As filed with the Securities and Exchange Commission on August 12, 2002
Registration No. 333-______
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 governing instrument)
Maryland 52-0782497
(State or other jurisdiction of incorporation or organization) (I.R.S. employer identification no.)
1626 East Jefferson Street
Rockville, MD 20852
(301) 998-8100
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Dawn M. Becker
Vice President, General Counsel and Secretary
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, MD 20852
(301) 998-8100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
James E. Showen
Kevin L. Vold
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this 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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-63619
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities Proposed Maximum Amount of
Being Registered (1) Aggregate Offering Price (2) Registration Fee (3)(4)
- ---------------------------------------------------------------------------------------------------------------------
Debt Securities, Preferred Shares, Common Shares $26,419,500 $2,431
- ---------------------------------------------------------------------------------------------------------------------
(1) This registration statement also covers delayed delivery contracts that may
be issued by the registrant under which the part purchasing such contracts
may be required to purchase Debt Securities, Preferred Shares or Common
Shares. Such contracts may be issued together with the securities to which
they relate. In addition, securities registered hereunder either may be
sold separately or as units comprised of more than one type of security
registered hereunder.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
(such as European Currency Units).
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as
amended.
(4) A total of $500,000,000 of securities were registered under Registration
No. 333-63619, of which $132,097,500 remain unsold as of the date hereof. A
filing fee of $147,500 was previously paid with the earlier registration
statement (and a filing fee of $483 was paid in connection with $1,399,996
of securities carried forward onto such filing from the registrant's
Registration Statement on Form S-3 (Registration No. 33-63687)).
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement is being filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended. The information included or
incorporated by reference in the Registration Statement on Form S-3 filed by
Federal Realty Investment Trust with the Securities and Exchange Commission,
File No. 333-63619, is incorporated by reference into this Registration
Statement.
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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 Rockville, Maryland, on this 12th day of August, 2002.
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Steven J. Guttman
-------------------------
Steven J. Guttman
Chairman of the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of the 12th day of August, 2002.
Signature Title
--------- -----
/s/ Steven J. Guttman Chairman of the Board and Chief Executive Officer
- -------------------------------------
Steven J. Guttman
/s/ Larry E. Finger Senior Vice President, Chief Financial Officer and Treasurer
- ------------------------------------- (Principal Financial and Accounting Officer)
Larry E. Finger
Trustee
- -------------------------------------
Dennis L. Berman
/s/ Kristin Gamble Trustee
- -------------------------------------
Kristin Gamble
/s/ Walter F. Loeb Trustee
- -------------------------------------
Walter F. Loeb
/s/ Mark S. Ordan Trustee
- -------------------------------------
Mark S. Ordan
Trustee
- -------------------------------------
Amy B. Lane
Trustee
- -------------------------------------
Joseph S. Vassalluzzo
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INDEX TO EXHIBITS
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities
being registered
23.1 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5.1)
The consent of Arthur Andersen LLP, the registrant's former independent public
accountants for the years ended December 31, 1999, 2000 and 2001, could not be
obtained after reasonable efforts and, accordingly, is being omitted pursuant to
Rule 437a promulgated under the Securities Act of 1933, as amended. The absence
of a consent from Arthur Andersen may limit recovery by investors on certain
claims. In particular, and without limitation, investors will not be able to
assert claims against Arthur Andersen under Section 11 of the Securities Act. In
addition, the ability of Arthur Andersen to satisfy any claims (including claims
arising from Arthur Andersen's provision of auditing and other services to us)
may be limited as a practical matter due to the recent criminal conviction and
other recent events regarding that firm.
- 3 -
Exhibit 5.1
August 12, 2002
Board of Trustees
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, Maryland 20852
Ladies and Gentlemen:
This firm has acted as counsel to Federal Realty Investment Trust, a
Maryland real estate investment trust (the "Trust"), in connection with the
Trust's Registration Statement on Form S-3 (the "Registration Statement"), filed
with the Securities and Exchange Commission pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), relating to the proposed public
offering of up to $26,419,500 in aggregate amount of one or more series of (i)
common shares of beneficial interest, $.01 par value per share (the "Common
Shares"), (ii) preferred shares of beneficial interest, $.01 par value per share
(the "Preferred Shares"), and (iii) unsecured debt securities (the "Debt
Securities" and, together with the Common Shares and Preferred Shares, the
"Securities"), all of which Securities may be offered and sold by the Trust from
time to time as set forth in the prospectus which forms a part of the
Registration Statement (the "Prospectus"), and as to be set forth in one or more
supplements to the Prospectus (each, a "Prospectus Supplement"). This opinion
letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5),
in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents (the "Documents"):
1. An executed copy of the Registration Statement.
2. An executed copy of the Trust's Registration Statement on Form S-3
(Reg. No. 333-63619) (the "Original Registration Statement"), and a
memorandum to the file confirming the effectiveness of the same.
3. The Declaration of Trust of the Trust, as certified by the Maryland
State Department of Assessments and Taxation on
Board of Trustees
Federal Realty Investment Trust
August 12, 2002
Page 2
May 3, 2002 and the Secretary of the Trust on the date hereof as
being complete, accurate and in effect.
4. The Bylaws of the Trust, as certified by the Secretary of the Trust
on the date hereof as being complete, accurate and in effect.
5. The Indenture, dated as of September 1, 1998, between the Trust and
First Union National Bank (the "Indenture").
