Exhibit 4.1
SUBSCRIPTION AGREEMENT
by and among
REGENCY REALTY CORPORATION
SECURITY CAPITAL HOLDINGS S.A.
and
SECURITY CAPITAL U.S. REALTY
dated as of
August 6, 1997
TABLE OF CONTENTS
SECTION PAGE
1. SUBSCRIPTION; CLOSING....................... 2
1.1 Subscription for Company Common Stock....... 2
1.2 Acceptance of Subscription.................. 2
1.3 Purchase Price.............................. 2
1.4 Closing..................................... 2
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..... 3
2.1 Organization and Qualification.............. 3
2.2 Authority Relative to the Agreement;
Board Approval............................ 3
2.3 Capital Stock............................... 4
2.4 No Conflicts; No Defaults; Required Filings
and Consents.............................. 4
2.5 Securities Law Matters; Material Changes;
Corporate Action Covenants................ 5
2.6 Litigation; Compliance With Law............. 6
2.7 Tax Matters; REIT and Partnership Status.... 7
2.8 Compliance with Organization Documents...... 7
2.9 Florida Takeover Law........................ 7
2.10 Brokers or Finders.......................... 7
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER
AND THE ADVANCING PARTY......................... 8
3.1 Organization and Standing................... 8
3.2 Due Authorization........................... 8
3.3 Conflicting Agreements and Other Matters.... 8
3.4 Source of Funds............................. 9
3.5 Brokers or Finders.......................... 9
3.6 REIT Qualification Matters.................. 9
3.7 Investment Company Matters.................. 9
4. CONDITIONS TO CLOSING............................. 9
4.1 Conditions to Obligations of Subscriber... 9
4.2 Conditions to Obligations of the Company.. 10
5. SURVIVAL; INDEMNIFICATION......................... 11
5.1 Survival.................................... 11
5.2 Indemnification by Subscriber or the
Company..................................... 11
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6. MISCELLANEOUS..................................... 12
6.1 Counterparts................................ 12
6.2 Governing Law............................... 13
6.3 Entire Agreement............................ 13
6.4 Notices..................................... 13
6.8 Expenses.................................... 15
6.9 Severability................................ 15
6.10 Further Assurances.......................... 15
6.11 Joint and Several Liability; Guaranty....... 15
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SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") is entered
into as of August 6, 1997 by and among Regency Realty
Corporation, a Florida corporation (the "Company"), Security
Capital U.S. Realty, a Luxembourg corporation (the "Advancing
Party"), and Security Capital Holdings S.A., a Luxembourg
corporation and a wholly-owned subsidiary of the Advancing
Party ("Subscriber" or "Investor"). Capitalized terms not
otherwise defined herein have the meanings ascribed to them in
the Stockholders Agreement (as hereinafter defined).
WHEREAS, in connection with the Company's initial issuance
and sale to Subscriber of shares of the Company's common stock,
par value $0.01 per share (the "Company Common Stock"),
pursuant to a Stock Purchase Agreement dated as of June 11,
1996, the Company, the Advancing Party and Subscriber entered
into a Stockholders Agreement on July 10, 1996 (the
"Stockholders Agreement");
WHEREAS, pursuant to the terms of the Stockholders
Agreement, in the event that the Company issues or sells shares
of capital stock of the Company, Investor is, during a
specified term, entitled (except in certain limited
circumstances) to a participation right to purchase, or
subscribe for, a total number of shares equal to up to 42.5% of
the total number of shares of capital stock proposed to be
issued by the Company in its first offering after the final
closing under the above-referenced Stock Purchase Agreement
(the "Participation Rights");
WHEREAS, on July 10, 1997, the Company entered into an
underwriting agreement for the offer and sale in a public
offering of 2,777,250 shares of Company Common Stock (the
"Total Public Shares"), including 362,250 shares subject to an
over-allotment option (the "Option Shares");
WHEREAS, on July 16, 1997, the Company issued and sold in
a public offering (the "Original Public Offering") 2,415,000
shares of Company Common Stock (the "Original Public Shares"),
which represented all of the Total Public Shares other than the
Option Shares;
WHEREAS, concurrently therewith, Investor, in exercise of
its Participation Rights with respect to the Original Public
Shares (but not with respect to the Option Shares), purchased
from the Company, and the Company issued and sold to Investor,
1,785,000 shares of Company Common Stock (the "Original
Concurrent Shares") pursuant to that certain Subscription
Agreement dated as of July 10, 1997 by and among the parties
hereto;
WHEREAS, the underwriters, in full exercise of their over-
allotment option, has elected to purchase an additional 129,800
shares of Company Common Stock (the "Public Shares");
WHEREAS, in connection with the Public Shares to be issued
by the Company in a public offering (the "Public Offering"),
Investor is entitled to, and has indicated to the Company that
it desires to, exercise its Participation Rights; and
WHEREAS, in accordance with Investor's desire to exercise
its Participation Rights, the Company desires to issue and sell
to Subscriber shares of Company Common Stock in an offering
(the "Concurrent Purchase") from the Company to Subscriber.
