Exhibit 10(iii)
FEDERAL REALTY INVESTMENT TRUST
PERFORMANCE SHARE AWARD AGREEMENT
This Performance Share Award Agreement (this "Agreement") is made as of
February 28, 2002 between Federal Realty Investment Trust, a Maryland real
estate investment trust (the "Trust"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇, an individual
employee of the Trust (the "Key Employee").
WHEREAS, the Compensation Committee of the Board of Trustees of the
Trust (the "Board of Trustees") has authorized the award by the Trust to the Key
Employee under the Trust's Amended and Restated 1993 Long-Term Incentive Plan
(the "Amended Plan") of a Performance Share Award for a certain number of shares
of beneficial interest of the Trust (the "Shares"); and
WHEREAS, the parties hereto desire to set forth in this Agreement their
respective rights and obligations with respect to such Shares.
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Award of Performance Shares.
1.1. The Trust hereby grants to the Key Employee, as of
February 28, 2002 (the "Award Date"), Ten Thousand (10,000) Shares (the
"Performance Shares"), subject to the restrictions and other terms and
conditions set forth herein and in the Amended Plan.
1.2. On or as soon as practicable after the Award Date, the
Trust shall cause one or more stock certificates representing the Performance
Shares to be registered in the name of the Key Employee. Such stock certificate
or certificates shall be subject to a stop-transfer order and such other
restrictions as the Board of Trustees or any committee thereof may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Shares are listed and
any applicable federal or state securities law, and the Trust may cause a legend
or legends to be placed on such certificate or certificates to make appropriate
reference to such restrictions.
1.3. The certificate or certificates representing the
Performance Shares shall be held in custody by the Chief Financial Officer of
the Trust until the Restriction
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Period (as hereinafter defined in Paragraph 4) with respect thereto shall have
lapsed. Simultaneously with the execution and delivery of this Agreement, the
Key Employee shall deliver to the Trust one or more undated stock powers
endorsed in blank relating to the Performance Shares. The Trust shall deliver or
cause to be delivered to the Key Employee or, in the case of the Key Employee's
death, to the Key Employee's Beneficiary, one or more stock certificates for the
appropriate number of Shares, free of all such restrictions, as to which the
restrictions herein shall have expired. Upon forfeiture, in accordance with
Paragraph 4, of all or any portion of the Performance Shares, the certificate or
certificates representing the forfeited Performance Shares shall be canceled.
2. Restrictions Applicable to Performance Shares.
2.1. Beginning on the Award Date, the Key Employee shall
have all rights and privileges of a stockholder with respect to the Performance
Shares, except that the following restrictions shall apply:
(a) none of the Performance Shares may be assigned or
transferred (other than by will or the laws of descent and
distribution, or in the Committee's discretion, pursuant to a
domestic relations order within the meaning of Rule 16a-12 of
the Securities Exchange Act of 1934, as amended), pledged
(subject to Paragraph 5) or sold by the Key Employee during
the Restriction Period (as hereinafter defined in Paragraph
4);
(b) all or a portion of the Performance Shares may be
forfeited in accordance with Paragraph 4; and
(c) any Shares distributed as a dividend or otherwise
with respect to any Performance Shares as to which the
restrictions have not yet lapsed shall be subject to the same
restrictions as such Performance Shares and shall be
represented by book entry and held in the same manner as the
Performance Shares with respect to which they were
distributed.
2.2. Any attempt to dispose of Performance Shares in a
manner contrary to the restrictions set forth in this Agreement shall be null,
void and ineffective.
3. Performance Period.
The Performance Period shall be the period beginning on
January 1, 2002 and ending on December 31, 2011. Within the Performance Period
there shall be ten Award Periods; each such Award Period shall begin on January
1 and end on December 31 of the same year.
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4. Restriction Period.
