<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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 23, 1999
-----------------
FEDERAL REALTY INVESTMENT TRUST
-------------------------------
(Exact Name of Registrant as Specified in Charter)
Maryland 1-7533 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
--------------
Not Applicable
-------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
----------------------------------------------------------------------
Exhibit Index is on page 1.
<PAGE>
Item 5. Other Events.
-------------
Attached as exhibits to this form are the documents listed at Item 7(c).
Item 7. Financial Statements and Exhibits.
----------------------------------
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
Exhibit
No. Description
--- -----------
1.1 Underwriting Agreement, dated as of November 23, 1999, by and
among Federal Realty Investment Trust and the several
Underwriters named therein, for whom Goldman, Sachs & Co., J.P.
Morgan Securities Inc., First Union Securities, Inc., PNC Capital
Markets, Inc. and Warburg Dillon Read LLC will act as
representatives.
4.1 Form of $175,000,000 8 3/4% Notes due December 1, 2009.
5.1 Opinion of Hogan & Hartson L.L.P. as to the validity of the notes
being issued.
8.1 Opinion of Hogan & Hartson L.L.P regarding certain tax matters.
23.1 Consent of Hogan & Hartson L.L.P. regarding the validity of the
notes being issued (included in Exhibit 5.1).
23.2 Consent of Hogan & Hartson L.L.P. regarding certain tax matters
(included in Exhibit 8.1).
99.1 Press release from Moody's Investors Service, dated November 15,
1999.
99.2 Press release from Standard & Poor's, dated November 16, 1999.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FEDERAL REALTY INVESTMENT TRUST
-------------------------------
(Registrant)
Date: November 29, 1999 By: /s/ Nancy J. Herman
--------------------
Nancy J. Herman
Vice President, General Counsel and
Secretary
<PAGE>
EXHIBIT INDEX
Exhibit Page
No. Description No.
--- ----------- ---
1.1 Underwriting Agreement, dated as of November 23, 1999, by and
among Federal Realty Investment Trust and the several
Underwriters named therein, for whom Goldman, Sachs & Co., J.P.
Morgan Securities Inc., First Union Securities, Inc., PNC Capital
Markets, Inc. and Warburg Dillon Read LLC will act as
representatives.
4.1 Form of $175,000,000 8 3/4% Notes due December 1, 2009.
5.1 Opinion of Hogan & Hartson L.L.P. as to the validity of the notes
being issued.
8.1 Opinion of Hogan & Hartson L.L.P regarding certain tax matters.
23.1 Consent of Hogan & Hartson L.L.P. regarding the validity of the
notes being issued (included in Exhibit 5.1).
23.2 Consent of Hogan & Hartson L.L.P. regarding certain tax matters
(included in Exhibit 8.1).
99.1 Press release from Moody's Investors Service, dated November 15,
1999.
99.2 Press release from Standard & Poor's, dated November 16, 1999.
<PAGE>
Exhibit 1.1
FEDERAL REALTY INVESTMENT TRUST
Debt Securities
---------------
Underwriting Agreement
----------------------
November 23, 1999
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
FIRST UNION SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
WARBURG DILLON READ LLC
as Representatives of the several Underwriters
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
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 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
<PAGE>
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 telegraphic 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) Registration statement on Form S-3 (File No. 333-63619) (the
"Registration Statement") in respect of the Securities have been filed with
the Securities and Exchange Commission (the "Commission"); the Registration
Statement and any post-effective amendments thereto, each in the form
heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectuses contained therein,
to the Representatives for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"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
or documents incorporated by reference therein 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 orders suspending the
effectiveness of the Registration Statement, any post-effective amendments
thereto or the Rule 462(b) Registration Statement, if any, have been issued
and no proceedings for that purpose have been initiated or threatened by
the Commission (any preliminary prospectus included in the Registration
Statement or filed with the Commission pursuant to Rule 424(a) 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 documents incorporated by
reference in the prospectuses contained in the Registration Statement at
the time such part of the registration statements became effective but
2
<PAGE>
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, if any, became or hereafter becomes 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; 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 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
3
<PAGE>
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
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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, limited partnerships, general
partnerships, limited liability corporations, or joint ventures as the case
may be, in good standing under the laws of the jurisdictions 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 businesses 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, is fully paid and
non-assessable and is owned by the Company, except as otherwise denoted in
Annex III hereto, free and clear of all pledges, liens, encumbrances,
claims, security interests and defects; 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 otherwise, or on the earnings, business affairs or
business prospects of the Company and the Entities considered as one
enterprise;
4
<PAGE>
(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 consolidated capital stock (except for issuances of Common Shares
pursuant to the Company's employee benefit plans and the Company's Dividend
Reinvestment and Share Purchase Plan) 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, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and,
except as set forth in the Prospectus under the captions "Description of
Common Shares--Shareholder Liability" and "Description of Preferred Shares-
-Shareholder Liability", non-assessable;
(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 the Prospectus as amended or supplemented
with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, 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
5
<PAGE>
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 By-laws 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, obtained under the Act and the Trust Indenture Act and except for
the 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 Designated Securities 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 included in the Prospectus present fairly the information
