AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 6, 1995
REGISTRATION NO. 33-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
FEDERAL REALTY INVESTMENT TRUST
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DISTRICT OF COLUMBIA 52-0782497
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
4800 HAMPDEN LANE
BETHESDA, MARYLAND 20814
(301) 652-3360
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
STEVEN J. GUTTMAN, PRESIDENT AND TRUSTEE
FEDERAL REALTY INVESTMENT TRUST
4800 HAMPDEN LANE
BETHESDA, MARYLAND 20814
(301) 652-3360
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
THOMAS F. COONEY, III, ESQ.
KIRKPATRICK & LOCKHART LLP
1800 M STREET, N.W.
WASHINGTON, D.C. 20036
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable following the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- --------------------------------------------------------------------------------
Common Shares, no par or
stated value............... 380,000 $22 $8,360,000 $2,883
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, based
upon the average of the high and low prices of the common shares reported
on the New York Stock Exchange on August 31, 1995.
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES 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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 6, 1995
380,000 SHARES
[FEDERAL REALTY INVESTMENT TRUST LOGO APPEARS HERE]
COMMON SHARES
Federal Realty Investment Trust (the "Trust") is an owner, operator and
redeveloper of community and neighborhood shopping centers and retail
buildings. Founded in 1962, the Trust is a self-administered real estate
investment trust that manages, leases and supervises renovation of its
properties. At June 30, 1995, the Trust owned 53 community and neighborhood
shopping centers, eleven retail buildings and one apartment complex. On
September , 1995, the Trust privately placed 380,000 common shares of
beneficial interest, no par or stated value (the "Shares"), to the shareholders
of a corporation ("Holders") as consideration for the assets of the corporation
("Private Placement"), consisting primarily of a shopping center. The Shares
offered hereby, or which may be offered hereby, are offered for the accounts of
the Holders, none of which are "affiliates" of the Trust, as that term is
defined in Rule 405 of the Securities Act of 1933, as amended. The Holders have
advised the Trust that sales of the Shares may be made, from time to time, by
or for the account of the Holders, on the New York Stock Exchange (once such
Shares have been included for listing thereon), in private transactions, or
otherwise, through broker-dealers. These sales will be made either at market
prices prevailing at the time of sale or at negotiated prices. Broker-dealers
may either act as agent for a Holder or may purchase any of the Shares as
principal and thereafter may sell such Shares, from time to time, in
transactions on the New York Stock Exchange at market prices prevailing at the
time of sale, or at negotiated prices.
Pursuant to an agreement with the Trust, all expenses incurred by the Trust
in connection with this offering are to be borne by the Trust except for
brokers' commissions, if any, taxes and other similar selling expenses which
are to be borne by the Holders. The Trust's Shares are listed on the New York
Stock Exchange under the Symbol "FRT." The last reported sale price for the
Shares on September , 1995 was $ .
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
-----------
The date of this Prospectus is September , 1995.
AVAILABLE INFORMATION
The Trust is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and, in accordance therewith, files reports
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information can be
inspected and copied at the Public Reference Section maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549;
Chicago Regional Office, 500 West Madison Street, Suite 1400, Chicago Illinois
60661; and New York Regional Office, 7 World Trade Center, New York, New York
10048. Such reports, proxy statements and other information concerning the
Trust can also be inspected at the office of the New York Stock Exchange, 20
Broad Street, New York, New York.
The Trust will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon their written or oral request, a copy of any or
all of the documents incorporated herein by reference (other than exhibits to
such documents). Written requests for such copies should be addressed to Kathy
Klein, Director--Corporate Communications, Federal Realty Investment Trust,
4800 Hampden Lane, Bethesda, Maryland 20814 (telephone 301/652-3360).
----------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Trust with the Commission are
incorporated in this Prospectus by reference and are made a part thereof:
1. The Trust's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994.
2. The Trust's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995.
3. The Trust's Current Reports on Form 8-K filed with the Commission on
May 26, 1995 and August 16, 1995.