4.1. Subject to Paragraphs 4.2 through 4.8, the restrictions
set forth in Paragraph 2 shall apply for a period (the "Restriction Period")
from the Award Date until such Restriction Period lapses. For any Award Period,
the Restriction Period shall lapse with respect to Two Thousand (2,000)
Performance Shares if and only if the Committee determines, in accordance with
Paragraph 4.2 below, that the Performance Target (as defined in Paragraph
4.2(b)) for that Award Period has been met by the Trust.
4.2. (a) Promptly after the announcement or other publication
by the Trust of its final results of operations for each of the first through
the tenth Award Periods, the Committee shall determine whether the Performance
Target has been met by the Trust for such Award Period, and, if so, shall
determine that the Restriction Period shall lapse with regard to the number of
Performance Shares specified in Paragraph 4.1 above with respect to such Award
Period; provided, however, that the Restriction Period for any particular
Performance Shares shall not lapse unless the Key Employee tenders to the Trust
(or the Trust otherwise withholds in accordance with Paragraph 4.8) (i) the
amount of any state and federal withholding tax obligation which will be imposed
on the Trust by reason of the lapsing of the Restriction Period for such
Performance Shares or (ii) an executed promissory note evidencing the Key
Employee's obligation to repay a Tax Loan (as hereinafter defined in Paragraph
5) in the amount of any such tax obligation. The Trust will promptly notify the
Key Employee (or the executors or administrators of his estate) of its
determinations under this Paragraph 4.2 (the "Determination Notice"). The Trust
will file the Determination Notice with the minutes of the Committee.
(b) The Performance Target will have been met or
exceeded based upon the application of an annual test, which requires the
Trust's total return for the applicable Award Period to exceed the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Index1 total return for the same year. If, in any Award Period,
the Trust does not meet or exceed the Performance Target (after taking into
account the lapsing of Performance Shares resulting therefrom), the Restriction
Period will not lapse as to any Performance Shares allocable to such Award
Period.
4.3. If there are any Performance Shares as to which the
Restriction Period has not lapsed after the Committee has determined the number
of Performance
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/1/ Or a substitute index approved by the Committee, in the event the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ Index is not available.
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Shares as to which the Restriction Period will lapse with respect to the tenth
Award Period (the "Remaining Shares"), then any and all then-remaining
Performance Shares as to which the Restriction Period has not lapsed shall
terminate and be forfeited.
4.4. The Restriction Period shall lapse as to all Performance
Shares upon the occurrence of a Change in Control. In such event, if the Key
Employee tenders (or the Trust otherwise withholds in accordance with Paragraph
4.8) the amount of any state and federal withholding tax obligation which will
be imposed on the Trust by reason of the lapsing of the Restriction Period for
the Performance Shares, the Trust shall deliver or cause to be delivered to the
Key Employee, within ten (10) business days after the Change in Control, one or
more stock certificates representing those Performance Shares as to which the
Restriction Period shall have lapsed. In the event of a Change in Control, the
Trust shall make a payment to the Key Employee in the amount of federal and
state income taxes that he will incur as a result of the lapsing of the
Restriction Period with respect to all Performance Shares under this Paragraph
4.4 (the "Income Tax Payment"); provided, however, that the Trust shall withhold
from such Income Tax Payment and pay to the applicable government taxing
authorities, any amounts required to be withheld with respect to the Income Tax
Payment under applicable law.
4.5. (a) The Restriction Period shall lapse as to all
Performance Shares in the event (i) of the termination of the Key Employee due
to Disability (as defined in Paragraph 4.5(b)) or (ii) the Key Employee is
terminated by the Trust without Cause (as defined in Paragraph 4.5(b)), if the
Key Employee or his legal representative tenders (or the Trust otherwise
withholds in accordance with Paragraph 4.8) (i) the amount of any state and
federal withholding tax obligation which will be imposed on the Trust by reason
of the lapsing of the Restriction Period for such Restricted Shares or (ii) an
executed promissory note evidencing the Key Employee's obligation to repay a Tax
Loan (as defined in Paragraph 5) in the amount of any such tax obligation.