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;
6
<PAGE>
(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) Grant Thornton LLP who has certified the consolidated financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement and Prospectus, and Arthur
Andersen LLP who was appointed as the Trust's independent accountants
effective May 5, 1999, are each independent public accountants as required
by the Securities Act
(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
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials;
(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
7
<PAGE>
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 twenty-four 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 certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, 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 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), 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 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 Securities and prior to the Time of Delivery for
such Securities which shall be reasonably disapproved by the
Representatives for such 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
8
<PAGE>
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 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 relating to the Securities, of the
suspension of the qualification of such 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 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 relating
to the 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 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 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) Prior to 10:00 a.m. New York City time, on the New York business
day next succeeding the date of the applicable Pricing Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus in
New York City 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 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 make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
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;
9
<PAGE>
(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 from the date of the Pricing Agreement
for such Designated Securities and continuing to 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, 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
Securities in the manner specified in the Prospectus under the caption "Use
of Proceeds"; and
(g) To elect 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 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
10
<PAGE>
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 in 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 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) 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 Underwriters 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;
(c) Hogan & Hartson L.L.P., counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly organized and is validly existing
as a real estate investment trust in good standing under the laws of
the state of Maryland, with full power and authority to own its
properties and conduct its business as described in the Prospectus;
the Entities have been duly organized and are validly existing as
corporations, limited partnerships, general partnerships, limited
liability corporations, or joint ventures as the case may be, in good
standing under the laws of the jurisdictions of their organization
(except for joint ventures, which have no good standing certificate
requirements); the Entities have power and authority to own their
properties and conduct their businesses as described
11
<PAGE>
in the Prospectus; to the best of such counsel's knowledge, except as
otherwise denoted in Annex III hereto, all of the equity interests in
the Entities are owned by the Company and, to the best of such
counsel's knowledge, no options, warrants or other rights to convert
any obligations into partnership or other ownership interests in the
Entities are outstanding; all of the issued and outstanding stock of
each Entity that is a corporation has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
except as otherwise denoted in Annex III hereto, free and clear of all
pledges, liens, encumbrances, claims and security interests; the
Company and the Entities are duly qualified to transact business in
all jurisdictions in which the Company and the Entities are, to such
counsel's knowledge, 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 otherwise, or on the earnings, business
affairs or business prospects of the Company and the Entities
considered as one enterprise; and the conditions for use of a
registration statement on Form S-3 have been satisfied;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated Securities and the
Indenture conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(iv) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes 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 has been
duly qualified under the Trust Indenture Act;
(v) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement with respect to
the Designated Securities 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 known to such counsel
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
12
<PAGE>
any of the property or assets of the Company or any of the Entities is
subject, nor will such actions result in any violation of the
provisions of the Declaration of Trust or By-laws of the Company or
any statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over the
Company or any of the Entities or any of their respective properties;
(vi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Securities being
delivered at such Time of Delivery or the consummation by the Company
of the transactions contemplated by this Agreement or the Pricing
Agreement or the Indenture, except such as have been obtained under
the Act and the Trust Indenture Act and except for the listing of the
Designated Securities on the 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 Designated
Securities by the Underwriters;
(vii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, 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
applicable, and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material act
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(viii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations thereunder; if
applicable, the Rule 434 Prospectus complies as to form in all
material respects with the requirements of Rule 434 under the Act;
they have no reason to believe that, as of its effective date, the
Registration Statement or any further
13
<PAGE>
amendment thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) 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 or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading or that, as of the Time of Delivery, either
the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required.
