SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) November 18, 2002
Federal Realty Investment Trust
-------------------------------
(Exact name of registrant as specified in its charter)
Maryland 1-07533 52-0782497
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
1626 East Jefferson Street, Rockville, Maryland 20852-4041
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: 301/998-8100
Item 7. Financial Statements and Exhibits.
(c) Exhibits
The exhibits listed in the following index relate to an offering under the
Registrant's Registration Statements on Form S-3 (No. 333-97945 and No.
333-63619) and each is filed herewith for incorporation by reference in such
Registration Statements. The following table constitutes the exhibit index to
this Current Report on Form 8-K.
Exhibit No. Description
- ----------- -----------------------------------------------------------------
1.01 Underwriting Agreement, dated November 14, 2002, by and among the
Registrant and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Salomon Smith Barney Inc. and Wachovia Securities,
Inc., et al.
1.02 Pricing Agreement, dated November 14, 2002, by and between the
Registrants and Certain Underwriters named therein.
4.01 Form of 6 1/8% Note due November 15, 2007
5.01 Opinion of Shaw Pittman LLP relating to legality of 6 1/8% Notes
due November 15, 2007
8.01 Opinion of Shaw Pittman LLP relating to material tax matters
relating to the Registrant.
12.01 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges and of Ratios of Earnings to Combined Fixed Charges and
Preferred Share Dividends.
23.01 Consents of Shaw Pittman LLP (contained in the opinions filed as
Exhibits 5.01 and 8.01 hereto)
23.02 Omitted pursuant to Rule 437a under the Securities Act of 1933
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
FEDERAL REALTY INVESTMENT TRUST
Date: November 18, 2002 By: /s/ Larry E. Finger
-------------------------
Larry E. Finger
Senior Vice President and
Chief Financial Officer
Exhibit 1.01
Execution Copy
FEDERAL REALTY INVESTMENT TRUST
Debt Securities
---------------
Underwriting Agreement
November 14, 2002
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
From time to time Federal Realty Investment Trust, a Maryland real
estate investment trust (the "Company"), proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in substantially the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I to the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to such Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the
Underwriters of such Securities in the Pricing Agreement relating thereto will
act as representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.
This Underwriting Agreement shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to issue
and sell any of the Securities and the obligation of any of the Underwriters to
purchase any of the Securities shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telecopied communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-63619) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); the Registration Statement (as
defined below) and any post-effective amendments thereto, each in the
form heretofore delivered or made available to the Representatives,
excluding exhibits to such Registration Statement, but including all
documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form;
and including the registration statement increasing the size of the
offering (the "Rule 462(b) Registration Statement"), filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"),
which became effective upon filing; no other documents with respect to
the Registration Statement have heretofore been filed or transmitted
for filing with the Commission (other than prospectuses filed pursuant
to Rule 424(b) under the Act, each in the form heretofore delivered to
the Representatives); and no stop order suspending the effectiveness of
the Registration Statement, any post-effective amendments thereto or
the Rule 462(b) Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Registration
Statement or filed with the Commission pursuant to Rule 424 under the
Act is hereinafter called a "Preliminary Prospectus"); the various
parts of the Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the
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documents incorporated by reference in the prospectus contained in the
Registration Statement at the time such part of the registration
statement became effective but excluding Form T-1, each as amended at
the time such part of the Registration Statement became effective or
such part of the Rule 462(b) Registration Statement became effective,
are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment to the Registration Statement
shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; any reference
to the Prospectus as amended or supplemented shall be deemed to refer
to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing; all references herein to
information which is "contained" or "included" in the Registration
Statement, any Preliminary Prospectus, any Prospectus, any Prospectus
as amended or supplemented or any Rule 434 Prospectus (and all
references of like import) shall be deemed to mean and include all such
information which is incorporated or deemed to be incorporated by
reference therein; and if the Company elects to rely on Rule 434 under
the Act, any reference to the Prospectus shall be deemed to include,
without limitation, the form of prospectus and the abbreviated term
sheet, taken together, provided to the Underwriters by the Company in
reliance on Rule 434 under the Act (the "Rule 434 Prospectus");
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they
were made; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may
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be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder as of the applicable effective date as to the Registration
Statement and any amendment or supplement thereto, and do not and will
not, as of such effective date or filing, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) The Company has been duly organized and is validly existing and
in good standing as a real estate investment trust under the laws of
the State of Maryland, with full power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Company has interests in a number of entities
(collectively, the "Entities"), identified on Annex III, which have
been duly organized and are validly existing as corporations,
partnerships, limited liability corporations or joint ventures, as the
case may be, in good standing under the laws of the jurisdiction of
their organization (except for joint ventures, which have no good
standing certificate requirements), with full power and authority to
own, lease and operate their properties and conduct their business as
described in the Prospectus; except as otherwise denoted in Annex III
hereto, all of the equity interests in the Entities are owned by the
Company free and clear of all pledges, liens, encumbrances, claims,
security interests and defects; all of the issued and outstanding stock
of each Entity that is a corporation has been duly authorized and
validly issued and is fully paid and non-assessable; no options,
warrants or other rights to convert any obligations into partnership or
other ownership interests in the Entities are outstanding; and the
Company and the Entities are duly qualified to transact business in all
jurisdictions in which the Company and the Entities are transacting
business and in which the conduct of their respective businesses
requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
4
otherwise, or on the earnings or business affairs of the Company and
the Entities considered as one enterprise;
(e) Neither the Company nor any of the Entities has sustained since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
date as of which information is given in the Prospectus, there has not
been any change in the authorized, issued and outstanding capital
shares of the Company (except for subsequent issuances, if any, of
Common Shares pursuant to (x) the Company's Dividend Reinvestment and
Share Purchase Plan as in effect on the date of the applicable Pricing
Agreement, (y) any of the Company's employee or trustee benefits plans,
including upon exercise of share options granted pursuant thereto, as
such plans are in effect on the date of the applicable Pricing
Agreement or (z) the exercise of contractual rights existing on the
date of the applicable Pricing Agreement by the current and former
holders of partnership or other interests in certain of the "DownREIT"
and other Entities listed in Annex III hereto which may result in the
issuance of Common Shares of the Company) or any increase in the
consolidated long-term debt of the Company or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and the Entities taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, all of the issued capital shares of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable, and none of the outstanding capital shares of the
Company was issued in violation of any preemptive or other similar
rights of any securityholder of the Company;
(g) The Securities have been duly and validly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in
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the Prospectus as amended or supplemented with respect to such
Designated Securities;
(h) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated, will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Entities is a party or by
which the Company or any of the Entities is bound or to which any of
the property or assets of the Company or any of the Entities is
subject, nor will such action result in any violation of the provisions
of the Declaration of Trust or Bylaws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of the Entities or any
of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the transactions contemplated by
this Agreement or any Pricing Agreement or the Indenture, except such
as have been, or will have been prior to the Time of Delivery (as
defined in Section 4 hereof), obtained under the Act and the Trust
Indenture Act and except for any listing of the Designated Securities
on the New York Stock Exchange, Inc. ("NYSE") or other stock exchanges
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Entities is a party or of which any property of the Company or any of
the Entities is the subject which, if determined adversely to the
Company or any of the Entities, would individually or in the aggregate
have a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and the
Entities; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(j) The consolidated financial statements of the Company and the
Entities, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly
the financial position and the results of operations of the Company and
the Entities at the indicated dates and for the indicated periods. Such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied
throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made. The
summary financial and statistical data contained in the Prospectus
present fairly the information
6
shown therein and have been compiled on a basis consistent with the
consolidated financial statements incorporated by reference therein;
(k) The Company and the Entities have good and marketable title to,
or valid and enforceable leasehold estates in, all items of real and
personal property referred to in the Prospectus as owned or leased by
the Company or any of the Entities, in each case free and clear of all
pledges, liens, encumbrances, claims, security interests and defects,
other than those referred to in the Prospectus or which are not
material in amount;
(l) The Company and the Entities have filed all federal, state,
local and foreign income tax returns which have been required to be
filed, or appropriate extensions for such filings have been obtained as
required by law, and all federal, state, local and foreign taxes of the
Company and the Entities have been paid except such taxes as are not
yet due or are being contested in good faith;
(m) The Company and each of the Entities hold all material licenses,
certificates and permits from governmental authorities which are
necessary to the conduct of their respective businesses; and neither
the Company nor any of the Entities has infringed any patents, patent
rights, trade names, trademarks or copyrights, which infringement is
material to the business of the Company;
(n) To our knowledge, Arthur Andersen LLP, which audited the
consolidated balance sheets of the Company and subsidiaries as of
December 31, 2000, and 2001 and the related consolidated statements of
operations, common shareholders' equity, and cash flows for each of the
years in the three year period ended December 31, 2001, filed with the
Commission as part of, or incorporated by reference in, the
Registration Statement and Prospectus, was, at all times until its
replacement as the Company's auditor in June 2002, an independent
public accountant as required by the Act and the rules and regulations
of the Commission promulgated thereunder;
(o) The conditions for use of registration statements on Form S-3
set forth in the General Instructions on Form S-3 have been satisfied
and the Company is entitled to use such form for the transaction
contemplated herein;
(p) Although the Company is aware of the presence of hazardous
substances, hazardous materials, toxic substances or waste materials
("Hazardous Materials") on certain of its properties, nothing has come
to the attention of the Company which, at this time, would lead the
Company to believe that the presence of such Hazardous Materials, when
considered in the aggregate, would materially adversely affect the
financial condition of the Company. In connection with the construction
on or operation and use of the properties owned or leased by the
Company or the Entities, the Company represents that, as of the date of
this Agreement, it has no knowledge of any material failure by the
Company or the Entities to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative
and judicial orders relating to the
7
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials; and
(q) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company
has met the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements; and the Company is neither an "investment company" nor a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least 48 hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
federal or other immediately available funds to an account at a bank located in
one of the 48 contiguous states of the United States of America (which account
shall be designated by the Company upon at least 48 hours' prior notice to the
Representatives), all in the manner and at the place and time and date specified
in such Pricing Agreement or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) If the Company does not elect to rely on Rule 434 under the Act,
immediately following execution and delivery of the applicable Pricing