(b) For purposes of this Agreement, the terms "Cause"
and "Disability" shall have the meanings assigned to them in the Severance
Agreement between the Trust and the Key Employee in effect from time to time.
4.6. In the event (i) of the Key Employee's death or (ii) the
Key Employee resigns from employment in all capacities with the Trust, the
Restriction Period shall lapse as to (x) the number of Performance Shares as to
which the Restriction Period was to lapse at the end of the Award Period during
which the Key Employee died or resigned from employment in all capacities with
the Trust, times (y) (A) the number of months the Key Employee was employed
during the Award Period (including, in the event of the Key Employee's death,
the month in which his death occurred, as a whole month) (in the event of the
Key Employee's resignation from employment in all capacities with the Trust, if
the Key Employee resigned before the 16/th/ day of a month,
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that month shall be treated as a month in which he did not work) divided by (B)
twelve; provided, however, that the Restriction Period will not lapse as to any
Restricted Shares unless the Key Employee or his legal representative tenders
(or the Trust otherwise withholds in accordance with Paragraph 4.8) (i) the
amount of any state and federal withholding tax obligation which will be imposed
on the Trust by reason of the lapsing of the Restriction Period for such
Performance Shares or (ii) an executed promissory note evidencing the Key
Employee's or his estate's obligation to repay a Tax Loan (as defined in
Paragraph 4) in the amount of any such tax obligation. After the Restriction
Period with respect to this number of Performance Shares has lapsed, all rights
of the Key Employee to any and all then-remaining Performance Shares as to which
the Restriction Period has not lapsed shall terminate and be forfeited.
4.7. If the Key Employee is terminated by the Trust for Cause
during the Restriction Period, then all rights of the Key Employee to any and
all then-remaining Performance Shares as to which the Restriction Period has not
lapsed shall terminate and be forfeited.
4.8. In the event the Key Employee or his legal representative
(i) fails to promptly tender to the Trust any required tax withholding amount in
accordance with this Paragraph 4 or (ii) elects not to execute a promissory note
evidencing his obligation to repay a Tax Loan (in accordance with Paragraph 5)
in the amount of any required tax withholding amount, then the Trust shall
retain a portion of the Performance Shares sufficient to meet its tax
withholding obligation.
5. Tax Loan. (a) The Trust shall extend loans to the Key
Employee from time to time to provide him with funds to pay the federal and
state taxes that he will incur as a result of the lapsing of the Restriction
Period with respect to Performance Shares except with respect to federal and
state taxes incurred as a result of the lapsing of the Restriction Period with
respect to Performance Shares under Paragraph 4.4 ("Tax Loans"). The Key
Employee will execute promissory notes in the form attached to this Agreement to
evidence his obligation to repay such Tax Loans. As of each date a Tax Loan is
extended to the Key Employee, the dollar amount of such Tax Loan so issued to
the Key Employee hereunder shall not exceed 50% of the Fair Market Value of the
Shares awarded to the Key Employee hereunder as to which the Restriction Period
has then lapsed. As collateral to secure his obligation to repay any Tax Loan
extended to him hereunder and any accrued but unpaid Interest on such Tax Loan,
the Key Employee hereby (i) pledges to the Trust that number of Performance
Shares awarded to him hereunder as to which the Restriction Period has lapsed
having an aggregate value which is equal on the date of the Tax Loan to 125% of
the amount of such Tax Loan, and (ii) assigns to the Trust all quarterly cash or
other dividends paid on such Performance Shares.
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(b) In the event of a Change in Control, the Trust shall
extend a loan to the Key Employee to provide him with funds to pay the federal
and state income taxes that he will incur as a result of receipt of the Income
Tax Payment (in accordance with Paragraph 4.4) (the "Change in Control Tax
Loan"). The Key Employee will execute a promissory note in the form attached to
this Agreement to evidence his obligation to repay such Change in Control Tax
Loan.