4. Any documents the Trust subsequently files pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the termination of this offering.
----------------
THE TRUST
Federal Realty Investment Trust (the "Trust") is an owner, operator and
redeveloper of community and neighborhood shopping centers and retail
buildings. Founded in 1962, the Trust is a self-administered real estate
investment trust that manages, leases and supervises renovation of its
properties. At June 30, 1995, the Trust owned 53 community and neighborhood
shopping centers, eleven retail buildings, and one apartment complex. At that
date, the shopping center portfolio had approximately 11.5 million rentable
square feet. At June 30, 1995, the occupancy rate of the core shopping center
portfolio (which excluded centers acquired in the previous twelve months and
centers under redevelopment) was 94%. Including all shopping centers owned at
June 30, 1995, the occupancy rate was also 94%.
The Trust, a District of Columbia business trust of unlimited duration,
maintains its offices at 4800 Hampden Lane, Bethesda, Maryland 20814
(telephone 301/652-3360).
RECENT DEVELOPMENTS
The Trust intends to continue its acquisition and redevelopment activities
in the second half of 1995. Acquisitions are being considered in the Trust's
core major metropolitan markets of New York/New Jersey, Philadelphia and
Baltimore/Washington, D.C. as well as the Chicago, Illinois and Boston,
Massachusetts markets. In addition, the Trust is seeking to acquire additional
retail buildings in densely developed urban and suburban areas and is also
pursuing site acquisitions in its core markets to permit the Trust to develop
new shopping centers. In August 1995, the Trust purchased a retail building in
Westfield, New Jersey for approximately $2.1 million. On August 1, 1995, the
Trust sold North City Shopping Center for $1.8 million.
USE OF PROCEEDS
The Trust will receive no proceeds from the sale, if any, of the Shares by
the Holders.
2
PRICE RANGE OF THE SHARES AND DISTRIBUTIONS
The Trust's Shares are listed on the New York Stock Exchange under the
symbol FRT. The following table sets forth the high and low sale prices of the
Shares for the periods indicated and the distributions made per Share in such
periods.
DISTRIBUTIONS
HIGH LOW PAID
---- ---- -------------
1993
1st Quarter............. $29 $23 7/8 $.385
2nd Quarter............. 28 7/8 24 3/4 .385
3rd Quarter ............ 30 1/4 25 1/2 .385
4th Quarter............. 29 7/8 24 1/8 .39
1994
1st Quarter............. $29 1/2 $23 $.39
2nd Quarter............. 25 7/8 23 1/2 .39
3rd Quarter ............ 26 1/8 21 .39
4th Quarter............. 23 3/4 19 5/8 .395
1995
1st Quarter............. $22 $20 1/4 $.395
2nd Quarter............. 22 5/8 19 3/4 .395
3rd Quarter (through
September ).......... .395
The last reported sale price of the Shares on the New York Stock Exchange on
September , 1995, was $ per Share. As of December 31, 1994, there were
4,549 registered holders of Shares.
The Trust has made 131 consecutive quarterly distributions and has increased
its distribution rate every year for each of the last 27 years. The current
indicated annual distribution rate is $1.58 per Share. The Trust's ability to
make distributions depends on a number of factors, including its net cash
provided by operating activities, capital commitments and debt repayment
schedules.