Agreement, to prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus as amended or
supplemented pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time
as may be required by Rule 424(b), or if the Company elects to rely on
Rule 434 under the Act, immediately following execution and delivery of
the applicable Pricing Agreement, to prepare an abbreviated term sheet
relating to the Designated Securities in a form approved by the
Representatives that complies with the requirements of Rule 434 under
the Act and to file such form of Rule 434
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Prospectus complying with Rule 434(c)(2) of the Act pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Designated Securities which shall be
reasonably disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Representatives with copies thereof;
to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required in connection with
the offering or sale of such Designated Securities, and during such
same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Prospectus as amended
or supplemented, of the suspension of the qualification of such
Designated Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus as amended or supplemented or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
Prospectus as amended or supplemented relating to the Designated
Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Promptly to furnish to the Underwriters in New York City with
copies of the Prospectus, as amended or supplemented, in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Designated Securities and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
9
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus as amended or supplemented is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule
158(c)), an earnings statement of the Company (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of
the Company Rule 158);
(e) During the period beginning on and including the date of the
Pricing Agreement for such Designated Securities and continuing through
and including the earlier of (i) the termination of trading
restrictions for such Designated Securities, as notified to the Company
by the Representatives and (ii) the Time of Delivery for such
Designated Securities, but in no event later than 90 days from the date
of the Pricing Agreement, not to offer, sell, contract to sell or
otherwise issue any debt securities of the Company which mature more
than one year after such Time of Delivery and which are substantially
similar to such Designated Securities, without the prior written
consent of the Representatives;
(f) To use the net proceeds received by it from the sale of the
Designated Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(g) To qualify as a "real estate investment trust" under the Code,
and to use its best efforts to continue to meet the requirements to
qualify as a "real estate investment trust."
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto (including each abbreviated term sheet
delivered by the Company pursuant to Rule 434 under the Act) and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement Among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any blue sky and legal investment surveys and
any other documents in
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connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the blue sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, Section 8 and Section 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in, or
incorporated by reference from this Agreement into, the Pricing Agreement
relating to such Designated Securities are, at and as of the Time of Delivery
for such Designated Securities, true and correct, to the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and to the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been or shall be filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Sidley Austin Brown & Wood LLP, counsel for the Underwriters,
shall have furnished to the Representatives such opinion or opinions,
dated the Time of Delivery for such Designated Securities, with respect
to the organization of the Company, the validity of the Indenture, the
Registration Statement, the Prospectus as amended or supplemented and
other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters
(in rendering such opinion, Sidley Austin Brown & Wood LLP may rely, as
to all matters arising under or governed by the laws of the State of
Maryland, on the opinion of Shaw Pittman LLP);
11
(c) Shaw Pittman LLP, counsel for the Company, shall have furnished
to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, in substantially the form and
substance attached hereto as Schedule A.
(d) In addition to the above opinion, the Representatives shall have
received the opinion or opinions of Shaw Pittman LLP, Tax Counsel to
the Company, dated the Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the
effect that (1) the Company qualified as a real estate investment trust
("REIT") under the Code for its taxable years ending through December
31, 2001, (2) the Company is organized in conformity with the
requirements for qualification as a REIT under the Code, and its
current method of operation will enable it to meet the requirements for
qualification as a REIT for the current taxable year and for future
taxable years; and (3) the discussion in (x) the Prospectus Supplement
dated November 14, 2002 under the caption "Certain Federal Income Tax
Considerations," and (y) the Company's Current Report on Form 8-K filed
with the Commission on November 13, 2002 (hereafter, the "Company's
Form 8-K") under the caption "Federal Income Tax Consequences" which is
incorporated by reference into the Prospectus Supplement, to the extent
that they discuss matters of law or legal conclusions or purport to
describe certain provisions of the federal tax laws, are correct
summaries of the matters discussed therein;
(e) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities,
Grant Thornton LLP, the independent accountants of the Company, shall
have furnished to the Underwriters a "comfort letter" in form and
substance satisfactory to the Representatives;
(f) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such Designated Securities
the Chief Executive Officer or Chief Operating Officer and the Chief
Financial Officer shall have furnished to the Representatives a
certificate substantially in the form of Annex II hereto;
(g) At the Time of Delivery for such Designated Securities, the
Designated Securities shall be rated at least Baa2 by Moody's
Investor's Service Inc. and BBB by Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc., and the Company shall have delivered to
the Representatives a letter dated the Time of Delivery, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Designated Securities have such ratings;
(h) (i) Neither the Company nor any of the Entities shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity,
12
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended or supplemented there shall not have been any
change in the authorized, issued and outstanding capital stock of the
Company or increase in long-term debt of the Company or any of the
Entities or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company
and the Entities, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred shares by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred shares;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a material suspension or material limitation in trading
in securities generally on the NYSE; (ii) a suspension or material
limitation in trading in the Company's securities on the NYSE; (iii) a
general moratorium on commercial banking activities in New York
declared by either federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance
services in the United States; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war or other calamity or
crisis if the effect of any such event specified in this clause (iv) in
the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented;
(k) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of Prospectuses as amended
or supplemented; and
(l) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
dated such Time of Delivery as to the
13
accuracy of the representations and warranties of the Company herein at
and as of the date of such certificate, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior
to the date of such certificate, as to the matters set forth in
subsections (a) and (h) of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any amendment or
supplement thereto (including the information deemed to be a part of
the Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities. Notwithstanding
the foregoing, the indemnification contained in this paragraph (a) with
respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter to the extent that any such losses, claims, damages or
liabilities result from the fact that such Underwriter sold Designated
Securities to any person as to whom it shall be established that a copy
of the Prospectus as then amended or supplemented (excluding documents
incorporated therein by reference) was not delivered or sent to such
person within the time required by the Act and the rules and
regulations of the Commission thereunder and such losses, claims,
damages or liabilities of such Underwriter result from an untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact contained in such Preliminary Prospectus which was
identified to such Underwriter and was corrected in the Prospectus
(excluding documents incorporated by reference), provided that the
Company has complied with Section 5(c) hereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may
14
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any amendment or supplement thereto (including
the information deemed to be a part of the Registration Statement
pursuant to Rule 434 under the Act, if applicable), or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
any preliminary prospectus supplement, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating
to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by
such Underwriter through the Representatives expressly for use therein;
and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel
(unless separate counsel is required due to conflict of interest) or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromises or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include
15
a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear
to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact contained in any Registration Statement, the Prospectus or any
amendment or supplement thereto relates to information supplied by the
Company on the one hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged
16
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and trustee of the Company and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase at
the Time of Delivery under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase
such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the time of Delivery for such
Designated Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or
in any other documents or arrangements, and the Company agrees to file
promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby
be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of such Designated Securities
which remains unpurchased does not exceed one-tenth of the aggregate
principal amount of the Designated Securities to be purchased at the
Time of Delivery, then the Company
17
shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such
Underwriter agreed to purchase at the Time of Delivery under the
Pricing Agreement relating to such Designated Securities and, in
addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the principal amount of Designated Securities
which such Underwriter agreed to purchase under such Pricing Agreement)
of the Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of Designated Securities which
remains unpurchased exceeds one-tenth of the aggregate principal amount
of the Designated Securities to be purchased at the Time of Delivery,
as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then, in the case of a failure
to purchase Designated Securities at the Time of Delivery, the Pricing
Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or trustee or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof. If this Agreement shall be
terminated as a result of any of the conditions set forth in Section 7 hereof
(other than Section 7(j)(i), (iii) or (iv)) not being satisfied the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including reasonable fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
18
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail,
overnight courier, hand delivery or facsimile transmission to the address of the
Representatives as set forth in the applicable Pricing Agreement; and if to the
Company shall be delivered or sent by mail, overnight courier, hand delivery or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Legal Department; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall also be delivered
or sent by mail, overnight courier, hand delivery or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex or facsimile transmission constituting such Questionnaire, which address
will be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and trustees of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing, Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
19
If the foregoing is in accordance with your understanding, please sign
and return this Agreement to us.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
-----------------------------------
Name:
Title:
20
SCHEDULE A
(i) The Company is a real estate investment trust validly existing
and in good standing (as of the date of the applicable good standing
certificate referred to in such opinion) under the laws of the State of
Maryland and has the trust power and trust authority under Title 8 of
the Corporations and Associations Article of the Annotated Code of
Maryland (the "Maryland REIT Law"), its Declaration of Trust and its
Bylaws to own its current properties and to conduct its business as
described in the Prospectus as amended and supplemented in relation to
the Designated Securities. The Company is registered, qualified or
authorized to transact business as a foreign entity in the respective
states specified in such opinion as of the respective dates listed
therein;
(ii) Street Retail, Inc., a Maryland corporation ("SRI"), is validly
existing and in good standing (as of the date of the applicable good
standing certificate specified in such opinion) under the laws of the
State of Maryland and has the corporate power and corporate authority
under the Maryland General Corporation Law, the SRI Articles and the
SRI Bylaws to own its current properties and to conduct its business as
described in the Prospectus as amended and supplemented in relation to
the Designated Securities.