6. Miscellaneous.
6.1. Definitions; Application of Amended Plan. Capitalized
terms used in this Agreement, unless otherwise defined herein, have the
respective meanings given to such terms in the Amended Plan. The terms of the
Amended Plan are incorporated by reference as if set forth herein in their
entirety and, except as specifically provided herein, shall govern the terms of
this Performance Share Award Agreement.
6.2. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given
when delivered in person or when deposited in the U.S. mail, registered or
certified, postage prepaid, and mailed to the respective addresses set forth
herein, unless a party changes its address for receiving notices by giving
notice in accordance with this Paragraph, in which case, to the address
specified in such notice.
6.3. Continued Employment. This Agreement shall not confer
upon the Key Employee any right with respect to continuance of employment by the
Trust.
6.4. Entire Agreement; Amendment. This Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and shall supersede all prior agreements and understandings, oral or written,
between the parties with respect thereto. No provision of this Agreement may be
amended, modified or waived at any time unless such amendment, modification or
waiver shall be agreed to in writing and signed by both of the parties hereto.
6.5. Assignment. This Agreement shall be binding upon and
inure to the benefit of the heirs and representatives of the Key Employee and
the assigns and successors of the Trust, but neither this Agreement nor any
rights hereunder, subject to Paragraph 2.1(a), shall be assignable or otherwise
subject to hypothecation by the Key Employee.
6.6. Severability. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not so held invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid
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in part, such invalidity shall in no way affect the rest of such provision not
held so invalid, and the rest of such provision, together with all other
provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect.
6.7. Governing Law. This Agreement and its validity,
interpretation, performance and enforcement shall be governed by the laws of the
State of Maryland other than the conflict of laws provisions of such laws, and
shall be construed in accordance therewith.
6.8. Certain References. References to the Key Employee in any
provision of this Agreement under circumstances where the provision should
logically be construed to apply to the Key Employee's executors or the
administrators, or the person or persons to whom all or any portion of the
Restricted Shares may be transferred by will or the laws of descent and
distribution, shall be deemed to include such person or persons.
6.9. Headings. The headings of Paragraphs hereof are included
solely for convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
6.10. Source of Payments. Payments provided under this
Agreement, if any, shall be paid in cash from the general funds of the Trust,
and no special or separate fund shall be established and no other segregation of
assets shall be made to assure payment.
6.11.Counterparts. This Agreement may be executed in multiple
counterparts with the same effect as if each of the signing parties had signed
the same document. All counterparts shall be construed together and constitute
the same instrument.
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IN WITNESS WHEREOF, the Trust has caused this Agreement to be duly
executed and the Key Employee has hereunto set his hand effective as of the day
and year first above written.
FEDERAL REALTY INVESTMENT TRUST
By:____________________________________
Name:
Title:
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
KEY EMPLOYEE:
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Address:
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FORM OF
TAX NOTE
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FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Borrower"), promises to pay to the order of
FEDERAL REALTY INVESTMENT TRUST ("Payee") at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the holder thereof may from
time to time designate in writing, in lawful money of the United States of
America, the principal sum as set forth on Schedule A hereto, as amended from
time to time, together with interest as described below on the principal balance
hereof from time to time outstanding, all in accordance with the following terms
and provisions:
1. Federal Realty Investment Trust Amended and Restated 1993 Long-Term
Incentive Plan. This promissory note (as the same may be amended, modified or
supplemented from time to time, the "Tax Note") represents the Loan referred to
in Section 11.07 of the Federal Realty Investment Trust Amended and Restated
1993 Long-Term Incentive Plan (as amended, modified or supplemented from time to
time, "the Plan") and Paragraph 5 of the Performance Share Award Agreement
between Borrower and Payee dated February 28, 2002 (the "Performance Share Award
Agreement"). Capitalized terms used in this Tax Note, unless otherwise defined
herein, have the respective meanings given to such terms in the Plan. This Tax
Note evidences a recourse, secured loan made by Payee to Borrower to assist
Borrower in paying the federal and state tax obligations incurred as a result of
Borrower's participation in the Plan. The performance of the Borrower's
obligations hereunder is secured by (a) a pledge of that number of Shares as to
which the Restriction Period has lapsed under the Performance Share Award
Agreement having an aggregate value which is equal, on the date a Loan is made,
to 125% of the principal amount of the Loan, and (b) an assignment to Payee of
all quarterly cash Dividends paid on such Shares sufficient to pay the Interest
(as hereinafter defined) hereon.