For federal income tax purposes, distributions made to shareholders may
consist of ordinary income, capital gains distributions, non-taxable return of
capital or a combination thereof. Distributions that exceed the Trust's
current and accumulated earnings and profits constitute a return of capital
and reduce the shareholder's basis in his Shares. To the extent that a
distribution exceeds both current and accumulated earnings and profits and the
shareholder's basis in his Shares, it will generally be treated as gain from
the sale or exchange of that shareholder's Shares. If the Trust designates
certain distributions as capital gains distributions in accordance with
Section 857(b)(3)(B) and (C) of the Internal Revenue Code of 1986, as amended
(the "Code"), such distributions will be taxable as long-term capital gains to
the shareholder, regardless of the length of time the shareholder has held his
Shares. Under Section 291 of the Code, however, a corporate shareholder may be
required to treat up to 20% of a capital gains distribution as ordinary
income. Any loss upon the sale or exchange of Shares held for six months or
less will be treated as long-term capital loss to the extent of any capital
gains distributions received by the shareholder. The Trust annually notifies
shareholders as to the taxability of distributions made during the preceding
year. Since 1990, cash distributions per Share made to shareholders have been
taxable as set forth below.
1990 1991 1992 1993 1994
----- ----- ------ ------ ------
Ordinary income............................ $1.05 $ .83 $ .610 $1.095 $ .815
Capital gains.............................. .06
Return of capital.......................... .31 .66 .915 .450 .75
----- ----- ------ ------ ------
Total Distributions made................... $1.42 $1.49 $1.525 $1.545 $1.565
===== ===== ====== ====== ======
3
The Trust offers a dividend reinvestment plan which allows its shareholders
to automatically reinvest distributions, as well as make voluntary cash
payments towards the purchase of additional Shares.
DETERMINATION OF OFFERING PRICE
The Shares offered hereby, or which may be offered hereby, will be offered
at prevailing market prices at the time of such sale or at negotiated prices.
PLAN OF DISTRIBUTION
Sales of the Shares by the Holders, if any, will be made in open market
transactions on the New York Stock Exchange (once the Shares are included for
listing thereon), or in private transactions. Broker-dealers may either act as
agent for a Holder or may purchase any of the Shares as principal and
thereafter may sell such Shares, from time to time, in transactions on the New
York Stock Exchange at market prices prevailing at the time of sale, or at
negotiated prices.
SELLING SECURITY HOLDERS
The Holders are the Carpenter Realty Company, Colonial Realty Corp. and
Blair Beach, constituting all of the shareholders of Bristol Shopping Plaza,
Inc. The Trust privately placed the Shares with the Holders as consideration
for the net assets and liabilities of Bristol Shopping Plaza, Inc., valued at
approximately $7.7 million and consisting primarily of a 250,000 square foot
shopping center in Bristol, Connecticut. None of the Holders has had any
material relationship or held any position or office with the Trust or any of
its affiliates. At September , 1995, the table below sets forth the
ownership by the Holders of Shares of the Trust and the amount of Shares to be
offered by each Holder:
SHARES OFFERED
HOLDER SHARES HELD HEREBY
------ ----------- --------------
Carpenter Realty Company....................... 126,667 126,667
Colonial Realty Corp........................... 126,667 126,667
Blair Beach.................................... 126,866 126,666
DESCRIPTION OF SHARES
The Shares are issued pursuant to the Third Amended and Restated Declaration
of Trust (the "Declaration of Trust"). The Shares (no par or stated value) are
equal with respect to distribution and liquidation rights, are not
convertible, have no preemptive rights to subscribe for additional Shares, are
nonassessable (except as described under "Shareholder Liability" below) and
are transferrable in the same manner as shares of a corporation. Each
shareholder is entitled to one vote in person or by proxy for each Share
registered in his name and has the right to vote on the election or removal of
Trustees, amendments to the Declaration of Trust, proposals to terminate,
reorganize, merge or consolidate the Trust or to sell or dispose of
substantially all of the Trust's property and with respect to certain business
combinations. The Trust will have perpetual existence unless and until
dissolved and terminated. Except with respect to the foregoing matters, no
action taken by the shareholders at any meeting shall in any way bind the
Trustees. The Shares offered hereby by the Trust will be, when issued, fully
paid and nonassessable (except as described under "Shareholder Liability"
below). Without shareholder approval, the Trust may issue an unlimited number
of securities, warrants, rights, or other options to purchase Shares and other
securities convertible into Shares.
