as designated for payment in the
Agency Securities Loan Agreement and the Supplemental Agreement and
such designation of the currency of payment is of the essence.
(g) TRANSFER. Neither this Guaranty nor any interest or
obligation in or under this Guaranty may be transferred (whether by way
of security or otherwise) by GE Capital or the Counterparty without the
prior written consent of the other, except that the Counterparty may,
without the consent of GE Capital, transfer its interest in this
Guaranty to any person or entity to which any interest or obligation in
or under the Agency Securities Loan Agreement or the Supplemental
Agreement or any Transaction is transferred in a manner that is not
inconsistent with the Agency Securities Loan Agreement or the
Supplemental Agreement.
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Vice President
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ACKNOWLEDGEMENT AND AGREEMENT
CITIGROUP GLOBAL MARKETS INC. HEREBY ACKNOWLEDGES AND CONSENTS TO THE PROVISIONS
OF THE FOREGOING GUARANTY.
CITIGROUP GLOBAL MARKETS INC.
By: ----------------------------
Title:
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