2. Interest. The unpaid principal balance of this Tax Note, outstanding
from time to time, shall bear Interest at the rate set forth on Schedule A
hereto, which rate shall be the lesser of (A) the Trust's borrowing rate and (B)
the annual dividend rate per Share divided by the Fair Market Value of a Share
on the Date of Grant, as defined in the Performance Share Award Agreement and
shall be due and payable quarterly in arrears on each date of payment of a cash
dividend on the Shares owned by Borrower pursuant to the Performance Share Award
Agreement. If no quarterly cash Dividend is paid on the Shares for a quarter,
Interest shall accrue on the last day of the quarter, and shall be satisfied
from future cash Dividends paid on such Shares. Any accrued but unpaid
1
Interest on the Tax Note shall be due and payable on the date the outstanding
principal balance of this Tax Note is due and payable.
3. Principal Payments. The outstanding principal balance of this
Tax Note is due and payable on the date 13 years from the date of the Loan.
4. Termination of Employment. In the event there is a Termination
of Employment of Borrower, the following shall apply:
a. Termination of Employment by Voluntary Resignation.
In the event of Borrower's Termination of Employment
by voluntary resignation, the outstanding balance of
the Tax Loan and any accrued but unpaid Interest
thereon shall be due and payable within ninety (90)
days of the date of Borrower's Termination of
Employment by voluntary resignation.
b. Termination of Employment by Disability or Change in
Control. In the event of the Termination of
Borrower's Employment by reason of Disability or a
Change in Control, the outstanding balance of the Tax
Note and any accrued but unpaid Interest thereon
shall be due and payable within one hundred eighty
(180) days of such Termination of Employment.
c. Termination of Employment by Death or Termination
Without Cause. In the event of Borrower's Termination
of Employment by reason of death or termination
without Cause, the outstanding balance of the Tax
Note and any accrued but unpaid Interest thereon
shall be due and payable within three hundred
sixty-five (365) days of such Termination of
Employment.
d. Termination of Employment for Cause. In the event of
Borrower's Termination of Employment that constitutes
a Discharge for Cause, the outstanding balance of the
Tax Note and any accrued but unpaid Interest thereon
shall be due and payable immediately upon the date of
Borrower's Termination of Employment for Cause.
5. Prepayment. This Tax Note may be prepaid in whole or in part
at any time, and from time to time, without penalty. All partial prepayments
shall be applied to the outstanding principal balance of the Tax Note.
6. Default. An Event of Default shall occur hereunder if the
Borrower shall fail to repay the balance of this Tax Note and any accrued but
unpaid Interest thereon
2
within the applicable time periods set forth in the foregoing Paragraphs 2, 3
and 4 hereof and such failure shall continue for a period of ten days after
written notice thereof has been given to the Borrower by the Payee. Upon the
occurrence of an Event of Default, the outstanding balance of this Tax Note and
any accrued but unpaid Interest thereon shall become immediately due and payable
at the option of the Payee. Any delay by the Payee in exercising, or any failure
of the Payee to exercise, the aforesaid option to accelerate with respect to an
Event of Default shall not constitute a waiver of its right to exercise such
option with respect to that or any subsequent Event of Default.
7. Retention of Security. If there is an Event of Default and Payee
exercises its option to accelerate this Tax Note, then in that event Payee shall
be entitled to retain that portion of the Shares awarded under the Performance
Share Award Agreement as to which the Restriction Period has lapsed that has a
Fair Market Value (as of the last day of the applicable time period for
repayment as set forth in Paragraphs 2, 3 and 4 of this Tax Note) equal to the
sum of the outstanding principal balance of this Tax Note and any accrued but
unpaid Interest thereon, such Fair Market Value and balance to be determined as
of the date of Payee's notice of acceleration.