Several provisions in the Declaration of Trust may have the effect of
deterring a take-over of the Trust. These provisions (i) establish the
percentage of outstanding Shares required to approve certain matters,
including
4
removal of a Trustee, amendment of any Section of the Declaration of Trust
that provides for a shareholder vote, the reorganization, merger,
consolidation, sale or termination of the Trust and a sale of substantially
all of the assets of the Trust, at 80% unless the matter to be acted upon is
approved or recommended by the Board of Trustees in which event the percentage
is 66 2/3%; (ii) restrict ownership of the Trust's outstanding Shares by a
single person to 9.8% of such Shares unless otherwise approved by the Board of
Trustees to assist in protecting and preserving the qualification of the Trust
as a real estate investment trust under the Code; and (iii) include a "fair
price" provision that would deter a "two-stage" take-over transaction by
requiring an 80% vote of outstanding Shares for certain defined "business
combinations" with shareholders owning more than 9.8% of Shares or their
affiliates if the transaction is neither approved by the Board of Trustees nor
meets certain price and procedural conditions.
In addition, the Declaration of Trust includes provisions for (i) the
classification of Trustees into three classes serving three year staggered
terms and (ii) the authorization of Trustees to issue an unlimited number of
Shares and to issue additional classes of equity securities in unlimited
numbers with such rights, qualifications, limitations or restrictions as are
stated in the Board of Trustees' resolution establishing such class of
securities.
On April 13, 1989, the Trustees adopted a Shareholder Rights Plan (the
"Plan"). Under the Plan, one right was issued for each outstanding Share held
as of April 24, 1989, and a right will be attached to each Share issued in the
future. The rights authorize the holders to purchase Shares at a price below
market upon the occurrence of certain events, including, unless approved by
the Board of Trustees, acquisition by a person or group of certain levels of
beneficial ownership of the Trust or a tender offer. The rights are redeemable
by the Trust for $.01 and expire on April 24, 1999.
REIT QUALIFICATION
The Trust operates in a manner intended to qualify for treatment as a real
estate investment trust under Sections 856 to 860 of the Code. In general, a
real estate investment trust that distributes to its shareholders at least 95%
of its taxable income (other than net capital gain) for a taxable year and
that meets certain other conditions will not be taxed on income (including net
capital gain) distributed for that year. If the Trust fails to qualify in any
taxable year, it will be taxed as a corporation for that year, and
distributions to shareholders will not be deductible by the Trust in computing
its taxable income. Under certain circumstances, the Trust also will be
disqualified from being treated as a real estate investment trust for the
ensuing four taxable years. The Trust may, at its election, redeem Shares if
the Trustees believe in good faith that the ownership interest of the holder
of such Shares might adversely affect the federal income tax status of the
Trust or its shareholders. Redemption in such circumstances will be at the
fair market value of the Shares as determined in good faith by the Trustees.
SHAREHOLDER LIABILITY
The Declaration of Trust provides that no shareholder shall be personally
liable in connection with the Trust's property or the affairs of the Trust.
The Declaration of Trust further provides that the Trust shall indemnify and
hold harmless shareholders against all claims and liabilities and related
reasonable expenses to which they may become subject by reason of their being
or having been shareholders. In addition, the Trust is required to, and as a
matter of practice does, insert a clause in its contracts that provides that
shareholders shall not be personally liable thereunder. However, in respect to
tort claims and contract claims where shareholder liability is not so negated,
claims for taxes and certain statutory liability, the shareholders may, in
some jurisdictions, be personally liable to the extent that such claims are
not satisfied by the Trust. The Trust carries public liability insurance that
the Trustees consider adequate. Thus, any risk of personal liability to
shareholders is limited to situations in which the Trust's assets plus its
insurance coverage would be insufficient to satisfy the claims against the
Trust and its shareholders.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Shares is American Stock Transfer &
Trust Company, New York, New York.