(iii) The Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(iv) The Designated Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to the Agreement and the
Pricing Agreement and, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment therefor in
accordance with the provisions of the Agreement and such Pricing
Agreement, will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, enforceable against
the Company in accordance with their terms;
(v) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery
by each other party thereto, constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms;
(vi) The Indenture has been duly qualified under the Trust Indenture
Act;
(vii) The Designated Securities and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(viii) The Registration Statement has been declared effective under
the Act; the required filing of the Prospectus as amended and
supplemented in relation to the applicable Designated Securities
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no proceeding
for that purpose has been instituted or is pending or threatened by the
Commission. The Company meets the requirements for use of Form S-3 with
respect to the issuance and sale of the Designated Securities;
(ix) The execution, delivery and performance as of the date of such
opinion by the Company of the Agreement and the Pricing Agreement with
respect to the Designated Securities and the issuance and sale of the
Designated Securities being issued on the date of such opinion do not
(i) violate the Maryland REIT Law, (ii) violate the Company's
Declaration of Trust or Bylaws, (iii) to such counsel's knowledge,
violate any applicable law, rule, regulation, order, judgment or decree
of any Maryland agency or court, or (iv) breach or constitute a default
under the agreements listed in Schedule A-1 to the Agreement (other
than with respect to the compliance by the Company with the financial
and numerical covenants contained therein, as to which such counsel
need express no opinion);
(x) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, and the
Trustee's Statement of Eligibility on Form T-1, as to which such
counsel need express no opinion), complied as to form in all material
respects with the requirements of the Act and the rules and regulations
of the Commission thereunder; if applicable, the Rule 434 Prospectus
complies as to form in all material respects with the requirements of
Rule 434 under the Act;
(xi) The documents incorporated by reference in the Prospectus as
amended and supplemented in relation to the applicable Designated
Securities (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which such
counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act or the Exchange
Act, as
22
applicable, and the rules and regulations of the Commission thereunder;
and
(xii) Except for such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the Act and
the Trust Indenture Act, and except for consents, approvals,
authorizations, registrations or qualifications as may be required
under applicable state securities or real estate syndication laws (as
to which such counsel need express no opinion) in connection with the
offer and sale of the Designated Securities, no consent, approval,
authorization or order of, or filing or registration with, the
Commission or any Maryland court or governmental agency or body is
required to be obtained or made by the Company for the issuance of the
Designated Securities or the performance as of the date of such opinion
of the obligations contained in the Designated Securities and in the
Agreement and the Pricing Agreement by the Company;
The opinion of Shaw Pittman LLP shall also state that on the basis
of its activities as counsel to the Company in connection with the
Registration Statement and the Prospectus that no facts have come to
such counsel's attention which have caused them to believe that (i) the
Registration Statement or any amendments thereto, as of their
respective effective dates, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the
Prospectus as amended and supplemented, or any further amendments or
supplements thereto, as of their respective issue dates or as of the
date of such opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (iii) there are any
legal or governmental proceedings pending or threatened against the
Company or any of its subsidiaries that are required to be disclosed in
the Registration Statement or the Prospectus as amended and
supplemented, other than those disclosed therein; provided that in
making the foregoing statements (which shall not constitute an
opinion), such counsel need not express any view as to the financial
statements and supporting schedules and other financial information and
data included in or omitted from the Registration Statement or the
Prospectus as amended and supplemented;
Qualifications to the Opinion:
o In rendering such opinions, counsel may rely as to matters of fact on
representations of the Company made in the Agreement and the Pricing
Agreement, certificates of responsible officers of the Company and public
officials.
23
o The enforceability of the documents referred to in the opinion may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, voidable preference, rearrangement,
liquidation, conservatorship or other similar laws relating to, or
affecting the enforcement of, creditors' rights and remedies generally,
now or hereafter in effect.
o The enforceability of any or all of the provisions of the documents
referred to in the opinion is subject to such laws, legal and equitable
principles, principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity), principles of public policy, statutory provisions,
procedural requirements and/or exercise of judicial discretion as may
limit the specific enforcement or existence of certain rights or remedies
of the party seeking to enforce them.
o The enforceability of any or all of the provisions of the documents
referred to in the opinion may be limited to the extent that (i) remedies
are sought with respect to a breach that a court concludes is not material
or does not adversely affect the party seeking to enforce the provision or
provisions of such documents, or (ii) a court concludes that it would be
unreasonable or unconscionable to enforce such documents.
o Counsel need not express any opinion as to the validity or enforceability
of (i) the indemnification and contribution provisions of the documents
referred to in the opinion, to the extent that the validity or
enforceability of such provisions may be limited by the federal securities
laws, (ii) the severability provisions contained in such documents, or
(iii) the choice-of-law provisions contained in such documents as to which
laws shall be deemed to govern. The validity or enforceability of such
documents may also be limited by the exercise of judicial discretion
regarding the entitlement to attorneys' fees and other costs.
o Such counsel's opinions shall be based upon and are limited to the
relevant laws of the United States of America, the Maryland REIT Law and
the Maryland General Corporation Law, in each case excluding the choice of
law provisions thereof, except that the opinions rendered in paragraphs
(iv) and (v) above, to the extent that they address enforceability of the
documents referred to therein or the effect of New York law, are also
based upon and are limited to the laws of the State of New York, excluding
the choice of law provisions thereof. Such counsel need not render any
opinion with respect to the law of any other jurisdiction or any opinion
as to whether a federal or state court outside of the State of New York
would give effect to the choice of New York law provisions in such
documents.
o Such counsel's opinions as to the qualification and good standing of the
Company or SRI may be based solely upon good standing certificates with
24
respect to such entities issued by the applicable state regulatory
authority or authorities, and may be rendered as of the date of the
applicable certificate.
o Any references herein to our knowledge or words of similar effect shall
mean that, in the course of our representation of the Company, no
information has come to the attention of our attorneys who have performed
substantive legal services in connection with this transaction that gives
such attorneys actual current knowledge that any such opinions are not
accurate. In rendering the opinion, we have not undertaken any independent
investigation relating to such matters or communicated the details of this
transaction to all of our attorneys who may have performed services for
the Company or any other person or entity.
o Except as agreed by counsel in writing, the opinion shall be solely for
the benefit of the addressees thereof and may be relied upon solely by
such addressees for the purposes for which it is being furnished.