8. Waiver; Extensions. Presentment, demand, notice of dishonor, protest
and the benefits of the homestead and all other exemptions provided debtors are
hereby waived. The Borrower agrees that he shall remain liable for the payment
hereof notwithstanding any agreement for the extension of the due date of any
amount payable hereunder made by the Payee after the maturity thereof.
9. Notices. All notices, requests, demands and other communications
with respect to this Tax Note shall be in writing and shall be delivered by
hand or sent by the United States mail, certified postage prepared, return
receipt requested, to the following addresses:
If to the Payee:
Federal Realty Investment Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
If to the Borrower:
▇▇▇▇▇▇ ▇. ▇▇▇▇
3
Any notice, request, demand or other communication delivered or sent in the
manner aforesaid shall be deemed given or made (as the case may be) upon the
date it is actually received if it is delivered by hand or third business day
after the day on which it is deposited in the United States mail. The Borrower
or Payee may change its address by notifying the other party of the new address
in any manner permitted by this Paragraph 9.
10. Severability. If any provision of this Tax Note, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of the provisions of this Tax Note, or the
application of such provision to other persons or circumstances shall not be
affected thereby, and each provision of this Tax Note shall be valid and
enforceable to the fullest extent permitted by law.
11. Successors and Assigns. This Tax Note shall be binding upon and
inure to the benefit of Borrower and Payee, and their respective heirs,
administrators, personal representatives, successors and assigns; provided,
however, that the Borrower may not assign or delegate his obligations hereunder
without the prior written consent of Payee.
12. Governing Law. This Tax Note shall be governed by and construed in
accordance with the laws of the State of Maryland, without regard to conflict of
law principles.
IN WITNESS WHEREOF, the Borrower has executed this Tax Note.
___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
4
SCHEDULE A
Date of Advance Amount Advanced Interest Rate
5
FORM OF
TAX NOTE
[to be used in connection with Change in Control Tax Loan]
_____________, ____
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇. ▇▇▇▇ ("Borrower"), promises to pay to the order of
FEDERAL REALTY INVESTMENT TRUST ("Payee") at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as the holder thereof may from
time to time designate in writing, in lawful money of the United States of
America, the principal sum of ___________________________ Dollars and No Cents,
together with interest as described below on the principal balance hereof from
time to time outstanding, all in accordance with the following terms and
provisions:
1. Federal Realty Investment Trust Amended and Restated 1993 Long-Term
Incentive Plan. This promissory note (as the same may be amended, modified or
supplemented from time to time, the "Tax Note") represents the Loan referred to
in Section 11.07 of the Federal Realty Investment Trust Amended and Restated
1993 Long-Term Incentive Plan (as amended, modified or supplemented from time to
time, "the Plan") and Paragraph 5 of the Performance Share Award Agreement
between Borrower and Payee dated February 28, 2002 (the "Performance Share Award
Agreement"). Capitalized terms used in this Tax Note, unless otherwise defined
herein, have the respective meanings given to such terms in the Plan. This Tax
Note evidences a recourse, secured loan made by Payee to Borrower to assist
Borrower in paying the federal and state tax obligations incurred as a result of
Borrower's participation in the Plan. The performance of the Borrower's
obligations hereunder is secured by (a) a pledge of that number of Shares as to
which the Restriction Period has lapsed under the Performance Share Award
Agreement having an aggregate value which is equal, on the date the Loan is
made, to 125% of the principal amount of the Loan, and (b) an assignment to
Payee of all quarterly cash Dividends paid on such Shares sufficient to pay the
Interest (as hereinafter defined) hereon.