In delivering such opinion, counsel shall be entitled to rely in
respect of the opinion in this clause upon opinions of local counsel
and in respect of certain matters of fact upon certificates of
officers of the Company, provided that such counsel shall state that
they believe that both you and they are justified in relying upon such
opinions and certificates.
(d) In addition to the above opinion, the Underwriters shall have
received the opinion or opinions of Hogan & Hartson L.L.P., Tax Counsel to the
Company, dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Underwriters, to the effect that (1) the Company
is and has been organized and operated in conformity with the requirements for
qualification and taxation as a real estate investment trust ("REIT") under the
Code since its taxable year ended December 31, 1994, and the Company's current
and proposed method of operation (as described in the Prospectus and Prospectus
Supplement and as represented by the Company) will enable the Company to
continue to meet the requirements for qualification and taxation as a REIT for
its taxable year ending December 31, 1999, and thereafter and (2) the
discussions in the Prospectus and Prospectus Supplement, each under the caption
"Federal Income Tax Considerations," to the extent that they discuss matters of
law or
14
<PAGE>
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, the independent
accountants of the Company who have certified the financial statements of the
Company included or incorporated by reference in the Registration Statement
shall have furnished to the Representatives a letter, dated the effective date
of the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter dated such
Time of Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives;
(f) (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,
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 capital stock or
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;
(g) 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;
(h) 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
suspension or material limitation in trading in securities generally on the
NYSE;
15
<PAGE>
(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 (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war 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;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of the applicable Pricing Agreement;
and
(j) 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 satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) 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 expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
16
<PAGE>
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company 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, 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 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.
(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,
17
<PAGE>
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 each Underwriter 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 each Underwriter
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 each
Underwriter shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the
Company and the total discounts and commissions received by each
Underwriter in respect thereof bear to the aggregate offering price of such
Designated Securities. 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
relates to information supplied by the Company on the one hand or such
Underwriter 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 Underwriter 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 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,
18
<PAGE>
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 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, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase 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
19
<PAGE>
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, 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 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(h)(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 fees and
disbursements to 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.
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, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Steven J. Guttman; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such
20
<PAGE>
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex 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.
21
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Trust and each of the Representatives plus one for each
counsel counterparts hereof.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Nancy J. Herman
-----------------------------------------
Name: Nancy J. Herman
Title: V.P.-General Counsel and Secretary
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
FIRST UNION SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
WARBURG DILLON READ LLC
By: Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
By: /s/ Goldman, Sachs & Co.
-------------------------
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
/s/ Robert Nordlinger
----------------------
Name: Robert Nordlinger
Title: Vice President
For themselves and as Representatives
of the other Underwriters named in
Schedule I of Annex I hereto.
22
<PAGE>
ANNEX I
Pricing Agreement
-----------------
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and address of Representative]
_________________, 199
Dear Sirs:
Federal Realty Investment Trust, a real estate investment trust organized
under the laws of the State of Maryland (the "Company"), proposes, subject to
the terms and conditions stated herein and in the Underwriting Agreement, dated
_______________ __, 1999 (the "Underwriting Agreement"), between the Company on
the one hand and [names of Representatives] on the other hand, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedules I and 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 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 Representatives designated to
act on behalf of the Representatives and 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 at the end of 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,
<PAGE>
to purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter 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. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
---------------------------------------
Title:
Accepted as of the date hereof:
[NAME OF UNDERWRITER]
By:
-------------------------------
Name:
Title:
2
<PAGE>
SCHEDULE I
Number of
Designated Securities
UNDERWRITER to be Purchased
----------------------------------- -----------------------------
--------------- ---------------
---------------
Total $
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Senior] [Subordinated] [Floating Rate] [Zero Coupon] [Designated
Securities]
[Debentures] due
Aggregate principal amount
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest from to
[and accrued amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to
[and accrued amortization, if any, from to ]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated , 19 , between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$] or an integral multiple thereof,
<PAGE>
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on in each of
the years through at 100% of their principal amount plus
accrued interest] [,together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$] principal
amount of Designated Securities in the years through at 100% of
their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on , [insert date and years], at
the option of the holder, at their principal amount with accrued
interest. Initial annual interest rate will be %, and thereafter
annual interest rate will be adjusted on , and to a
rate not less than % of the effective annual interest rate on U.S.