Notwithstanding the foregoing, Sidley Austin Brown & Wood LLP, counsel to
the Underwriters, may rely on the opinion as to all matters of the
Maryland REIT Law and the Maryland General Corporation Law. Without
counsel's express permission, the opinion letter may not be used,
circulated, quoted or otherwise referred to for any purpose except as
stated therein.
25
SCHEDULE A-1
Indenture dated December 13, 1993, related to the Company's 7.48%
Debentures due August 15, 2026; 8 7/8% Senior Notes due January 15, 2000;
8% Notes due April 21, 2002; 6 5/8% Notes due 2005; 6.82% Medium Term
Notes due August 1, 2027; 6.74% Medium Term Notes due March 10, 2004; and
6.99% Medium Term Notes due March 10, 2006, filed with the Commission on
December 13, 1993 as Exhibit 4(a) to the Company's Registration Statement
on Form S-3 (File No. 33-51029).
Indenture dated September 1, 1998 related to the Company's 8.75% Notes due
December 1, 2009 filed as Exhibit 4(a) to the Company's Registration
Statement on Form S-3 (File No. 333-63619).
Credit Agreement Dated as of December 19, 1997, and as subsequently
amended, by and among the Company, as Borrower, The Financial Institutions
Party Thereto and Their Assignees Under Section 13.5.(a), as Lenders,
Corestates Bank, N.A., as Syndication Agent, First Union National Bank, as
Administrative Agent and as Arranger, and Wells Fargo Bank, as
Documentation Agent and as Co-Arranger.
Term Loan Agreement, dated as of December 22, 1998, and as subsequently
amended, by and among the Company, as Borrower, the Financial Institutions
Party Thereto and Their Assignees Under Section 13.5.(d), as Lenders,
Commerzbank Aktiengesellschaft, New York Branch as Syndication Agent, PNC,
National Association, as Administrative Agent and Fleet National Bank, as
documentation agent.
Building Loan Agreement, dated as of April 17, 2001, and as subsequently
amended, by and among FRIT San Jose Town and Country Village LLC, San Jose
Residential, Inc. and SRI jointly and severally as Borrower, Commerzbank
AG, New York Branch, Fleet National Bank, Bayerische Hypo-Und Vereinsbank
AG, New York Branch and the Other Lenders named therein.
ANNEX I
Pricing Agreement
[o], 2002
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Federal Realty Investment Trust, a Maryland real estate investment
trust (the "Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November [o], 2002 (the
"Underwriting Agreement"), between the Company on the one hand and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney Inc., Wachovia
Securities, Inc., Commerzbank Capital Markets Corp., Banc of America Securities
LLC, BMO Nesbitt Burns Corp., Fleet Securities, Inc., HVB Capital Markets, Inc.,
Wells Fargo Brokerage Services, LLC and PNC Capital Markets, Inc. on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedules II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be
a representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall
be deemed to refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representative
designated to act on behalf of the Representatives pursuant to Section 12 of the
Underwriting Agreement is Merrill Lynch, Pierce, Fenner & Smith Incorporated,
and the Representatives designated to act on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the Time of Delivery
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities (as defined in Schedule II
hereto) set forth opposite the name of such Underwriter in Schedule I hereto.
The obligations of the Underwriters under this Pricing Agreement and
the Underwriting Agreement incorporated herein are several and not joint.
This Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
If the foregoing is in accordance with your understanding, please sign
and return this Pricing Agreement to us, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Pricing Agreement and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
-----------------------------------------
Name:
Title:
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
------------------------------------
Name:
Title:
3
SCHEDULE I
Principal Amount of
Underwriter Designated Securities
----------- ---------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ XX,XXX,XXX
Salomon Smith Barney Inc. XX,XXX,XXX
Wachovia Securities, Inc. XX,XXX,XXX
Commerzbank Capital Markets Corp. XX,XXX,XXX
Banc of America Securities LLC XX,XXX,XXX
BMO Nesbitt Burns Corp. XX,XXX,XXX
Fleet Securities, Inc. XX,XXX,XXX
HVB Capital Markets, Inc. XX,XXX,XXX
Wells Fargo Brokerage Services, LLC XX,XXX,XXX
PNC Capital Markets, Inc. --------------
Total $ 150,000,000
===========
SCHEDULE II
Title of Designated Securities:
[o]% Notes due November [o], 20[o]
Aggregate principal amount:
$[o]
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest from November [o], 2002 to November [o], 2002
Purchase Price by Underwriters:
[o]% of the principal amount of the Designated Securities, plus accrued
interest from November [o], 2002 to November [o], 2002
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture dated as of September 1, 1998, between the Company and
Wachovia Bank, National Association (formerly, First Union National
Bank), as Trustee
Maturity:
[o], 20[o]
Interest Rate:
[o]%
Interest Payment Dates:
[o] and [o], commencing [o], 2003
Redemption Provisions:
The Designated Securities may be redeemed at any time, in whole or in
part, at a redemption price as described in the Prospectus Supplement
Sinking Fund Provisions:
None
Defeasance provisions:
The defeasance and covenant defeasance provisions of the Indenture
apply to the Designated Securities
Time of Delivery:
November [o], 2002
Closing Location:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Names and addresses of Representatives:
Designated Representatives:
Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Salomon Smith
Barney Inc., Wachovia Securities, Inc., Commerzbank Capital Markets
Corp., Banc of America Securities LLC, BMO Nesbitt Burns Corp., Fleet
Securities, Inc., HVB Capital Markets, Inc., Wells Fargo Brokerage
Services, LLC and PNC Capital Markets, Inc.
Address for Notices, etc.:
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Attn: [[o]]
[Other Terms]*:
- -----------
*A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
2
ANNEX II
CERTIFICATE OF THE CHIEF EXECUTIVE OFFICER
AND CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 7(f) OF THE UNDERWRITING AGREEMENT
I, Steven J. Guttman, the Chairman, Chief Executive Officer and
Trustee, and I, Larry E. Finger, the Senior Vice President and Chief Financial
Officer, of Federal Realty Investment Trust, certify that:
1. the Annual Report on Form 10-K for the year ended December 31, 2001,
and Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2002, June 30, 2002 and September 30, 2002 (collectively,
the "Reports"), fully comply with the requirements of Section 13(a)
or 15(d) of the Securities and Exchange Act of 1934; and
2. the information contained in each Report fairly presents, in all
material respects, the financial condition and results of operations
of Federal Realty Investment Trust as of its date of filing with the
Securities and Exchange Commission.
November ____, 2002
------------------------------
Steven J. Guttman
Chairman, Chief Executive Officer
and Trustee
------------------------------
Larry E. Finger
Senior Vice President and Chief
Financial Officer
ANNEX III
Company's Direct or Indirect
FEDERAL REALTY INVESTMENT TRUST Ownership Interest
- ------------------------------- ------------------
FR Associates Limited Partnership ("FR") 99%
Andorra Associates 99% (1% FR)
Governor Plaza Associates 99% (1% FR)
Shopping Center Associates 99% (1% FR)
Berman Enterprises II Limited Partnership 99% (1% FR)
FRIT Escondido Promenade, LLC 70%
FRIT Leasing & Development Services, Inc. 100% voting stock
Congressional Plaza Associates 55.7065%
FR Pike 7 Limited Partnership (DownREIT) 99%
Federal Realty Partners L. P. (Master DownREIT- 476,669 units outstanding - 264,952 40 units (FedRP Inc.)
units have been redeemed) 40 units (FRLP Inc.)
Federal Realty Partners, Inc. 100% voting stock
Loehmann's Plaza Limited Partnership (DownREIT - 250,000 units outstanding) 60,000 units (FedRP Inc.)
FRLP, Inc. 100% voting stock
FR Leesburg Plaza, LLC 100%
FR Leesburg Plaza, LP (DownREIT-352,500 total units issued - 7,816 units have 214,500 units (LLC)
been redeemed)
FRIT Property Services, Inc. (f/k/a Terranomics Retail Services, Inc. f/k/a TRS 100% nonvoting stock
Acquisition, Inc.)
Ravenswood Development Services, Inc. 100% nonvoting stock
Federal Realty Management Services, Inc. 100% voting stock
FR Federal Plaza, Inc. 100% voting stock
FR Federal Plaza, LLC 100% (FedPlaza Inc.)