NOW, THEREFORE, in consideration of the foregoing and of
the mutual covenants and agreements hereinafter set forth, the
parties hereto hereby agree as follows:
1. SUBSCRIPTION; CLOSING
1.1 SUBSCRIPTION FOR COMPANY COMMON STOCK
(a) Subject to the terms and conditions hereof,
Subscriber hereby subscribes (the "Subscription") to purchase
95,939 shares of Company Common Stock (the "Concurrent
Shares").
(b) Investor hereby agrees that the
Subscription represents the complete and exclusive exercise of
its Participation Rights with regard to the Public Shares.
1.2 ACCEPTANCE OF SUBSCRIPTION
Subject to the terms and conditions hereof, the
Company hereby accepts the Subscription.
1.3 PURCHASE PRICE
The per share purchase price (the "Per Share
Purchase Price") for the Concurrent Shares shall be $27.25 for
an aggregate purchase price of $2,614,337.75 (the "Purchase
Price"). The Per Share Purchase Price shall be the same as the
per share "Price to Public" for the Public Shares, as shown on
the cover page of the final prospectus for the Original Public
Offering.
1.4 CLOSING
Subject to the terms and conditions hereof, the
closing of the Concurrent Purchase (the "Closing") shall occur
on the date of the closing of the Public Offering but in no
event later than five business days after the date of this
Agreement. At the Closing, the Company will sell, convey,
assign, transfer and deliver, and Subscriber will purchase and
acquire (and the Advancing Party shall advance sufficient funds
for such purchase) from the Company, the Concurrent Shares, and
Subscriber will pay to the Company the Purchase Price by wire
transfer of immediately-available funds in U. S. dollars to the
account or accounts specified by the Company.
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2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Subscriber
as follows:
2.1 ORGANIZATION AND QUALIFICATION
(a) The Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Florida. The Company has all requisite corporate
power and authority to own, operate, lease and encumber its
properties and carry on its business as described in the
Company Prospectus (as hereinafter defined), and to enter into
this Agreement and to perform its obligations hereunder.
(b) Each of the Subsidiaries of the Company is a
corporation, partnership or limited liability company duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, and
has the corporate or partnership power and authority to own its
properties and carry on its business as it is now being
conducted.
(c) Each of the Company and its Subsidiaries is duly
qualified to do business and in good standing in each
jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification, except for
any failures to be so qualified or to be in good standing as
would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(d) The issue and sale of the Concurrent Shares
hereunder will not give any stockholder of the Company the
right to demand payment for his shares under the Florida
Business Corporation Act.
2.2 AUTHORITY RELATIVE TO THE AGREEMENT; BOARD APPROVAL
(a) The execution, delivery and performance of this
Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company
for itself and constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to
creditors' rights or general principles of equity.
(b) The Board of Directors of the Company has, as of
the date hereof, approved the transactions contemplated hereby.
(c) The Concurrent Shares have been duly authorized
for issuance, and upon issuance will be duly and validly
issued, fully paid and nonassessable.
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2.3 CAPITAL STOCK
All of the issued, and outstanding shares of capital
stock of the Company are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights (excluding
any preemptive rights that Investor may have under the
Stockholders Agreement).