Treasury obligations with -year maturities as of the [insert
date 15 days prior to maturity date] prior to such [insert maturity
date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
2
<PAGE>
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month] [securities] [certificates of deposit] issued by
and [insert names of banks],] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) then current weekly average per annum
secondary market yield for -month certificates of deposit over (ii)
then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); from
and thereafter the rate will be the then current interest yield
equivalent plus % of interest Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[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.
3
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement (i) Grant Thornton
LLP shall furnish a letter to the Underwriters on the date of the Pricing
Agreement with respect to the matters covered in paragraphs (i), (ii), (iii),
(iv) and (vi) below, provided however, it is understood that Grant Thornton LLP
shall not be required to address any periods subsequent to March 31, 1999; and
(ii) Arthur Andersen LLP shall furnish letters to the Underwriters on the date
of the Pricing Agreement and the Time of Delivery with respect to the matters
covered in paragraphs (i), (iii), (v), (vi) and (vii) below, provided however,
it is understood that Arthur Andersen LLP shall not be required to address any
periods prior to April 1, 1999.
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have
made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representatives of the Underwriters (the
"Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached hereto; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements do
not comply as to form in all material respects with the
<PAGE>
applicable accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result to the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or incorporated
by reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations or
(ii) any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such
2
<PAGE>
data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's
Annual Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than three days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company, or any
decreases in consolidated net current assets or net assets or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases
in revenue, or in income before gain on sale of real estate and
extraordinary items or the total or per share amounts of consolidated
net income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for increases
3
<PAGE>
or decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their reports included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
<PAGE>
ANNEX III
Corporations (including Subsidiaries), Partnerships, Limited Liability Companies
- --------------------------------------------------------------------------------
and Joint Venture of Federal Realty Investment Trust ("FRIT")
-------------------------------------------------------------
FRIT
----
Entity Type Ownership Interest
----------- ------------------
Subsidiaries:
FRIT-WM, Inc. 100%
Street Retail Inc. ("SRI") 100%
Subsidiary of Street Retail, Inc.
Street Retail West GP, Inc. ("SRWGP") 100%
FR Pike 7 Limited Partnership 99%
FRLP, Inc. ("FRLP") 100%
Federal Realty Partners, Inc. ("FedRP") 100%
Federal Realty Partners, L.P. (741,621 units currently FedRP - 40 units
issued) FRLP - 40 units
SRI Holding Company, Inc. SRI owns 100% of
non-voting stock
SRI Texas, Inc. 100%
Street Retail San Antonio, L.P. 100%
FRIT Property Services, Inc., FRIT owns 100% of
f/k/a Terranomics Retail Services, Inc. non-voting stock
TRS Development, Inc. FRIT Property
Services, Inc. owns
100%
Corporations, Partnerships and Limited Liability Companies:
Andorra Associates 99% FRIT
1% FRA
Berman Enterprises II Limited Partnership 99% FRIT
1% FRA
<PAGE>
FR Associates Limited Partnership ("FRA") 99%
FRIT Escondido Promenade, LLC 70%
FRIT San Jose Town and Country Village LLC 75%
Governor Plaza Associates 99% FRIT
1% FRA
Loehmann's Plaza Limited Partnership 1%
San Jose Residential, Inc. FRIT San Jose Town
and Country Village
LLC owns 100% of
non-voting stock
SRI Old Town, LLC 70%
SRI San Antonio, Inc. 100%
Shopping Center Associates Limited Partnership 99% FRIT
1% FRA
Street Retail Forest Hills I, LLC 90%
Street Retail Forest Hills II, LLC 90%
Street Retail Tempe I, LLC 85%
Street Retail West I, L.P. (indirect partnership) 90% SRWGP
Street Retail West II, L.P. (indirect partnership) 90% SRWGP
Street Retail West 3, L.P. (indirect partnership) 90% SRWGP
10% SRI
Street Retail West 4, L.P. (indirect partnership) 90% SRWGP
Virginia Real Estate Investors Limited Partnership 99.762% FRIT
.238 FRA
Joint Venture:
Congressional Plaza Associates 55.7065%
FRIT Leasing & Development Services, Inc.
FR Leesburg Plaza, LP
<PAGE>
FR Leesburg Plaza, LLC
Ravenswood Development Services, Inc.
Street Retail West 6, L.P.
Street Retail West 7, L.P.
Street Retail West 8, L.P.