6. Certain resolutions of the Board of Trustees of the Trust adopted by
written consent on August 12, 2002, as certified by the Secretary of
the Trust on the date hereof as being complete, accurate and in
effect, relating to, among other things, the filing of the
Registration Statement and arrangements in connection therewith.
In our examination of the Documents, we have assumed the genuineness of
all signatures, the legal capacity of all natural persons, the accuracy and
completeness of all of the Documents, the authenticity of all original of the
Documents and the conformity to authentic original documents of all of the
Documents submitted to us as copies (including telecopies). We have also assumed
the validity and constitutionality of each relevant statute, rule, regulation
and agency action covered by this opinion letter. In addition, we further have
assumed that none of the Securities will be issued in violation of the ownership
limit contained in the Declaration of Trust. As to matters of fact relevant to
the opinions expressed herein, we have relied on the representations and
statements of fact made in the Documents, we have not independently established
the facts so relied on, and we have not made any investigation or inquiry other
than our examination of the Documents. The opinions are given in the context of
the foregoing.
For purposes of this opinion letter, we have assumed that (i) at the
time of the offer, issuance and sale of any of the Securities, no stop order
suspending the effectivness of the Original Registration Statement will have
been issued and remain in effect; (ii) concurrently with the offer, issuance and
sale of any of the Securities, the Trust offers, issues and sells Securities
under the Original Registration Statement with an aggregate offering price at
least equal to the remaining amount available for sale under the Original
Registration Statement; (iii) the issuance, sale, amount and terms of the
Securities to be offered from time to time will be duly authorized and
established by proper action of the Board of Trustees of the Trust (each, a
"Board Action") and in accordance with the Trust's Declaration of Trust and
applicable Maryland law; (iv) prior to any issuance of Preferred Shares,
Board of Trustees
Federal Realty Investment Trust
August 12, 2002
Page 3
appropriate articles supplementary shall be filed for recordation with the
Maryland State Department of Assessments and Taxation (each, "Articles
Supplementary"), and (v) any Debt Securities will be issued pursuant to the
Indenture.
This opinion letter is based as to matters of law solely on applicable
provisions of Maryland law and the contract law of the State of New York (but
not including any statutes, ordinances, administrative decisions, rules, or
regulations of any political subdivision of the State of New York). We express
no opinion herein as to any other laws, statutes, regulations or ordinances or
as to compliance with the securities (or "blue sky") laws or the real estate
syndication laws of Maryland.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof:
(a) When (i) the Registration Statement has become effective under the
Act, (ii) upon due authorization by Board Action of an issuance of Common
Shares, and (iii) upon issuance and delivery of certificates for Common
Shares against payment therefor in accordance with the terms of such Board
Action and any applicable underwriting agreement or purchase agreement, and
as contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, or conversion or exchange of Preferred Shares that,
by their terms, are convertible into or exchangeable for Common Shares, and
receipt by the Trust of any additional consideration payable upon such
conversion, exchange or exercise, the Common Shares represented by such
certificates will be validly issued, fully paid and non-assessable.
(b) When (i) the Registration Statement has become effective under the
Act, (ii) a series of the Preferred Shares has been duly authorized and
established by applicable Board Action, in accordance with the terms of the
Declaration of Trust and applicable law, (iii) appropriate Articles
Supplementary have been filed, and (iv) the issuance of such Preferred
Shares has been appropriately authorized by applicable Board Action, and,
upon issuance and delivery of certificates for such series of Preferred
Shares against payment therefor in accordance with the terms of such Board
Action and any applicable underwriting or purchase agreement, and as
contemplated by the Registration Statement and/or the applicable Prospectus
Board of Trustees
Federal Realty Investment Trust
August 12, 2002
Page 4
Supplement, such Preferred Shares will be validly issued, fully paid and
non-assessable.
(c) When (i) the Registration Statement has become effective under the
Act, (ii) by applicable Board Action, the issuance of any series of Debt
Securities has been duly authorized and the terms thereof have been duly
established in accordance with the provisions of the Indenture, and (iii)
such Debt Securities have been duly authenticated by the Trustee and duly
executed and delivered on behalf of the Trust against payment therefor in
accordance with the terms of such Board Action, any applicable underwriting
agreement or purchase agreement, the Indenture and any applicable
supplemental indenture, and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Debt Securities will
constitute valid and binding obligations of the Trust, enforceable against
the Trust in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium, or
other laws affecting creditors' rights (including, without limitation, the
effect of statutory and other law regarding fraudulent conveyances,
fraudulent transfers, and preferential transfers) and as may be limited by
the exercise of judicial discretion and the application of principles of
equity, including, without limitation, requirements of good faith, fair
dealing, conscionability, and materiality (regardless of whether
enforcement is considered in a proceeding at law or in equity).
To the extent that the obligations of the Trust under the Indenture may
be dependent upon such matters, we assume for purposes of this opinion that the
Trustee is duly organized, validly existing, and in good standing under the laws
of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed, and delivered by the Trustee and constitutes the
valid and binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, with respect to
acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
Board of Trustees
Federal Realty Investment Trust
August 12, 2002
Page 5
The opinions expressed in Paragraph (c) above shall be understood to
mean only that if there is a default in performance of an obligation, (i) if a
failure to pay or other damage can be shown, and (ii) if the defaulting party
can be brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses and to the exceptions set
forth in Paragraph (c), the court will provide a money damage (or perhaps
injunctive or specific performance) remedy.
This opinion letter has been prepared for your use in connection with
the Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