5
LEGAL OPINIONS
The legality of the Shares offered hereby is being passed upon for the Trust
by Kirkpatrick & Lockhart LLP, 1800 M Street, N.W., Washington, D.C. 20036.
Certain REIT tax matters relating to the Trust are being passed upon by
Goodwin, Procter & Hoar, Exchange Place, Boston, Massachusetts 02109.
EXPERTS
The Consolidated Financial Statements and Schedules of the Trust as of
December 31, 1994 and 1993 and for each of the years in the three year period
ended December 31, 1994 incorporated herein by reference have been
incorporated herein in reliance on the reports dated February 10, 1995, of
Grant Thornton LLP, independent certified public accountants, also
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
6
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHO-
RIZED BY THE TRUST. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE SHARES IN ANY JURISDICTION WHERE, OR TO
ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE
FACTS SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF THE TRUST SINCE THE
DATE HEREOF.
---------------
TABLE OF CONTENTS
PAGE
----
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Trust.................................................................. 2
Recent Developments........................................................ 2
Use of Proceeds............................................................ 2
Price Range of the Shares and Distributions................................ 3
Determination of Offering Price............................................ 4
Plan of Distribution....................................................... 4
Selling Security Holders................................................... 4
Description of Shares...................................................... 4
Legal Opinions............................................................. 6
Experts.................................................................... 6
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
380,000 SHARES
[FEDERAL REALTY INVESTMENT TRUST LOGO APPEARS HERE]
COMMON SHARES
---------------
PROSPECTUS
---------------
SEPTEMBER , 1995
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES AND DISTRIBUTION
The following table sets forth the estimated expenses in connection with the
offering contemplated by this Registration Statement:
SEC Registration Fee............................................. $ 2,883
New York Stock Exchange Listing Fee.............................. 1,500
Blue Sky Fees and Expenses....................................... 300
Printing and Engraving Costs..................................... 7,500
Accounting Fees and Expenses..................................... 5,000
Legal Fees and Expenses.......................................... 10,000
Transfer Agent and Registrar's Fees.............................. 1,500
Miscellaneous.................................................... 1,317
-------
Total........................................................ $30,000
=======
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Trust's Third Amended and Restated Declaration of Trust provides in
substance that Trustees and officers of the Trust shall not be personally
liable to the Trust or to any other person involving the Trust's affairs,
except for their own bad faith, willful misconduct, gross negligence or
reckless disregard of duties, or failure to act in good faith in the
reasonable belief that their action was in the best interest of the Trust. The
Trust indemnifies and holds harmless each Trustee and officer against all
claims, liabilities and expenses in connection with the defense or disposition
of any lawsuit threatened or brought by reason of his office, except as to any
matter for which he is personally liable as stated above.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted pursuant to the Third Amended and Restated
Declaration of Trust or otherwise, the Trust has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Trust of expenses incurred or paid
in the successful defense of any action, suit or proceeding) is asserted in
connection with the securities being registered, the Trust will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
ITEM 16. EXHIBITS
(3) Third Amended and Restated Declaration of Trust+
(5) Opinion regarding legality
(8) Opinion regarding tax matters
(15) Acknowledgement of Independent Accountants (included on II-3)
(23) Consent of Independent Accountants (included on II-3)
(23) Consents of Counsel (included in opinions)
(24) Power of attorney (included on signature page)
- --------
+ Incorporated by reference from Registration Statement No. 33-30912, dated
September 12, 1989.
II-1
ITEM 17. UNDERTAKINGS
(1) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering thereof.
(3) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
II-2
CONSENT OF INDEPENDENT ACCOUNTANTS
We have issued our reports dated February 10, 1995, accompanying the
consolidated financial statements of Federal Realty Investment Trust appearing
in the 1994 Annual Report of the Trust to its shareholders and accompanying
the schedules included in the Annual Report on Form 10-K for the year ended
December 31, 1994 which are incorporated by reference in this Registration
Statement. We consent to the incorporation by reference in this Registration
Statement and the related Prospectus of the aforementioned reports and to the
use of our name as it appears under the caption "Experts."