JS&DB, Inc.
Street Retail West 9, L.P.
<PAGE>
Exhibit 4.1
[Face of Security]
FEDERAL REALTY INVESTMENT TRUST
8 3/4% Note due December 1, 2009
No.______ $175,000,000
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 Seventy Five Million Dollars on December 1, 2009
(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 30, 1999 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year (each, an "Interest Payment Date"), commencing June 1,
<PAGE>
2000, at the rate of 8 3/4% 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 15 or November 15 (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 30, 1999, 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.
2
<PAGE>
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.
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: November 30, 1999
FEDERAL REALTY INVESTMENT TRUST
By: ______________________________________
Steven J. Guttman
President, Chief Executive Officer and
Trustee
Attest:
_____________________________
Nancy J. Herman
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.
FIRST UNION NATIONAL BANK
as Trustee
By: ______________________________________
Authorized Signatory
<PAGE>
[Reverse of Security]
FEDERAL REALTY INVESTMENT TRUST
8 3/4% Note due December 1, 2009
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 First Union National Bank, 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 "8 3/4% Notes due December 1, 2009" (collectively, the "Notes"),
and the aggregate principal amount of the Notes to be issued under such series
is limited to $175,000,000 (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 25 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
<PAGE>
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 Goldman, Sachs & Co.,
J.P. Morgan Securities Inc., First Union Securities, Inc., PNC Capital
Markets, Inc. and Warburg Dillon Read LLC 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.
2
<PAGE>
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. 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) the
Company's 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.
3
<PAGE>
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 Company's Total Assets;
provided 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 from Total Assets.
In addition to the foregoing limitations on the incurrence of Debt,
the Company will not and will not permit any Subsidiary to, incur any Senior
Debt if the ratio of Consolidated Income Available for Senior Debt Service (as
defined below) to the Annual Senior Debt Service Charge (as defined below) for
the four consecutive fiscal quarters most recently ended prior to the date on
which such Senior 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 Senior
Debt and any other Senior 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 Senior Debt, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Senior 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 Senior Debt
under any revolving credit facility shall be computed based upon the average
daily balance of such Senior Debt during such period); (iii) in the case of
Acquired Debt (as defined below) or Senior 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 Senior 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 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
4
<PAGE>
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 1.3 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.
As used herein,
"Acquired Debt" means Debt (or Senior Debt, as the case may be)
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 (or Senior Debt, as the case may be) 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).
"Annual Senior 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, Senior Debt of the Company and its Subsidiaries.
5
<PAGE>
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or
other ownership interests (however 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" and
"Consolidated Income Available for Senior 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 or 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).
6
<PAGE>
"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 before
depreciation and amortization and extraordinary items less gain on sale of
real estate.
"Senior Debt" means Debt other than subordinated Debt and
payments under Disqualified Stock of the Company.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
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.
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.
7
<PAGE>
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.
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.
8
<PAGE>
Exhibit 5.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
November 29, 1999
Board of Trustees
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, Maryland 20852-4041
Ladies and Gentlemen:
We are acting as counsel to Federal Realty Investment Trust, a
Maryland real estate investment trust (the "Company"), in connection with its
registration statement on Form S-3 (SEC File No. 333-63619) (the "Registration
Statement"), previously declared effective by the Securities and Exchange
Commission, relating to the proposed public offering of up to $500,000,000 in
aggregate amount of one or more series of the Company's unsecured debt
securities, preferred shares or common shares of beneficial interest, which may
be offered and sold by the Company from time to time as set forth in a
prospectus and one or more supplements thereto, all of which form a part of the
Registration Statement. This opinion letter is rendered in connection with the
proposed public offering of the Company's 8 3/4% Notes due December 1, 2009 (the
"Notes"), as described in a Prospectus dated September 30, 1998 (the
"Prospectus"), and a Prospectus Supplement dated November 23, 1999 (the
"Prospectus Supplement"). This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. (S) 229.601(b)(5), in connection with the Registration
Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Prospectus and the Prospectus Supplement.
3. The Declaration of Trust of the Company, as certified by the
Maryland State Department of Assessments and Taxation on November
17, 1999 and by the Secretary of the Company on the date hereof
as being complete, accurate, and in effect.
<PAGE>
4. The Bylaws of the Company, as certified by the Secretary of the
Company on the date hereof as being complete, accurate, and in
effect.