2.4 NO CONFLICTS; NO DEFAULTS; REQUIRED FILINGS AND
CONSENTS
Neither the execution and delivery by the Company
hereof nor the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof, will:
(a) conflict with or result in a breach of any
provisions of the Company Charter or Bylaws of the Company;
(b) result in a breach or violation of, a default
under, or the triggering of any payment or other obligations
pursuant to, or accelerate vesting under, any of the Company
stock option plans or similar compensation plan or any grant or
award made under any of the foregoing, except as would not,
individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect;
(c) violate or conflict with any statute,
regulation, judgment, order, writ, decree or injunction
applicable to the Company, except as would not, individually or
in the aggregate, reasonably be expected to result in a
Material Adverse Effect;
(d) violate or conflict with or result in a breach
of any provision of, or constitute a default (or any event
which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance
required by, or result in the creation of any Lien upon any of
the properties of the Company under, or result in being
declared void, voidable or without further binding effect, any
of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise,
permit, lease, contract, agreement or other instrument,
commitment or obligation to which the Company is a party, or by
which the Company or any of its properties is bound or
affected, except for any of the foregoing matters which would
not reasonably be expected to, individually or in the
aggregate, result in a Material Adverse Effect; or
(e) require any consent, approval or authorization
of, or declaration, filing or registration with any
Governmental Authority, other than any filings required under
the Securities Act, the Exchange Act, Blue Sky Laws and any
filings required to be made with any national securities
exchange on which the Company Common Stock
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is listed, except as would not, individually or in the
aggregate, reasonably be expected to result in a Material
Adverse Effect.
2.5 SECURITIES LAW MATTERS; MATERIAL CHANGES; CORPORATE
ACTION COVENANTS
(a) As of the date hereof and as of the date of the
Closing, the Company Prospectus does not and will not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The documents incorporated or deemed to be
incorporated by reference in the Company Prospectus pursuant to
Item 12 of Form S-3 under the Securities Act, at the time they
were or hereafter are filed with the SEC, complied and will
comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC under the
Exchange Act, and, when read together with the other
information in the Company Prospectus, as of the date hereof
and as of the date of the Closing, did not and 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, in the light of the circumstances
under which they were made, not misleading.
(c) Since the respective dates as of which
information is given in the Company Prospectus, except as
otherwise stated there, (A) there has been no change in the
condition, financial, or otherwise, or in the earnings, assets
or business affairs of the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, except as would not reasonably be
expected to, individually or in the aggregate, result in a
Material Adverse Effect, (B) no casualty loss or condemnation
or other event with respect to any of the interests held
directly or indirectly in any of the real properties owned,
directly or indirectly, by the Company or any entity wholly or
partially owned by the Company has occurred, except as would
not reasonably be expected to, individually or in the
aggregate, result in a material Adverse Effect, (C) except for
regular quarterly dividends on the Common Stock and
distributions with respect to the Units in amounts per share or
Unit that are, in each case, consistent with past practice,
there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
capital stock or by the Partnership with respect to its Units,
and (D) with the exception of transactions in connection with
the Company's Long-Term Omnibus Plan and the issuance of shares
of Common Stock upon the exchange of Units of the Partnership,
there has been no change in the capital stock or in the
partnership interests, as the case may be, of the Company or
any Subsidiary, and no increase in the indebtedness of the
Company or any Subsidiary, that is material to such entities
considered as one enterprise.
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(d) The financial statements (including the notes
thereto) included in, or incorporated by reference into, the
Company Prospectus present fairly the financial position of the
respective entity or entities presented therein at the
respective dates indicated (if such financial position is
presented) and the results of their operations for the
respective periods specified and, except as otherwise stated in
the Company Prospectus, said financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis.
(e) As of the date hereof, the Company and its
Subsidiaries have complied in all material respects with the
Corporate Action Covenants set forth in Section
6.1 of the Stockholders Agreement.
(f) For purposes hereof, the terms listed below
shall have the following meanings:
"Company Prospectus" shall mean, collectively,
the Prospectus dated July 10, 1997 and the Prospectus
Supplement dated July 10, 1997 relating to the Original
Concurrent Shares and the Concurrent Shares and the
Prospectus Supplement dated July 10, 1997 relating to the
Original Public Shares and the Public Shares.
"Partnership" shall mean Regency Retail
Partnership, L.P., a Delaware limited partnership.
"Units" shall mean units of partnership interest
in the Partnership.