Grant Thornton LLP
Washington, D.C.
September 6, 1995
ACKNOWLEDGEMENT OF INDEPENDENT ACCOUNTANTS
We hereby acknowledge our awareness of the use of our reports included in
the Trust's Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus constituting part of this Registration Statement. Such reports,
pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a
part of a registration statement prepared or certified by an accountant or
reports prepared or certified by an accountant within the meaning of Section 7
and 11 of the Act.
Grant Thornton LLP
Washington, D.C.
September 6, 1995
CONSENTS OF COUNSEL
The consent of Kirkpatrick & Lockhart LLP is contained in its opinion filed
as Exhibit 5 to this Registration Statement.
The consent of Goodwin, Procter & Hoar is contained in its opinion filed as
Exhibit 8 to this Registration Statement.
II-3
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE STATE OF MARYLAND ON THIS 6TH DAY OF SEPTEMBER 1995.
Federal Realty Investment Trust
By: /s/ Steven J. Guttman
-------------------------------
STEVEN J. GUTTMAN, PRESIDENT
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Steven J. Guttman, his true and lawful
attorney-in-fact and agent, for him, with full power of substitution and
resubstitution, for him and in his name, place and stand, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all interests and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS FORM S-3
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
SIGNATURES TITLE DATE
/s/ Steven J. Guttman President and September 6,
- ------------------------------------- Trustee (Chief 1995
STEVEN J. GUTTMAN Executive Officer)
/s/ Mary Jane Morrow Senior Vice September 6,
- ------------------------------------- President Finance & 1995
MARY JANE MORROW Treasurer (Chief
Financial Officer)
/s/ Cecily A. Ward Controller (Chief September 6,
- ------------------------------------- Accounting Officer) 1995
CECILY A. WARD
II-4
SIGNATURES TITLE DATE
/s/ Dennis L. Berman Trustee September 6,
- ------------------------------------- 1995
DENNIS L. BERMAN
Trustee September 6,
- ------------------------------------- 1995
KRISTIN GAMBLE
/s/ Samuel J. Gorlitz Trustee September 6,
- ------------------------------------- 1995
SAMUEL J. GORLITZ
/s/ Morton Lerner Trustee September 6,
- ------------------------------------- 1995
MORTON LERNER
/s/ Walter F. Loeb Trustee September 6,
- ------------------------------------- 1995
WALTER F. LOEB
/s/ George Perry Trustee September 6,
- ------------------------------------- 1995
GEORGE PERRY
/s/ Donald H. Misner Trustee September 6,
- ------------------------------------- 1995
DONALD H. MISNER
/s/ A. Cornet De Ways Ruart Trustee September 6,
- ------------------------------------- 1995
A. CORNET DE WAYS RUART
II-5
EXHIBIT INDEX
EXHIBIT NO. ITEM PAGE NO.
----------- ---- --------
(3) Third Amended and Restated Declaration of Trust........ +
(5) Opinion regarding legality.............................
(8) Opinion regarding tax matters..........................
Acknowledgement of Independent Accountants (included on
(15) II-3)..................................................
(23) Consent of Independent Accountants (included on II-3)..
(23) Consents of Counsel (included in opinions).............
(24) Power of attorney (included on signature page).........
- --------
+ Incorporated by reference from Registration Statement No. 33-30912, dated
September 12, 1989.
EXHIBIT 5
[LETTERHEAD OF KIRKPATRICK & LOCKHART APPEARS HERE]
September 6, 1995
Federal Realty Investment Trust
4800 Hampden Lane, Suite 500
Bethesda, Maryland 20814
Ladies and Gentlemen:
You have requested our opinion as counsel to Federal Realty Investment
Trust, a business trust organized under the laws of the District of Columbia
with its headquarters located in Bethesda, Maryland ("Trust"), in connection
with the Trust's registration of resales of common shares of beneficial interest
of the Trust, no par or stated value ("Shares"), by certain selling
shareholders, as described in the registration statement on Form S-3
("Registration Statement").