Street Retail, Inc. 100% voting stock
STREET RETAIL, INC. ("SRI")
- ---------------------------
SRI Old Town, LLC 100%
Street Retail Forest Hills I, LLC 100%
Street Retail Forest Hills II, LLC 100%
Street Retail Tempe I, LLC 85%
Street Retail West GP, Inc. ("SRWGP") 100% voting stock
Street Retail West I, L.P. 90% (10% SRI)
Street Retail West II, L.P. 90% (10% SRI)
Street Retail West 3, L.P. 90% (10% SRI)
Street Retail West 4, L.P. 90%
Street Retail West 6, L.P. 90%
Street Retail West 7, L.P. 90%
Street Retail West 10, L.P. 90%
Street Retail San Antonio, LP .1% (SRI San Anton)
99.9% (SRI Texas)
SRI San Antonio, Inc. (f/k/a Dim Sum, Inc. 100% voting stock
f/k/a FR Acquisition Holding Co., Inc.)
SRI Texas, Inc. 100% voting stock
JS&DB, Inc. 100% voting stock
SRI Holding Company, Inc. 100% nonvoting stock
Street Retail West 9, L.P. 90% (SRI Holding)
FRIT San Jose Town and Country Village, LLC 100%
San Jose Residential, Inc. 100% nonvoting stock (LLC)
Santana Row Services, Inc. 100% voting
Santana Row ROF, Inc. 100% voting
La Rive Gauche San Jose, LLC 37.5%
Straits Santana Row, LLC 90%
Blowfish SR, LLC 30%
Village Cafe Santana Row, LLC 49%
Yankee Pier Santana Row, LLC 75%
Pizza Antica, LLC 20%
Santana Row Association, a California non-profit mutual benefit corporation
2
Exhibit 1.02
Pricing Agreement
-----------------
November 14, 2002
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERAGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
Federal Realty Investment Trust, a Maryland real estate investment
trust (the "Company"), proposes, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated November 14, 2002 (the
"Underwriting Agreement"), between the Company on the one hand and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney Inc., Wachovia
Securities, Inc., Commerzbank Capital Markets Corp., Banc of America Securities
LLC, BMO Nesbitt Burns Corp., Fleet Securities, Inc., HVB Capital Markets, Inc.,
Wells Fargo Brokerage Services, LLC and PNC Capital Markets, Inc. on the other
hand, to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be
a representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representative designated to act on behalf of the Representatives pursuant to
Section 12 of the
Underwriting Agreement is Merrill Lynch, Pierce, Fenner & Smith Incorporated,
and the Representatives designated to act on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the Time of Delivery
and place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities (as defined in Schedule II
hereto) set forth opposite the name of such Underwriter in Schedule I hereto.
The obligations of the Underwriters under this Pricing Agreement and
the Underwriting Agreement incorporated herein are several and not joint.
This Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
If the foregoing is in accordance with your understanding, please sign
and return this Pricing Agreement to us, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Pricing Agreement and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
WACHOVIA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BMO NESBITT BURNS CORP.
FLEET SECURITIES, INC.
HVB CAPITAL MARKETS, INC.
WELLS FARGO BROKERGE SERVICES, LLC
PNC CAPITAL MARKETS, INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By:
---------------------------------------
Name:
Title:
3
SCHEDULE I
Principal Amount of
Underwriter Designated Securities
- ------------------------------------- ---------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated .............................. $42,500,000
Salomon Smith Barney Inc............................... 42,500,000
Wachovia Securities, Inc............................... 42,500,000
Commerzbank Capital Markets Corp....................... 6,000,000
Banc of America Securities LLC......................... 3,000,000
BMO Nesbitt Burns Corp................................. 3,000,000
Fleet Securities, Inc.................................. 3,000,000
HVB Capital Markets, Inc............................... 3,000,000
Wells Fargo Brokerage Services, LLC.................... 3,000,000
PNC Capital Markets, Inc............................... 1,500,000
------------
Total............................................ $150,000,000
============
SCHEDULE II
Title of Designated Securities:
6 1/8% Notes due November 15, 2007
Aggregate principal amount:
$150,000,000
Price to Public:
99.764% of the principal amount of the Designated Securities, plus accrued
interest from November 19, 2002 (if settlement occurs after that date)
Purchase Price by Underwriters:
99.164% of the principal amount of the Designated Securities, plus accrued
interest from November 19, 2002 (if settlement occurs after that date)
Specified funds for payment of purchase price:
Wire transfer of immediately available funds
Indenture:
Indenture dated as of September 1, 1998, between the Company and Wachovia
Bank, National Association (formerly, First Union National Bank), as
Trustee
Maturity:
November 15, 2007
Interest Rate:
6 1/8%
Interest Payment Dates:
May 15 and November 15 of each year, commencing May 15, 2003
Redemption Provisions:
The Designated Securities may be redeemed at any time, in whole or in
part, at a redemption price as described in the Prospectus Supplement
Sinking Fund Provisions:
None
Defeasance provisions:
The defeasance and covenant defeasance provisions of the Indenture apply to
the Designated Securities
Time of Delivery:
9:00 a.m., New York City time, on November 19, 2002
Closing Location:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Names and addresses of Representatives:
Designated Representatives:
Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Salomon Smith
Barney Inc., Wachovia Securities, Inc., Commerzbank Capital Markets
Corp., Banc of America Securities LLC, BMO Nesbitt Burns Corp., Fleet
Securities, Inc., HVB Capital Markets, Inc., Wells Fargo Brokerage
Services, LLC and PNC Capital Markets, Inc.
Address for Notices, etc.:
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Attn: Real Estate Investment Banking
3
[Face of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
No. $150,000,000
--------
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
$1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate
investment trust (herein referred to as the "Company," which term includes any
successor corporation under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to Cede & Co. or registered assigns
the principal sum of One Hundred Fifty Million Dollars on November 15, 2007 (the
"Stated Maturity Date") or the date fixed for earlier redemption (the
"Redemption Date," and together with the Stated Maturity Date with respect to
principal repayable on such date, the "Maturity Date"), and to pay interest
thereon from November 19, 2002 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year (each, an "Interest Payment Date"), commencing May 15,
2003, at the rate of 6 1/8% per annum, until the principal hereof is paid or
duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Holder in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be May 1 or November 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date at
the office or agency of the Company maintained for such purpose; provided,
however, that such interest may be paid, at the Company's option, by mailing a
check to such Holder at its
registered address or by transfer of funds to an account maintained by such
Holder within the United States. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee referred to on the reverse hereof, notice whereof shall be given to
Holders of Notes of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Stated Maturity Date
or the principal of, premium, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Note payable on the Redemption Date will
be paid against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will include interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including November 19, 2002, if
no interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be. If any Interest Payment Date or
the Maturity Date falls on a day that is not a Business Day, as defined below,
principal, premium, if any, and/or interest payable with respect to such
Interest Payment Date or Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or Maturity
Date, as the case may be. "Business Day" means any day, other than a Saturday or
Sunday, on which banks in the City of New York and the City of Charlotte, State
of North Carolina, are not required or authorized by law or executive order to
close.
All payments of principal, premium, if any, and interest in
respect of this Note will be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been
executed by the Trustee by manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
[This space intentionally left blank]
2
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: November __, 2002
FEDERAL REALTY INVESTMENT TRUST
By:
-----------------------------------
Steven J. Guttman
Chief Executive Officer and
Trustee
Attest:
- --------------------------------
Dawn M. Becker
Vice President, General Counsel
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note of the series designated therein referred to in the
within-mentioned Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
[Reverse of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of September 1, 1998 (herein called the
"Indenture") between the Company and Wachovia Bank, National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Note is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the duly authorized series of
Securities designated as "6 1/8% Notes due November 15, 2007" (collectively, the
"Notes"), and the aggregate principal amount of the Notes to be issued under
such series is limited to $150,000,000 (except for Notes authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other Notes). All
terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Notes are subject to redemption at any time, in whole or
in part, at the election of the Company, at a redemption price equal to the
greater of (1) 100% of the principal amount of the Notes being redeemed, and (2)
as determined by the Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued as of the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below) plus 37.5 basis points plus, in each case,
accrued interest thereon to the Redemption Date; provided, however, that
installments of interest on this Note whose Stated Maturity Date is on or prior
to such Redemption Date will be payable to the Holder of this Note, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
As used herein:
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the rate per year equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Redemption
Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the
notes to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
remaining term of such notes.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (1) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee
obtains fewer than three such Reference Treasury Dealer quotations, the
average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Company.
"Reference Treasury Dealer" means (1) each of Merrill, Lynch,
Pierce, Fenner & Smith Incorporated, Salomon Smith Barney Inc. and
Wachovia Securities, Inc., and their respective successors; provided,
however, that if any of the foregoing cease to be a primary U.S.