2.6 LITIGATION; COMPLIANCE WITH LAW
(a) There are no Actions pending or, to the
Company's knowledge, threatened against the Company or any of
its Subsidiaries that would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect,
or which question the validity hereof or any action taken or to
be taken in connection herewith. There are no continuing
orders, injunctions or decrees of any Government Authority to
which the Company or any of its Subsidiaries is a party or by
which any of its properties or assets are bound.
(b) None of the Company or its Subsidiaries is in
violation of any statute, rule, regulation, order, writ, decree
or injunction of any Government Authority or any body having
jurisdiction over them or any of their respective properties
which, if enforced, would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
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2.7 TAX MATTERS; REIT AND PARTNERSHIP STATUS
(a) The Company (i) intends in its federal income
tax return for the tax year ended on December 31, 1996, and in
its federal income tax return for the tax year that will end on
December 31, 1997, to elect to be taxed as a REIT within the
meaning of Section 856 of the Code, and has complied (or will
comply) with all applicable provisions of the Code relating to
a REIT for 1997, (ii) has operated, and intends to continue to
operate, in such a manner as to qualify as a REIT for 1997,
(iii) has not taken or omitted to take any action which would
reasonably be expected to result in a challenge to its status
as a REIT, and, to the Company's knowledge, no such challenge
is pending or threatened, and (iv) to the Company's knowledge,
and assuming the accuracy of Subscriber's representation in
Section 3.7, will not be rendered unable to qualify as a REIT
for federal income tax purposes as a consequence of the
transactions contemplated hereby.
(b) The Company was eligible to and did validly
elect to be taxed as a REIT for federal income tax purposes for
calendar years 1993, 1994, and 1995. Each Partnership and each
subsidiary of the Company organized as a partnership (and any
other subsidiary of the Company that files tax returns as a
partnership for federal income tax purposes) was and continues
to be classified as a partnership for federal income tax
purposes.
(c) For purposes of this Section 2.7, no
representation set forth in Section 2.7 shall be deemed to be
untrue unless such untruths would, individually or in the
aggregate, be reasonably expected to result in a Material
Adverse Effect.
2.8 COMPLIANCE WITH ORGANIZATION DOCUMENTS
Neither the Company nor any of its Subsidiaries is in
default under or in violation of any provision of its charter,
bylaws or partnership agreement (or equivalent organizational
documents), except for such defaults or violations which would
not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
2.9 FLORIDA TAKEOVER LAW
The terms of Sections 607.0901 and 607.0902 of the
Florida Business Corporation Act will not apply to Subscriber,
the Subscription or any other transaction contemplated hereby.
2.10 BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of
the Company, is or will be entitled to any
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broker's or finder's fee or any other commission or similar fee
from the Company in connection with this Agreement or any of
the transactions contemplated hereby for which Subscriber will
be responsible.
3. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER AND THE
ADVANCING PARTY
Subscriber and the Advancing Party hereby jointly and
severally represent and warrant to the Company as follows:
3.1 ORGANIZATION AND STANDING
Each of Subscriber and the Advancing Party is a
corporation duly incorporated, validly existing and in good
standing under the laws of Luxembourg. Subscriber has all
requisite corporate power and authority to own, operate, lease
and encumber its properties and carry on its business as now
conducted, and to enter into this Agreement and to perform its
obligations hereunder.
3.2 DUE AUTHORIZATION
The execution, delivery and performance of this
Agreement have been duly and validly authorized by all
necessary corporate action on the part of Subscriber and the
Advancing Party. This Agreement has been duly executed and
delivered by each of Subscriber and the Advancing Party for
itself and constitutes the valid and legally binding
obligations of Subscriber and the Advancing party, enforceable
against Subscriber or the Advancing Party, as the case may be,
in accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to
creditors' rights or general principles of equity.
3.3 CONFLICTING AGREEMENTS AND OTHER MATTERS
Neither the execution and delivery of this Agreement
nor the performance by Subscriber or the Advancing Party, as
the case may be, of its obligations hereunder will conflict
with, result in a breach of the terms, conditions or provisions
of, constitute a default under, result in the creation of any
mortgage, security interest, encumbrance, lien or charge of any
Kind upon any of the properties or assets of Subscriber or the
Advancing Party, as the case may be, pursuant to, or require
any consent, approval or other action by or any notice to or
filing with any Government Authority pursuant to, the
organization documents or agreements of Subscriber or the
Advancing Party, as the case may be, or any agreement,
instrument, order, judgment, decree, statute, law, rule or
regulation by which Subscriber or the Advancing Party, as the
case may be, is bound, except for filings after the Closing
under Section 13(d) of the Exchange Act.