We have participated in the preparation of the Registration Statement
and the prospectus included therein ("Prospectus") relating to the Trust's
registration of the resales of the Shares, and in connection therewith, have
examined and relied upon the originals or copies of such records, agreements,
documents and other instruments, including the Third Amended and Restated
Declaration of Trust of the Trust ("Declaration of Trust"), the Bylaws of the
Trust, the minutes of the meetings of the Trustees to date relating to the
authorization and issuance of the Shares and have made such inquiries of such
officers and representatives as we have deemed relevant and necessary as the
basis for the opinion hereinafter set forth. In such examination, we have
assumed, without independent verification, the genuineness of all signatures
(whether original or photostatic), the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, and the conformity
to authentic original documents of all documents submitted to us as certified or
photostatic copies. We have assumed, without independent verification, the
accuracy of the relevant facts stated therein.
As to any other facts material to the opinion expressed herein that were
not independently established or verified, we have relied upon statements and
representations of officers and employees of the Trust.
Based upon the foregoing and subject to the qualifications set forth
below, we are of the opinion that, on the basis of such examination, the Trust
has been duly organized and is validly existing under the laws of the District
of Columbia as a voluntary business association of the type commonly known as a
business trust and that the Trust has authority to issue an unlimited number of
Shares, each without par value. It also is our opinion that the
Federal Realty Investment Trust
September 6, 1995
Page 2
Shares referred to in the Registration Statement, when issued and sold as
contemplated in the Registration Statement, will be legally issued, fully paid
and non-assessable and, except as hereinafter set forth, no personal liability
will attach to the ownership of such Shares.
The Declaration of Trust provides that the holders of the Shares shall
not be subject to any liability for the acts or obligations of the Trust and
that the funds and property of the Trust shall be solely liable for such acts or
obligations. The Declaration of Trust requires that, as far as practicable, each
written instrument creating an obligation of the Trust shall contain a
provision to such effect. We are of the opinion that no personal liability will
attach to the holders of the Shares in most jurisdictions for claims under any
written instrument containing such a provision, where adequate notice is given
of such provision. However, with respect to tort claims and contract claims
where shareholder liability is not so negated, claims for taxes and certain
statutory liabilities, a shareholder may, in some jurisdictions, be held liable
to the extent that claims are not satisfied by the Trust out of its assets or
insurance.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and we consent to the reference to our firm under the
caption "Legal Opinions" in the Prospectus.
The foregoing opinion is being furnished to, and is solely for the
benefit of, the addressee named above and except with our prior consent, is not
to be used, circulated, quoted, published or otherwise referred to or
disseminated for any other purpose or relied upon by any person or entity other
than said addressee.
Very truly yours,
KIRKPATRICK & LOCKHART LLP
By: /s/ Thomas F. Cooney, III
-------------------------
Thomas F. Cooney, III
EXHIBIT 8
[LETTERHEAD OF GOODWIN, PROCTER & HOAR APPEARS HERE]
September 6, 1995
Federal Realty Investment Trust
4800 Hampden Lane
Suite 500
Bethesda, MD 20814
Re: Federal Tax Matters
-----------------------
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as special tax counsel
to Federal Realty Investment Trust (the "Trust") for your use in connection with
the Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on September 6, 1995 (the "Registration Statement"). This opinion
relates to the Trust's qualification for federal income tax purposes as a real
estate investment trust ("REIT") under the Internal Revenue Code of 1986, as
amended (the "Code").