5. Certain resolutions of the Board of Trustees of the Company (the
"Board") adopted at a meeting held on September 2, 1998, as
certified by the Secretary of the Company on the date hereof as
being complete, accurate, and in effect, authorizing, among other
things, the filing of the Registration Statement and arrangements
in connection therewith.
6. Certain resolutions of the Board adopted by unanimous written
consent on November 18, 1999, as certified by the Secretary of
the Company on the date hereof as being complete, accurate, and
in effect, authorizing, among other things, the offer, issuance
and sale of the Notes and arrangements in connection therewith.
7. Certain resolutions of the Financing Committee of the Company
adopted by unanimous written consent as of November 23, 1999, as
certified by the Secretary of the Company on the date hereof as
being complete, accurate and in effect, relating to, among other
things, establishment of the Notes as a new series of the
Company's unsecured debt securities under the Indenture dated as
of September 1, 1998, between the Company and First Union
National Bank, as Trustee (the "Indenture"), authorization of the
Underwriting Agreement (as defined below), and arrangements in
connection therewith, and the issuance of the Notes on the terms
set forth therein and in accordance with the terms of the
Indenture.
8. An executed copy of the Underwriting Agreement and a Pricing
Agreement each dated as of November 23, 1999, by and among the
Company and the several Underwriters named therein, for whom
Goldman, Sachs & Co., J.P. Morgan Securities Inc., First Union
Securities, Inc., PNC Capital Markets, Inc. and Warburg Dillon
Read LLC will act as representatives (together, the "Underwriting
Agreement").
9. An executed copy of the Indenture.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents, and the conformity to authentic original documents of
all documents
2
<PAGE>
submitted to us as copies (including telecopies). This opinion letter is given,
and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on applicable
provisions of Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland (the "Maryland REIT Law"). We express no opinion
herein as to any other laws, statutes, ordinances, rules, or regulations or as
to compliance with state securities (or "blue sky") laws, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, upon due authentication of the Notes by the Trustee and the due
execution and delivery of the Notes on behalf of the Company against payment of
the consideration for the Notes specified in the Underwriting Agreement, the
Notes will be validly issued and will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights (including,
without limitation, the effect of statutory and other laws regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and as may be
limited by the exercise of judicial discretion and the application of principles
of equity, including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the Notes are
considered in a proceeding at law or in equity).
The opinion as to enforceability expressed above shall be understood
to mean only that if there is a default in performance of an obligation, (i) if
a failure to pay or other damage can be shown and (ii) if the defaulting party
can be brought into a court which will hear the case and apply the governing
law, then, subject to the availability of defenses, and to the exceptions set
forth above, the court will provide a money damage (or perhaps injunctive or
specific performance) remedy.
To the extent that the obligations of the Company under the Indenture
may be dependent upon such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in the activities contemplated by the Indenture; that the Indenture has
been duly authorized, executed and delivered by the Trustee and constitutes the
valid and binding obligation of the Trustee enforceable against the Trustee in
accordance with its terms; that the Trustee is in compliance, with respect to
acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
This opinion letter has been prepared for use solely in connection
with the filing by the Company of a Current Report on Form 8-K on the date
hereof,
3
<PAGE>
which Form 8-K will be incorporated by reference into the Registration Statement
and speaks as of the date hereof. We assume no obligation to advise you of any
changes in the foregoing subsequent to the delivery of this opinion letter. This
opinion letter should not be quoted in whole or in part or otherwise be referred
to, nor filed with or furnished to any governmental agency or other person or
entity, without the prior written consent of this firm. We assume no obligation
to advise you of any changes in the foregoing subsequent to the delivery of this
opinion letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the above-described Form 8-K and to the reference to this firm under the
caption "Legal Matters" in the Prospectus Supplement. In giving this consent,
we do not thereby admit that we are an "expert" within the meaning of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN & HARTSON L.L.P.
HOGAN & HARTSON L.L.P.
4
<PAGE>
Exhibit 8.1
[LETTERHEAD OF HOGAN & HARTSON L.L.P.]
November 29, 1999
Federal Realty Investment Trust
1626 East Jefferson Street
Rockville, Maryland 20852
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the issuance
and sale of $175,000,000 aggregate principal amount of 8.75% Notes due December
1, 2009 (the "Notes") of Federal Realty Investment Trust (the "Company"), as
described more fully in the Prospectus Supplement, dated on or about the date
hereof, to the Prospectus dated September 30, 1998. Capitalized terms used
herein shall have the meanings set forth in the Prospectus and Prospectus
Supplement, unless otherwise defined herein.