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3.4 SOURCE OF FUNDS
At the Closing, the Advancing Party shall have
available and shall advance to Subscriber all of the funds
necessary to satisfy Subscriber's obligations hereunder and to
pay any related fees and expenses in connection with the
foregoing.
3.5 BROKERS OR FINDERS
No agent, broker, investment banker or other firm or
person, including any of the foregoing that is an Affiliate of
Subscriber or the Advancing Party, is or will be entitled to
any broker's or finder's fee or any other commission or similar
fee from Subscriber or the Advancing Party in connection with
this Agreement or the transactions contemplated hereby for
which the Company will be responsible.
3.6 REIT QUALIFICATION MATTERS
To Subscriber's knowledge, no person which would be
treated as an "individual" for purposes of Section 542(a)(2) of
the Code (as modified by Section 856(h) of the Code) owns or
would be considered to own (taking into account the ownership
attribution rules under Section 544 of the Code, as modified by
Section 856(h) of the Code) in excess of 9.8% of the value of
the outstanding equity interest in Subscriber or the Advancing
Party.
3.7 INVESTMENT COMPANY MATTERS
Neither the Advancing Party nor Subscriber is, and
after giving effect to the purchase of the Concurrent Shares,
neither will be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
4. CONDITIONS TO CLOSING
4.1 CONDITIONS TO OBLIGATIONS OF SUBSCRIBER
The obligations of Subscriber to purchase and pay for
the Concurrent Shares at the Closing are subject to
satisfaction or waiver of each of the following conditions
precedent:
(a) The Closing of the Public Offering shall have
occurred at the same per share Price to Public as the Per Share
Purchase Price for the Concurrent Shares.
(b) The representations and warranties of the
Company contained herein shall have been true and correct in
all respects on and as of the date hereof, and shall be true
and correct in all respects on and as of the Closing with the
same effect as
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though such representations and warranties had been made on and
as of the date of the Closing (except for representations and
warranties that speak as of a specific date or time other than
the date of the Closing (which need only be true and correct in
all respects as of such date or time)), other than, in all such
cases, such failures to be true and/or correct as would not in
the aggregate reasonably be expected to have a Material Adverse
Effect; provided, however, that if any of the representations
and warranties is already qualified in any respect by
materiality or as to Material Adverse Effect for purposes of
this Section 4.1(b) such materiality or Material Adverse
Effect qualification will be in all respects ignored (but
subject to the overall standard as to Material Adverse Effect
set forth immediately prior to this proviso). The Company
shall have delivered to Subscriber at the Closing a certificate
of an appropriate officer in form and substance reasonably
satisfactory to Subscriber dated the date of the Closing to
such effect.
In making any determination as to Material Adverse
Effect under this Section 4.1(b), the matters set forth in each
such Section shall be aggregated and considered together.
(c) There shall not be in effect any order, decree
or injunction of a court or agency of competent jurisdiction
which enjoins or prohibits consummation of the transactions
contemplated hereby and there shall be no pending Actions which
would reasonably be expected to have a material adverse effect
on the ability of the Company to consummate the transactions
contemplated hereby or to issue the Concurrent Shares.
(d) The Company shall not have taken any action or
have failed to take any action which would reasonably be
expected to, alone or in conjunction with any other factors,
result in the loss of its status as a REIT for federal income
tax purposes.
4.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY
The obligations of the Company to issue and sell the
Concurrent Shares at the Closing are subject to satisfaction or
waiver of each of the following conditions precedent:
(a) The closing of the Public Offering shall have
occurred.
(b) The representations and warranties of Subscriber
and the Advancing Party contained herein shall have been true
and correct in all respects on and as of the date hereof, and
shall be true and correct in all respects on and as of the
Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing
(except for representations and warranties that speak as of a
specific date or time other than the date of the Closing (which
need only be true and correct in all respects as of such date
or time)), other than, in all such cases, such failures to be
true and/or correct as would not in the aggregate reasonably be
expected to have a Material Adverse Effect. Subscriber shall
have delivered to the Company at
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the Closing a certificate of an appropriate officer in form and
substance reasonably satisfactory to the Company dated the date
of the Closing in such effect.