In rendering this opinion, we have reviewed and relied upon copies of
the Trust's federal income tax return on Form 1120-REIT dated June 28, 1988 for
the taxable year of the Trust ended December 31, 1987; on Form 1120-REIT dated
September 7, 1989 for the taxable year of the Trust ended December 31, 1988; on
Form 1120-REIT dated September 14, 1990 for the taxable year of the Trust ended
December 31, 1989; on Form 1120-REIT dated September 12, 1991 for the taxable
year of the Trust ended December 31, 1990; on Form 1120-REIT dated September 8,
1992 for the taxable year of the Trust ended December 31, 1991; on Form
1120-REIT dated September 13, 1993 for the taxable year of the Trust ended
December 31, 1992, and on Form 1120-REIT dated September 9, 1994 for the taxable
year of the Trust ended December 31, 1993. We assume that each of the foregoing
returns was timely filed following timely filing of application for automatic
extension in each year.
We have reviewed and relied upon the description of the Trust, its
investments and its operations contained or incorporated by reference in the
Registration Statement and have had discussions with management of the Trust
concerning the investments and operations of the Trust. We have also reviewed
certain documents of the Trust relating to the ownership and operation of
selected real estate properties, leasehold interests, and other investments
owned by the Trust, including management agreements relating to such properties
and leasehold interests and forms of leases relating to the Trust's properties
and leasehold interests, and we
[LETTERHEAD OF GOODWIN, PROCTER & HOAR APPEARS HERE]
Federal Realty Investment Trust
September 6, 1995
Page 2
rely upon representations made to us that such documents, forms of leases and
management agreements are representative of those existing and in effect for the
other properties and investments of the Trust.
Representations we have received from management of the Trust and from
Kirkpatrick & Lockhart, corporate counsel to the Trust, have also focused upon
the number and holdings of shareholders of the Trust; the past and present
distribution policy of the Trust; various record keeping requirements; and other
matters which we deem relevant and upon which we rely for purposes of rendering
this opinion, including without limitation the Trust's quarterly REIT compliance
workpapers for each quarter of the Trust commencing January 1, 1987 and ending
June 30, 1995 as prepared by Grant Thornton, independent auditors for the Trust.
Except as specifically noted herein, we have not made an independent
investigation of any of the facts set forth in such representations or
workpapers.
Our activities described in the immediately preceding two paragraphs
relate to the periods covered by the aforementioned tax returns and to the
present investments and operations of the Trust. With respect to the
qualification of the Trust as a REIT for taxable years prior to 1987 we have
relied exclusively and without any investigation on our part on the opinions of
Kirkpatrick & Lockhart dated April 30, 1987 and of Content, Tatusko, Patterson &
Weinberger dated March 18, 1985 adopted by Green Stewart & Farber, P.C. as to
the qualification of the Trust as a REIT for the taxable years ended
December 31, 1982 through December 31, 1986.
Based upon the foregoing, we are of the opinion that the Trust has
qualified as a REIT for the taxable years ended December 31, 1985 through
December 31, 1994; that the form of organization of the Trust and its current
operations, assets and contemplated income are such that the Trust is in a
position under present law to so qualify for the taxable year ending December
31, 1995; and that the Trust should so qualify for the taxable year ending
December 31, 1995 and thereafter provided that the Trust continues to meet the
asset composition, source of income, shareholder diversification, distributions,
record-keeping and other requirements of the Code necessary for the Trust to
qualify as a REIT.
We wish to point out that our opinion is not binding on the Internal
Revenue Service and, without limiting our opinion, we note that there can be no
assurance that all of the requirements for qualification as a REIT for any
particular taxable year have in fact been met until the return for such taxable
year has been reviewed by the Internal Revenue Service or the period for such
review has expired.
[LETTERHEAD OF GOODWIN, PROCTER & HOAR APPEARS HERE]
Federal Realty Investment Trust
September 6, 1995
Page 3
We concur with the accuracy of the legal statements in the Registration
Statement set forth under the caption "Description of Common Shares -- REIT
Qualification."
We consent to this opinion being filed as an exhibit to the Registration
Statement and to the reference to our firm under the caption "Legal Opinions" in
the Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar
GOODWIN, PROCTER & HOAR