Government securities dealer (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer; and (2) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 5:00 p.m. New York City time, on the third
Business Day preceding such Redemption Date, together in the case of
any such redemption with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Note whose
Stated Maturity Date is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor
Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of not
less than a majority of the aggregate principal amount of the Outstanding
Securities, on behalf of the Holders of all such Securities, to waive compliance
by the Company with certain provisions of the Indenture.
2
Furthermore, provisions in the Indenture permit the Holders of
not less than a majority of the aggregate principal amount, in certain
instances, of the Outstanding Securities of any series to waive, on behalf of
all of the Holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
The Company will not, and will not permit any Subsidiary to,
incur any Debt (as defined below) if, immediately after giving effect to the
incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles is greater than 65% of the sum of (without
duplication) (i) Total Assets as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Securities and Exchange Commission
(or, if such filing is not permitted under the Securities Exchange Act of 1934,
with the Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt.
In addition to the foregoing limitation on the incurrence of
Debt, the Company will not, and will not permit any Subsidiary to, incur any
Debt secured by any mortgage, lien, charge, pledge, encumbrance or security
interest of any kind upon any of the property of the Company or any Subsidiary
if, immediately after giving effect to the incurrence of such Debt and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a consolidated basis
which is secured by any mortgage, lien, charge, pledge, encumbrance or security
interest on property of the Company or any Subsidiary is greater than 40% of the
sum of (without duplication) (1) Total Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Securities and
Exchange Commission (or, if such filing is not permitted under the Securities
Exchange Act of 1934, with the Trustee) prior to the incurrence of such
additional Debt and (2) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by the Company or
any Subsidiary since the end of such calendar quarter, including those proceeds
obtained in connection with the occurrence of such additional Debt; provided,
however, that for purposes of this limitation, the amount of obligations under
capital leases shown as a liability on the Company's consolidated balance sheet
shall be deducted from Debt and Total Assets.
3
Furthermore, the Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service (as defined below) to the Annual Debt Service Charge (as defined
below) for the four consecutive fiscal quarters most recently ended prior to the
date on which such additional Debt is to be incurred shall have been less than
1.5 to 1, on an unaudited pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the Company
and its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period); (iii) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such unaudited
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such unaudited pro forma calculation.
Furthermore, the Company and each of its Subsidiaries taken as a whole,
will, at all times maintain an Unencumbered Total Asset Value (as defined below)
in an amount not less than 125% of the aggregate outstanding principal amount of
the unsecured Debt of the Company and each of its Subsidiaries, taken as a
whole.
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection
with the acquisition of assets from such Person, in each case, other
than Debt incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Debt shall
be deemed to be incurred on the date of the related acquisition of
assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Annual Debt Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and original
issue discount of, Debt of the Company and its Subsidiaries and the
amount of dividends which are payable in respect of any Disqualified
Stock (as defined below).
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or
other ownership interests (however
4
designated) of such Person and any rights (other than debt securities
convertible into or exchangeable for corporate stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any
period means Funds from Operations (as defined below) of the Company
and its Subsidiaries plus amounts which have been deducted for interest
on Debt of the Company and its Subsidiaries.
"Debt" means any indebtedness of the Company, or any
Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money evidenced by bonds, notes, debentures
or similar instruments, (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on
property owned by the Company or any Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense
or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock or
(v) any lease of property by the Company or any Subsidiary as lessee
which is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with generally accepted accounting
principles to the extent, in the case of items of indebtedness under
(i) through (iii) above, that any such items (other than letters of
credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included,
any obligation of the Company or any Subsidiary to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business or for the purposes of
guaranteeing the payment of all amounts due and owing pursuant to
leases to which the Company is a party and has assigned its interest,
provided that such assignee of the Company is not in default of any
amounts due and owing under such leases), Debt of another Person (other
than the Company or any Subsidiary) (it being understood that Debt
shall be deemed to be incurred by the Company or any Subsidiary
whenever the Company or such Subsidiary shall create, assume, guarantee
or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock
(or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable), upon the happening of any
event or otherwise (i) matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, (ii) is convertible into or
exchangeable or exercisable for Debt or Disqualified Stock or (iii) is
redeemable at the option of the holder thereof, in whole or in part, in
each case on or prior to the Stated Maturity of the Notes.
"Funds from Operations" for any period means income available
to common shareholders before depreciation and amortization of real
estate assets and before extraordinary items less gain on sale of real
estate.
5
"Total Assets" as of any date means the sum of (i) the
Company's and its Subsidiaries' Undepreciated Real Estate Assets and
(ii) all other assets of the Company and its Subsidiaries determined in
accordance with generally accepted accounting principles (but excluding
goodwill).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of
the Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unencumbered Total Asset Value" as of any date means the sum
of (i) those Undepreciated Real Estate Assets not encumbered by any
mortgage, lien, charge, pledge or security interest and (ii) all other
assets of the Company and each of its Subsidiaries on a consolidated
basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and accounts receivable), in each
case which are unencumbered by any mortgage, lien, charge, pledge or
security interest.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or by his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
6
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
7
Exhibit 4.01
[Face of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
No. $150,000,000
--------
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
$1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment
trust (herein referred to as the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to Cede & Co. or registered assigns the
principal sum of One Hundred Fifty Million Dollars on November 15, 2007 (the
"Stated Maturity Date") or the date fixed for earlier redemption (the
"Redemption Date," and together with the Stated Maturity Date with respect to
principal repayable on such date, the "Maturity Date"), and to pay interest
thereon from November 19, 2002 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually on May 15 and
November 15 in each year (each, an "Interest Payment Date"), commencing May 15,
2003, at the rate of 6 1/8% per annum, until the principal hereof is paid or
duly provided for. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Holder in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be May 1 or November 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date at the office or
agency of the Company maintained for such purpose; provided, however, that such
interest may be paid, at the Company's option, by mailing a check to such Holder
at its
registered address or by transfer of funds to an account maintained by such
Holder within the United States. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee referred to on the reverse hereof, notice whereof shall be given to
Holders of Notes of this series not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
of this series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Stated Maturity Date or the
principal of, premium, if any, and, if the Redemption Date is not an Interest
Payment Date, interest on this Note payable on the Redemption Date will be paid
against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will include interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including November 19, 2002, if
no interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be. If any Interest Payment Date or
the Maturity Date falls on a day that is not a Business Day, as defined below,
principal, premium, if any, and/or interest payable with respect to such
Interest Payment Date or Maturity Date, as the case may be, will be paid on the
next succeeding Business Day with the same force and effect as if it were paid
on the date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date or Maturity
Date, as the case may be. "Business Day" means any day, other than a Saturday or
Sunday, on which banks in the City of New York and the City of Charlotte, State
of North Carolina, are not required or authorized by law or executive order to
close.
All payments of principal, premium, if any, and interest in respect of
this Note will be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
[This space intentionally left blank]
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: November __, 2002
FEDERAL REALTY INVESTMENT TRUST
By: ______________________________________
Steven J. Guttman
Chief Executive Officer and
Trustee
Attest:
- -----------------------------
Dawn M. Becker
Vice President, General Counsel
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note of the series designated therein referred to in the
within-mentioned Indenture.
WACHOVIA BANK, NATIONAL ASSOCIATION, as Trustee
By: ______________________________________
Authorized Signatory
[Reverse of Security]
FEDERAL REALTY INVESTMENT TRUST
6 1/8% Note due November 15, 2007
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 1, 1998 (herein called the
"Indenture") between the Company and Wachovia Bank, National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this Note is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the duly authorized series of
Securities designated as "6 1/8% Notes due November 15, 2007" (collectively, the
"Notes"), and the aggregate principal amount of the Notes to be issued under
such series is limited to $150,000,000 (except for Notes authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other Notes). All
terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Notes are subject to redemption at any time, in whole or in part,
at the election of the Company, at a redemption price equal to the greater of
(1) 100% of the principal amount of the Notes being redeemed, and (2) as
determined by the Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued as of the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below) plus 37.5 basis points plus, in each case,
accrued interest thereon to the Redemption Date; provided, however, that
installments of interest on this Note whose Stated Maturity Date is on or prior
to such Redemption Date will be payable to the Holder of this Note, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
As used herein:
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per year equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the
notes to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of
such notes.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (1) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than three
such Reference Treasury Dealer quotations, the average of all such
Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (1) each of Merrill, Lynch, Pierce,
Fenner & Smith Incorporated, Salomon Smith Barney Inc. and Wachovia
Securities, Inc., and their respective successors; provided, however, that
if any of the foregoing cease to be a primary U.S. Government securities
dealer (a "Primary Treasury Dealer"), the Company will substitute therefor
another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer
selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m. New York City time, on the third Business Day preceding such
Redemption Date, together in the case of any such redemption with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Note whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Note, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as
provided in the Indenture.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Company with certain
provisions of the Indenture.