(c) There shall not be in effect any order, decree
or injunction of a court or agency of competent jurisdiction
which enjoins or prohibits consummation of the transactions
contemplated hereby and there shall be no pending Actions which
would reasonably be expected to have a material adverse effect
on the ability of the Company to consummate the transactions
contemplated hereby or to issue the Concurrent Shares.
5. SURVIVAL; INDEMNIFICATION
5.1 SURVIVAL
All representations, warranties, covenants and
agreements of the parties contained herein, including indemnity
or indemnification agreements contained herein, shall survive
the Closing until the first anniversary of the Closing. No
Action or proceeding may be brought with respect to any of the
representations, warranties, covenants or agreements unless
written notice thereof, setting forth in reasonable details the
claimed misrepresentations or breach of warranty or breach of
covenant or agreement, shall have been delivered to the party
alleged to have breached such representation or warranty or
such covenant or agreement prior to the first anniversary of
the Closing. Those covenants or agreements that contemplate or
may involve actions to be taken or obligations in effect after
the Closing shall survive in accordance with their terms.
5.2 INDEMNIFICATION BY SUBSCRIBER OR THE COMPANY
(a) Subject to Section 5. 1, from and after the
Closing, Subscriber shall indemnify and hold harmless the
Company, its successors and assigns, from and against any and
all Loss and Expenses suffered, directly or indirectly, by the
Company by reason of, or arising out of (i) any breach as of
the date made or deemed made or required to be true of any
representations or warranty made by Subscriber in or pursuant
to this Agreement, or (ii) any failure by Subscriber to perform
or fulfill any of its covenants or agreements set forth herein.
Notwithstanding any other provision of this Agreement to the
contrary, in no event shall Loss and Expenses include a party's
incidental or consequential damages.
(b) Subject to Section 5. 1, from and after the
Closing, the Company shall indemnify and hold harmless
Subscriber, its successors and assigns, from and against any
and all Loss and Expenses, suffered, directly or indirectly, by
Subscriber by reason of, or arising out of, any breach as of
the date made or deemed made or required to be true of any
representations or warranty made by the Company in or pursuant
to this Agreement and any statements made in any certificate
delivered pursuant to this Agreement, or (ii) any failure by
the Company to perform or fulfill any of its covenants
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or agreements set forth herein. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall
Loss and Expenses include a party's incidental or consequential
damages.
(c) Notwithstanding the foregoing, (i) neither
Subscriber nor the Company shall be responsible for any Loss
and Expenses as provided by paragraphs (a) and (b),
respectively, of this Section 5.2, until the cumulative
aggregate amount of such Loss and Expenses suffered by
Subscriber or the Company, as the case may be, exceeds
$500,000, in which case Subscriber or the Company, as the case
may be, shall then be liable for all such Loss and Expenses,
and (ii) the cumulative aggregate indemnity obligations of each
of Subscriber and the Company under this Section 5.2 shall in
no event exceed the Purchase Price. Except with respect to
third-party claims being defended in good faith or claims for
indemnification with respect to which there exists a good faith
dispute, the indemnifying party shall satisfy its obligations
hereunder within 30 days of receipt of a notice of claim under
this Section 5.
5.3 THIRD-PARTY CLAIMS
If a claim by a third party is made against
Subscriber or the Advancing Party or the Company (each, an
"Indemnified Party") and if such Indemnified Party intends to
seek indemnity with respect thereto under this Section 5, such
Indemnified Party shall promptly notify the indemnifying party
in writing of such claims setting forth such claims in
reasonable detail. The indemnifying party shall have 20 days
after receipt of such notice to undertake, through counsel of
its own choosing and at its own expense, the settlement or
defense thereof, and the Indemnified Party shall cooperate with
it in connection therewith; provided, however, that the
Indemnified Party may participate in such settlement or defense
through counsel chosen by such Indemnified Party, provided that
the fees and expenses of such counsel shall be borne by such
Indemnified Party. The Indemnified Party shall not pay or
settle any claim which the indemnifying party is contesting.