The opinion set forth in this letter is based on relevant provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations thereunder (including proposed and temporary Regulations), and
interpretations of the foregoing as expressed in court decisions, legislative
history, and existing administrative rulings and practices of the Internal
Revenue Service (including its practices and policies in issuing private letter
rulings, which are not binding on the Internal Revenue Service except with
respect to a taxpayer that receives such a ruling), all as of the date hereof.
These provisions and interpretations are subject to change, which may or may not
be retroactive in effect, that might result in modifications of our opinion.
Our opinion does not foreclose the possibility of a contrary determination by
the Internal Revenue Service or a court of competent jurisdiction, or of a
contrary position by the Internal Revenue Service or the Treasury Department in
regulations or rulings issued in the future.
In rendering our opinion, we have made such factual and legal
inquiries as we have deemed necessary or appropriate for purposes of our
opinion. For purposes of rendering our opinion, however, we have not made an
independent investigation or audit of the facts set forth in the Prospectus or
Prospectus Supplement. We have assumed, with your consent, that all of the
representations
<PAGE>
Federal Realty Investment Trust
November 29, 1999
Page 2 of 3
and statements set forth in the documents that we reviewed (including, without
limitation, the Prospectus and Prospectus Supplement) are true and correct, and
each of the obligations imposed by any such document on the parties thereto has
been and will be performed or satisfied in accordance with its terms. Further,
we 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.
Based upon, subject to, and limited by the assumptions and
qualifications set forth herein, we are of the opinion that the discussion in
the Prospectus Supplement under the heading "Federal Income Tax Considerations,"
to the extent such discussion describes applicable federal income tax law, is
correct in all material respects, as of the date hereof.
In addition to the assumptions set forth above, this opinion is
subject to the exceptions, limitations and qualifications set forth below:
1. This opinion represents and is based upon our best judgment
regarding the application of relevant current provisions of the Code and
interpretations of the foregoing as expressed in existing court decisions,
administrative determinations (including the practices and procedures of the
Internal Revenue Service (the "IRS") in issuing private letter rulings, which
are not binding on the IRS except with respect to the taxpayer that receives
such a ruling) and published rulings and procedures all as of the date hereof.
An opinion of counsel merely represents counsel's best judgment with respect to
the probable outcome on the merits and is not binding on the Internal Revenue
Service or the courts. There can be no assurance that positions contrary to our
opinion will not be taken by the IRS, or that a court considering the issues
would not hold contrary to such opinion. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the accuracy of the
opinion expressed herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the law or in the application or
interpretation of the federal income tax laws.
2. This letter addresses only the specific tax opinion set forth
above. This letter does not address any other federal, state, local or foreign
tax consequences that may result from the purchase, ownership or disposition of
the Notes.
<PAGE>
Federal Realty Investment Trust
November 29, 1999
Page 3 of 3
This opinion is provided to the Company only and, without our prior
consent, may not be relied upon, used, circulated, quoted or otherwise referred
to in any manner by any person, firm, governmental authority or entity
whatsoever. Notwithstanding the prior sentence, we hereby consent to the use of
the opinion letter as an exhibit to the Prospectus Supplement and to the use of
our name in the Prospectus Supplement. In giving the consent, we do not thereby
admit that we are an "expert" within the meaning of the Securities Act of 1933,
as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
Hogan & Hartson L.L.P.
<PAGE>
Exhibit 99.1
Monday November 15, 2:36 pm Eastern Time
Moody's cuts Federal Realty Investment Trust
(Press release provided by Moody's Investors Service)
NEW YORK, Nov 15 - Moody's Investors Service has downgraded the senior unsecured
debt rating of Federal Realty Investment Trust to Baa2, from Baa1, and the
rating on the REIT's preferred stock to ``baa3,'' from ``baa2.''
The rating outlook is stable.
According to Moody's, these rating actions reflect Federal Realty's rising
leverage, and resulting deterioration in coverage.
Moody's also remarked that these rating actions reflect Federal Realty's
emerging, riskier operating profile stemming from increased development
activity. These developments are connected to Federal Realty's ``Main Street''
retail concept, which emphasizes mixed use properties in upscale, urban
settings.