2
Furthermore, provisions in the Indenture permit the Holders of not less than a
majority of the aggregate principal amount, in certain instances, of the
Outstanding Securities of any series to waive, on behalf of all of the Holders
of Securities of such series, certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and other Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
The Company will not, and will not permit any Subsidiary to, incur any
Debt (as defined below) if, immediately after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles is greater than 65% of the sum of (without duplication) (i) Total
Assets as of the end of the calendar quarter covered in the Company's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Securities and Exchange Commission (or, if such filing
is not permitted under the Securities Exchange Act of 1934, with the Trustee)
prior to the incurrence of such additional Debt and (ii) the purchase price of
any real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce Debt),
by the Company or any Subsidiary since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Debt.
In addition to the foregoing limitation on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt secured
by any mortgage, lien, charge, pledge, encumbrance or security interest of any
kind upon any of the property of the Company or any Subsidiary if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on property of
the Company or any Subsidiary is greater than 40% of the sum of (without
duplication) (1) Total Assets as of the end of the calendar quarter covered in
the Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Securities and Exchange Commission
(or, if such filing is not permitted under the Securities Exchange Act of 1934,
with the Trustee) prior to the incurrence of such additional Debt and (2) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
occurrence of such additional Debt; provided, however, that for purposes of this
limitation, the amount of obligations under capital leases shown as a liability
on the Company's consolidated balance sheet shall be deducted from Debt and
Total Assets.
3
Furthermore, the Company will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available for Debt
Service (as defined below) to the Annual Debt Service Charge (as defined below)
for the four consecutive fiscal quarters most recently ended prior to the date
on which such additional Debt is to be incurred shall have been less than 1.5 to
1, on an unaudited pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the Company
and its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period); (iii) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such unaudited
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such unaudited pro forma calculation.
Furthermore, the Company and each of its Subsidiaries taken as a whole,
will, at all times maintain an Unencumbered Total Asset Value (as defined below)
in an amount not less than 125% of the aggregate outstanding principal amount of
the unsecured Debt of the Company and each of its Subsidiaries, taken as a
whole.
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be
incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Annual Debt Service Charge" as of any date means the maximum amount
which is payable in any period for interest on, and original issue discount
of, Debt of the Company and its Subsidiaries and the amount of dividends
which are payable in respect of any Disqualified Stock (as defined below).
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however
4
designated) of such Person and any rights (other than debt securities
convertible into or exchangeable for corporate stock), warrants or options
to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Funds from Operations (as defined below) of the Company and its
Subsidiaries plus amounts which have been deducted for interest on Debt of
the Company and its Subsidiaries.
"Debt" means any indebtedness of the Company, or any Subsidiary,
whether or not contingent, in respect of (without duplication) (i) borrowed
money evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or
obligations under any title retention agreement, (iv) the principal amount
of all obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock or (v)
any lease of property by the Company or any Subsidiary as lessee which is
reflected on the Company's consolidated balance sheet as a capitalized
lease in accordance with generally accepted accounting principles to the
extent, in the case of items of indebtedness under (i) through (iii) above,
that any such items (other than letters of credit) would appear as a
liability on the Company's consolidated balance sheet in accordance with
generally accepted accounting principles, and also includes, to the extent
not otherwise included, any obligation of the Company or any Subsidiary to
be liable for, or to pay, as obligor, guarantor or otherwise (other than
for purposes of collection in the ordinary course of business or for the
purposes of guaranteeing the payment of all amounts due and owing pursuant
to leases to which the Company is a party and has assigned its interest,
provided that such assignee of the Company is not in default of any amounts
due and owing under such leases), Debt of another Person (other than the
Company or any Subsidiary) (it being understood that Debt shall be deemed
to be incurred by the Company or any Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become liable
in respect thereof).
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise
(i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, (ii) is convertible into or exchangeable or
exercisable for Debt or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior
to the Stated Maturity of the Notes.
"Funds from Operations" for any period means income available to
common shareholders before depreciation and amortization of real estate
assets and before extraordinary items less gain on sale of real estate.
5
"Total Assets" as of any date means the sum of (i) the Company's and
its Subsidiaries' Undepreciated Real Estate Assets and (ii) all other
assets of the Company and its Subsidiaries determined in accordance with
generally accepted accounting principles (but excluding goodwill).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unencumbered Total Asset Value" as of any date means the sum of (i)
those Undepreciated Real Estate Assets not encumbered by any mortgage,
lien, charge, pledge or security interest and (ii) all other assets of the
Company and each of its Subsidiaries on a consolidated basis determined in
accordance with generally accepted accounting principles (but excluding
intangibles and accounts receivable), in each case which are unencumbered
by any mortgage, lien, charge, pledge or security interest.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the Holder hereof surrendering the
same.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
6
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
7
Exhibit 5.01
November 19, 2002
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, Maryland 20852
Re: Federal Realty Investment Trust
Registration Statement on Form S-3
Underwritten Public Offering of $150,000,000 6 1/8% Notes due 2007
Ladies and Gentlemen:
We have acted as counsel to Federal Realty Investment Trust, a Maryland
real estate investment trust (the "Company"), in connection with the filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a prospectus supplement dated November 14, 2002 (the "Prospectus
Supplement") to the prospectus dated September 30, 1998 (the "Prospectus")
contained in the registration statement on Form S-3 (File No. 033-63687) (the
"Registration Statement"), which was declared effective on September 30, 1998.
The Prospectus and the Prospectus Supplement are together referred to herein as
the "Prospectus." The Prospectus related to the issuance and sale by the Company
of $150,000,000 aggregate principal amount of its 6 1/8% Notes due November 15,
2007 (the "Notes"), pursuant to the Underwriting Agreement dated November 14,
2002 between the Company and the Underwriters (as defined below) (the
"Underwriting Agreement") and the related Pricing Agreement dated November 14,
2002 between the Company and the Underwriters (the "Pricing Agreement"), to the
firms named in Schedule I to the Pricing Agreement (the "Underwriters"). The
Notes will be offered and sold pursuant to an Indenture (the "Indenture") dated
as of September 1, 1998 between the Company and Wachovia Bank National
Association, formerly known as First Union National Bank (the "Trustee").
In rendering our opinion, we have examined the following:
(i) the Registration Statement;
(ii) the Prospectus;
(iii) the Indenture;
(iv) the Declaration of Trust of the Company, as certified by the
Maryland State Department of Assessments and Taxation on
November 13, 2002;
(v) the Bylaws, as amended, of the Company, as certified by the
Secretary of the Company on November 19, 2002;
(vi) resolutions of the Board of Directors dated September 2, 1998
approving the Indenture, as certified by the Secretary of the
Company on November 19, 2002;
(vii) resolutions of the Board of Directors of the Company adopted at a
special meeting of the Board held on September 2, 1998, approving
the Registration Statement, as certified by the Secretary of the
Company on November 19, 2002;
(viii) resolutions of the Board of Directors of the Company with respect to
the offering of the Notes adopted by unanimous written consent in
lieu of a meeting of the Board on November 13, 2002, as certified
by the Secretary of the Company on November 19, 2002;
(ix) resolutions of the Pricing Committee with respect to the offering of
the Notes adopted on November 14, 2002;
(x) A certificate of an officer of the Company dated as of the date
hereof; and
(xi) Such other documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary
for the purposes of rendering this opinion.
The documents referred to in clauses (vi) through (viii) are collectively
referred to as the "Resolutions." In our examination of the aforesaid documents,
we have assumed the legal capacity of all natural persons, the genuineness of
all signatures, the completeness and authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified, telecopied, photostatic or reproduced copies. In
connection with the opinions expressed below, we have assumed that, at and prior
to the time of the sale and delivery of any Notes pursuant to the Registration
Statement, (i) the Resolutions have not been amended, modified or rescinded,
(ii) the Registration Statement has been declared effective and no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings with respect thereto have been commenced or threatened, and
(iii) there has not occurred any change in law materially adversely affecting
the power of the Company to offer and sell the Notes or the validity of the
Notes.
We have also assumed that the offering, sale and delivery of the Notes, and
compliance by the Company with the rights, powers, privileges and preferences
and other terms of the Notes will not at the time of such offering, sale and
delivery violate or conflict with (i) the Declaration of Trust, as then amended,
restated and supplemented,
and Bylaws, as then amended, restated and supplemented, of the Company, (ii) any
provision of any license, indenture, instrument, mortgage, contract, document or
agreement to which the Company is then a party or by which the Company is then
bound, or (iii) any law or regulation or any decree, judgment or order then
applicable to the Company.