Notwithstanding the foregoing, the Indemnified Party shall have
the right to pay or settle any such claim, provided that in
such event it shall waive any right to indemnity therefor by
the indemnifying party. If the indemnifying party does not
notify the Indemnified Party within 20 days after the receipt
of the Indemnified Party's notice of a claim of indemnity
hereunder that it elects to undertake the defense thereof, the
Indemnified Party shall have the right to contest, settle or
compromise the claim but shall not thereby waive any right to
indemnity therefor pursuant to this Agreement.
6. MISCELLANEOUS
6.1 Counterparts
This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement, and shall be effective when one or more counterparts
have been signed by each party hereto and delivered to the
other party.
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Copies of executed counterparts transmitted by telecopy,
telefax or other electronic transmission service shall be
considered original executed counterparts for purposes of this
Section, provided receipt of copies of such counterparts is
confirmed.
6.2 GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT
REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF.
6.3 ENTIRE AGREEMENT
This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof
and there are no agreements, understandings, representations or
warranties between the parties other than those set forth or
referred to herein. This Agreement is not intended to confer
upon any person not a party hereto (and their successors and
assigns) any rights or remedies hereunder.
6.4 NOTICES
All notices and other communications hereunder shall
be sufficiently given for all purposes hereunder if in writing
and delivered personally, sent by documented overnight delivery
service or, to the extent receipt is confirmed, telecopy,
telefax or other electronic transmission service to the
appropriate address or numbers as set forth below. Notices to
the Company shall be addressed to:
Regency Realty Corporation
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Telecopy Number: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxx & Xxxxxxx
Xxxxxxxxx Building
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Commander, III, Esq.
Telecopy Number: (000) 000-0000
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Notices to Subscriber or the Advancing Party shall be
addressed to:
Security Capital Holdings S.A.
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Xxxxxxxxx: Xxxxx X. Xxxx, Vice President
Telecopy Number: (000) 0000-0000
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
6.5 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and insure to
the benefit of the parties hereto and their respective
successors. Neither Subscriber nor the Advancing Party shall
be permitted to assign any of its rights hereunder to any third
party; provided, however, that Subscriber and the Advancing
Party may assign all (but not less than all) of their rights
hereunder to any other Investor so long as such other Investor
agrees in writing, in a form reasonably acceptable to the
Company, to be bound by all the terms and conditions of this
Agreement.
6.6 HEADINGS
The Section and other headings contained in this
Agreement are inserted for convenience of reference only and
shall not affect the meaning or interpretation of this
Agreement.
6.7 AMENDMENTS AND WAIVERS
This Agreement may not be modified or amended except
by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment
is sought. Any party hereto may, only by an instrument in
writing, waive compliance by the other parties hereto with any
term or provision hereof on the part of such other party hereto
to be performed or complied with. The waiver by any party hereto
of a breach of any term or provision hereof shall not be construed
as a waiver of any subsequent breach.
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6.8 EXPENSES
Except as set forth in this Agreement, whether or not
the Closing is consummated, all legal and other costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
6.9 SEVERABILITY
Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such
invalidity or unenforceability, without affecting in any way
the remaining provisions hereof.
6.10 FURTHER ASSURANCES
The Company, Subscriber and the Advancing Party agree
that, from time to time, whether before, at or after the
Closing, each of them will execute and deliver such further
instruments of conveyance and transfer and take such other
action as may be necessary to carry out the purposes and
intents hereof.
6.11 JOINT AND SEVERAL LIABILITY; GUARANTY
The obligations and liability of Subscriber and the
Advancing Party under or in connection with this Agreement are
joint and several. The Advancing Party hereby unconditionally
and irrevocably guarantees and agrees to be responsible for the
payment and performance of all of Subscriber's obligations
hereunder.
[THE REMAINDER OF THIS PAGE IS BLANK INTENTIONALLY.]
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement or have caused this Agreement to be duly
executed on their behalf, as of the day and year first above
written.
REGENCY REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
SECURITY CAPITAL HOLDINGS S.A.
By:
Name: Xxxxx X. Xxxx
Title: Vice President
SECURITY CAPITAL U.S. REALTY
By:
Name: Xxxxx X. Xxxx
Title: Vice President
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement or have caused this Agreement to be duly
executed on their behalf, as of the day and year first above
written.
REGENCY REALTY CORPORATION
By:
Name:
Title:
SECURITY CAPITAL HOLDINGS S.A.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
SECURITY CAPITAL U.S. REALTY
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