Although these ``Main Street'' retail efforts have been successful, they are not
without risk. Moody's commented that the ratings continue to recognize Federal
Realty's 36-year history of adding value to its portfolio through several real
estate and economic cycles.
The REIT's sound portfolio fundamentals, including its community center retail
properties, contribute to stable cash flows. Nevertheless, debt has been rising.
The following ratings were lowered: Federal Realty Investment Trust -- senior
unsecured debt to Baa2, from Baa1; senior unsecured debt shelf rating to (P)Baa2
from (P)Baa1; subordinated debt to Baa3, from Baa2; subordinated debt shelf
rating to (P)Baa3, from (P)Baa2; cumulative preferred stock to ``baa3,'' from
``baa2''; cumulative preferred stock shelf rating to (P)``baa3'' from
(P)``baa2.''
Federal Realty Investment Trust (NYSE: FRT) is a real estate investment trust
(REIT) specializing in the ownership, management, development and redevelopment
of retail properties.
At September 30, 1999 the REIT owned or had ownership interests in 123 retail
properties across the USA, with assets of approximately $1.7 billion.
<PAGE>
Exhibit 99.2
Tuesday November 16, 3:30 pm Eastern Time
S&P affirms Federal Realty Inv Trust rtgs
(Press release provided by Standard & Poor's)
NEW YORK, Nov 16 - Standard & Poor's today affirmed its ratings on Federal
Realty Investment Trust (see list).
The ratings were removed from CreditWatch, where they were placed on Sept. 7,
1999. The outlook is now stable.
The ratings were placed on CreditWatch following the announcement that it would
spin off its street retail subsidiary to shareholders. At that time, management
was also in negotiations to sell the company's community shopping center
portfolio through a merger. There are no current plans to pursue the portfolio
sale or the spin-off of its street retail assets.
The ratings and outlook acknowledge this seasoned retail REIT's quality property
portfolio and consistent financial performance, whose strengths are tempered by
its need to tap additional equity sources and sell assets to fund its
development pipeline.
Founded in 1962, Bethesda, Md.-based Federal Realty is one of the oldest REITs
in the industry. The company's business has traditionally been the ownership,
management, and redevelopment of community and neighborhood shopping centers
that are anchored by necessity-oriented tenants, such as supermarkets. However,
six years ago that strategy was expanded to include retail properties in
downtown areas of affluent communities.
Currently, the portfolio consists of 122 retail properties generally located in
densely populated areas and, in many cases, in areas with relatively high
barriers to entry. The assets are well occupied (95% average) by a diverse
tenant base, and continue to post good rental rate increases and solid same-
store net operating income growth.
The level of planned development, which appears to be more significant than in
the past, consists mainly of four mixed-use projects to be developed in phases.
While the total development costs for 2000 could approach a substantial US$150
million, the company may sell off a portion of the nonretail components of
select projects or seek joint venture partners to reduce its overall exposure.
The company's financial position has been consistently moderate over the past
few years. Leverage levels have been around 60% on a book-value basis, and, when
<PAGE>
adjusted for unrealized real estate values, closer to the 45% area. Coverage
levels for debt service, at about 2.2 times (x), and fixed charge, at about
2.0x, continue to be a bit low for the rating category but are supported by the
stability of the cash flow stream provided by the company's stabilized retail
properties.
While there is some exposure to near-term debt maturities, given the US$100
million senior unsecured notes due 2000, management is close to finalizing terms
for an unsecured financing and plans to use the proceeds to both repay the
maturing notes and reduce the bank line outstanding (US$205 million outstanding
under a US$300 million unsecured line due 2002).
OUTLOOK: STABLE
Federal Realty has a large portfolio of quality, unencumbered properties, which
adds to its financial flexibility. Given management's strong track record and
the quality of the projects planned and under development, Standard & Poor's
anticipates that the company will be successful in recycling capital through
select asset dispositions and tapping additional equity sources (likely through
the joint venture structure) to reduce its overall development exposure.
RATINGS AFFIRMED AND REMOVED FROM CREDITWATCH Issue Rating Federal Realty
Investment Trust Corporate credit rating BBB+
US$335 million senior unsecured notes
due 2000-2027 BBB+
US$75 million 5.25% convertible
subordinate debentures due 2023 BBB
US$100 million cumulative redeemable
preferred stock series A BBB