Based upon the foregoing and subject to the limitations and qualifications
hereinafter set forth, we are of the opinion that the Notes will constitute
legally valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms when duly executed and delivered by the
Company against payment therefor and countersigned or authenticated by the
Trustee in accordance with the Indenture and delivered to and paid for by the
purchasers of the Notes in the manner contemplated by the Underwriting
Agreement.
The opinion above with respect to the enforceability of obligations 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 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 the Notes are considered in a proceeding in equity or at law). Such
opinions 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 the previous sentence, the court
will provide a money damage (or perhaps injunctive or specific performance)
remedy.
This opinion is limited to the laws of the United States, the General
Corporation Law of Maryland and New York contract law (but not including any
statutes, ordinances, administrative decisions, rules or regulations of any
political subdivision of the State of New York), in each case excluding choice
of law provisions thereof. We render no opinions with respect to the law of any
other jurisdiction. Our opinion is rendered only with respect to the laws and
the rules, regulations and orders thereunder that are currently in effect. We
assume no obligation to advise you of any changes in the foregoing subsequent to
the delivery of this opinion. This opinion has been prepared solely for your use
in connection with the filing of the Prospectus to the Registration Statement,
and should not be quoted in whole or in part or otherwise be referred to, nor
otherwise be filed with or furnished to, any governmental agency or other person
or entity, without our express prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus under the
caption "Legal Matters." The giving of this consent, however, does not
constitute an admission that we are "experts" within the meaning of Section 11
of the Securities Act of 1933 (the "Act"), as amended, or within the category of
persons whose consent is required by Section 7 of the Act.
Very truly yours,
SHAW PITTMAN LLP
Exhibit 8.01
November 19, 2002
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, Maryland 20852
Ladies and Gentlemen:
You have requested certain opinions regarding the application of
U.S. federal income tax laws to Federal Realty Investment Trust (the "Company")
in connection with the offer and sale of $150,000,000 aggregate principal amount
of 6 1/8% Notes due November 15, 2007 pursuant to a registration statement on
Form S-3, including the prospectus and all amendments, exhibits and documents
related thereto (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission").
In rendering the following opinions, we have examined such statutes,
regulations, records, certificates and other documents as we have considered
necessary or appropriate as a basis for such opinions, including the following:
(1) the Registration Statement, (2) the Declaration of Trust of the Company, as
amended, restated or supplemented (the "Declaration of Trust"), (3) certain
written representations of the Company contained in a letter to us dated as of
the date hereof, (4) copies of the representative leases entered into by the
Company as of the date hereof, and (5) such other documents or information as we
have deemed necessary to render the opinions set forth in this letter. In our
review, we have assumed, with your consent, that the documents listed above that
we reviewed in proposed form will be executed in substantially the same form,
all of the representations and statements set forth in such documents are true
and correct, and all of the obligations imposed by any such documents on the
parties thereto, including obligations imposed under the Declaration of Trust
have been or will be performed or satisfied in accordance with their terms. We
also have assumed the genuineness of all signatures, the proper execution of all
documents, the authenticity of all documents submitted to us as originals, the
conformity to originals of documents submitted to us as copies, and the
authenticity of the originals from which any copies were made.
Unless facts material to the opinions expressed herein are specifically
stated to have been independently established or verified by us, we have relied
as to such facts solely upon the representations made by the Company. To the
extent that the representations of the Company are with respect to matters set
forth in the Internal Revenue Code of 1986, as amended (the "Code") or the
regulations promulgated thereunder (the "Treasury Regulations"), we have
reviewed with the individuals making
Federal Realty Investment Trust
November 19, 2002
Page 2
such representations the relevant provisions of the Code, the applicable
Treasury Regulations and published administrative interpretations thereof. We
assume that each representation made by the Company is and will be true, correct
and complete, and that all representations that speak in the future, or to the
intention, or to the best of belief and knowledge of any person(s) or party(ies)
are and will be true, correct and complete as if made without such
qualification. Nothing has come to our attention which would cause us to believe
that any of such representations are untrue, incorrect or incomplete.
Based upon and subject to the foregoing and to the qualifications
below, we are of the opinion that (i) the Company qualified as a REIT under the
Code for its taxable years ending through December 31, 2001, and (ii) the
Company is organized in conformity with the requirements for qualification as a
REIT under the Code, and its current method of operation will enable it to meet
the requirements for qualification as a REIT for the current taxable year and
for future taxable years.
For a discussion relating the law to the facts and legal analysis
underlying the opinions set forth in this letter, we incorporate by reference
the discussion of federal income tax issues, which we assisted in preparing, in
the Company's Current Report on Form 8-K filed with the Commission on November
13, 2002, under the heading "Federal Income Tax Consequences."
The opinions set forth in this letter are based on existing law as
contained in the Code, Treasury Regulations (including any Temporary and
Proposed Regulations), and interpretations of the foregoing by the Internal
Revenue Service ("IRS") and by the courts in effect (or, in case of certain
Proposed Regulations, proposed) as of the date hereof, all of which are subject
to change, both retroactively or prospectively, and to possibly different
interpretations. Moreover, the Company's ability to achieve and maintain
qualification as a REIT depends upon its ability to achieve and maintain certain
diversity of stock ownership requirements and, through actual annual operating
results, certain requirements under the Code regarding its income, assets and
distribution levels. No assurance can be given as to whether, for any given
taxable year, the actual ownership of the Company's stock and its actual
operating results and distributions satisfy the tests necessary to achieve and
maintain its status as a REIT. We assume no obligation to update the opinions
set forth in this letter. We believe that the conclusions expressed herein, if
challenged by the IRS, would be sustained in court. Because our positions are
not binding upon the IRS or the courts, however, there can be no assurance that
contrary positions may not be successfully asserted by the IRS.
Federal Realty Investment Trust
November 19, 2002
Page 3
The foregoing opinions are limited to the specific matters covered
thereby and should not be interpreted to imply the undersigned has offered its
opinion on any other matter.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. The giving of this consent, however, does not constitute
an admission that we are "experts" within the meaning of Section 11 of the
Securities Act of 1933 (the "Act"), as amended, or within the category of
persons whose consent is required by Section 7 of the Act.
Very truly yours,
SHAW PITTMAN LLP
By: /s/ Charles B. Temkin, P.C.
-------------------------------
Charles B. Temkin, P.C.
Exhibit 12.01
FEDERAL REALTY INVESTMENT TRUST
Computation of Ratios of Earnings to Fixed Charges and
Of Ratios of Earnings to Combined Fixed Charges and Preferred Dividends
(in thousands)
9/30 9/30
2002 2001 2001 2000 1999 1998 1997
----------- ----------- ----------- ----------- ----------- ---------- ---------
Income before gain on sale of real estate $ 43,054 $ 43,684 $ 59,571 $ 56,842 $ 55,493 $ 44,960 $ 40,129
Add:
Portion of rents representing interest 1,117 1,089 2,037 1,969 1,619 986 948
Interest on indebtedness, including
amortization of debt costs 45,313 52,360 69,313 66,418 61,492 55,125 47,288
-------- --------- -------- --------- ---------- ---------- ---------
Income as adjusted 89,484 97,133 130,921 125,229 118,604 101,071 88,365
======== ========= ======== ========= ========== ========== =========
Fixed Charges:
Portion of rents representing interest $ 1,117 $ 1,089 $ 2,037 $ 1,969 $ 1,619 $ 986 $ 948
Interest on indebtedness, including
Amortization of debt costs 45,313 52,360 69,313 66,418 61,492 55,125 47,288
Capitalized Interest 19,412 12,747 17,803 13,249 6,867 5,078 3,649
-------- --------- -------- --------- ---------- ---------- ---------
Fixed charges 65,842 66,196 89,153 81,636 69,978 61,189 51,885
Preferred dividend 14,568 5,963 9,034 7,950 7,950 7,950 1,877
-------- --------- -------- --------- ---------- ---------- ---------
Combined fixed charges and
Preferred dividends 80,410 72,159 98,187 89,586 77,928 69,139 53,762
======== ========= ======== ========= ========== ========== =========
Ratio of earnings to fixed charges 1.4 1.5 1.5x 1.5x 1.7x 1.7x 1.7x
Ratio of earnings to combined fixed charges
and preferred dividend 1.1 1.4 1.3x 1.4x 1.5x 1.5x 1.6x