2. Interest. The unpaid principal balance of this Tax Note, outstanding
from time to time, shall bear Interest at the rate set forth on Schedule A
hereto, which rate shall be the lesser of (A) the Trust's borrowing rate and (B)
the annual dividend rate per Share divided by the Fair Market Value of a Share
on the Date of Grant, as defined in the Performance Share Award Agreement and
shall be due and payable quarterly in arrears on each date of payment of a cash
dividend on the Shares owned by Borrower pursuant to the Performance Share Award
Agreement. If no quarterly cash Dividend is paid on the Shares for a quarter,
Interest shall accrue on the last day of the quarter, and shall be
1
satisfied from future cash Dividends paid on such Shares. Any accrued but unpaid
Interest on the Tax Note shall be due and payable on the date the outstanding
principal balance of this Tax Note is due and payable.
3. Principal Payments. The outstanding principal balance of this Tax
Note is due and payable on the date eight years from the date of the Loan.
4. Prepayment. This Tax Note may be prepaid in whole or in part at any
time, and from time to time, without penalty. All partial prepayments shall be
applied to the outstanding principal balance of the Tax Note.
5. Default. An Event of Default shall occur hereunder if the Borrower
shall fail to repay the balance of this Tax Note and any accrued but unpaid
Interest thereon within the applicable time periods set forth in the foregoing
Paragraphs 2 and 3 hereof and such failure shall continue for a period of ten
days after written notice thereof has been given to the Borrower by the Payee.
Upon the occurrence of an Event of Default, the outstanding balance of this Tax
Note and any accrued but unpaid Interest thereon shall become immediately due
and payable at the option of the Payee. Any delay by the Payee in exercising, or
any failure of the Payee to exercise, the aforesaid option to accelerate with
respect to an Event of Default shall not constitute a waiver of its right to
exercise such option with respect to that or any subsequent Event of Default.
6. Retention of Security. If there is an Event of Default and Payee
exercises its option to accelerate this Tax Note, then in that event Payee shall
be entitled to retain that portion of the Shares awarded under the Performance
Share Award Agreement as to which the Restriction Period has lapsed that has a
Fair Market Value (as of the last day of the applicable time period for
repayment as set forth in Paragraphs 2 and 3 of this Tax Note) equal to the sum
of the outstanding principal balance of this Tax Note and any accrued but unpaid
Interest thereon, such Fair Market Value and balance to be determined as of the
date of Payee's notice of acceleration.
7. Waiver; Extensions. Presentment, demand, notice of dishonor, protest
and the benefits of the homestead and all other exemptions provided debtors are
hereby waived. The Borrower agrees that he shall remain liable for the payment
hereof notwithstanding any agreement for the extension of the due date of any
amount payable hereunder made by the Payee after the maturity thereof.
8. Notices. All notices, requests, demands and other communications
with respect to this Tax Note shall be in writing and shall be delivered by hand
or sent by the United States mail, certified postage prepared, return receipt
requested, to the following addresses:
2
If to the Payee:
Federal Realty Investment Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
If to the Borrower:
▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________
_______________________
Any notice, request, demand or other communication delivered or sent in the
manner aforesaid shall be deemed given or made (as the case may be) upon the
date it is actually received if it is delivered by hand or third business day
after the day on which it is deposited in the United States mail. The Borrower
or Payee may change its address by notifying the other party of the new address
in any manner permitted by this Paragraph 8.
9. Severability. If any provision of this Tax Note, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of the provisions of this Tax Note, or the
application of such provision to other persons or circumstances shall not be
affected thereby, and each provision of this Tax Note shall be valid and
enforceable to the fullest extent permitted by law.
10. Successors and Assigns. This Tax Note shall be binding upon and
inure to the benefit of Borrower and Payee, and their respective heirs,
administrators, personal representatives, successors and assigns; provided,
however, that the Borrower may not assign or delegate his obligations hereunder
without the prior written consent of Payee.
11. Governing Law. This Tax Note shall be governed by and construed in
accordance with the laws of the State of Maryland, without regard to conflict of
law principles.
IN WITNESS WHEREOF, the Borrower has executed this Tax Note.
___________________________
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3
SCHEDULE A
Interest Rate:
4
