Exhibit 1.1
FEDERAL REALTY INVESTMENT TRUST
Common Shares and Preferred Shares
_______________
Underwriting Agreement
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November 19, 2001
XXXXXX XXXXXXX & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
as Representatives of the several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 shares of beneficial interest (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Shares"). The Shares may include the
Company's common shares of beneficial interest, par value $0.01 per share (the
"Common Shares"), or preferred shares of beneficial interest, par value $0.01
per share (the "Preferred Shares").
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the resolutions of the board of trustees of the Company or a duly appointed
committee thereof identified in such Pricing Agreement.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives
(the "Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Shares or as an obligation of any of the Underwriters to purchase the
Shares. The obligation of the Company to issue and sell any of the Shares and
the obligation of any of the Underwriters to purchase any of the Shares shall be
evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number of
such Designated Shares, the initial public offering price of such Designated
Shares, the purchase price to the Underwriters of such Designated Shares, the
names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters and the number of such Designated Shares to
be purchased by each Underwriter and shall set forth the date, time and manner
of delivery of such Designated Shares and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the registration
statement and prospectus with respect thereto) the terms of such Designated
Shares. 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) A registration statement on Form S-3 (File No. 333-63619) (the
"Registration Statement") in respect of the Shares has 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 prospectus contained therein, to
the Representatives for each of the other Underwriters, has 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 order 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 proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Registration
Statement or filed with the Commission pursuant to Rule 424(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 prospectus contained in the Registration Statement at the
time such part of the registration statement became effective, each as
amended at the time such part of the Registration Statement became
effective or such part of the Rule 462(b)
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Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Shares, 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 Shares 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 Underwriter of
Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will
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conform, in all material respects to the requirements of the 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 Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(d) The Company has been duly organized and is validly existing and in
good standing as a real estate investment trust under the laws of the state
of Maryland, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; the
Company has interests in a number of entities (collectively, the
"Entities"), identified on Annex III, which have been duly organized and
are validly existing as corporations, partnerships, limited liability
corporations or joint ventures as the case may be, in good standing under
the laws of the jurisdiction of their organization (except for joint
ventures, which have no good standing certificate requirements), with full
power and authority to own, lease and operate their properties and conduct
their business as described in the Prospectus; except as otherwise denoted
in Annex III hereto, all of the equity interests in the Entities are owned
by the Company free and clear of all pledges, liens, encumbrances, claims,
security interests and defects; all of the issued and outstanding stock of
each Entity that is a corporation has been duly authorized and validly
issued, 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;
(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,
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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 Designated Shares have been duly and validly authorized, and,
when Designated Shares are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and 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; and the Designated Shares conform
to the description thereof contained in the Registration Statement and the
Prospectus as amended or supplemented with respect to such Designated
Shares;
(h) The issue and sale of the Designated Shares and the compliance by
the Company with all of the provisions of this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Entities is a party or by
which the Company or any of the Entities is bound or to which any of the
property or assets of the Company or any of the Entities is subject, nor
will such action result in any violation of the provisions of the
Declaration of Trust or 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 Shares or the consummation by the
Company of the transactions contemplated by this Agreement or any Pricing
Agreement, except such as have been, or will have been prior to the Time of
Delivery (as defined in Section 4 hereof), obtained under the Act and the
Exchange Act and except for the listing of the Designated Shares on the New
York Stock Exchange, Inc. 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 Shares 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
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Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(j) The consolidated financial statements of the Company and the
Entities, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly the
financial position and the results of operations of the Company and the
Entities at the indicated dates and for the indicated periods. Such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout
the periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary financial and
statistical data 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;
(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) Xxxxxx Xxxxxxxx LLP who has audited the consolidated balance sheets
of the Company and subsidiaries as of December 31, 2000 and 1999 and the
related consolidated statements of operations, common shareholders' equity,
and cash flows for each of the years in the two year period ended December
31, 2000 and Xxxxx Xxxxxxxx LLP who has audited the accompanying
consolidated statement of operations, shareholders' equity and cash flows
of the Company for the period ended December 31, 1998, filed with the
Commission as part of, or incorporated by reference in, the Registration
Statement and Prospectus, are each independent public accountants as
required by the Act and the rules and regulations of the Commission
promulgated thereunder;
(o) The conditions for use of registration statements on Form S-3 set
forth in the General Instructions on Form S-3 have been satisfied and the
Company is entitled to use such form for the transaction contemplated
herein;
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(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; and
(q) With respect to all tax periods regarding which the Internal Revenue
Service is or will be entitled to assert any claim, the Company has met the
requirements for qualification as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended
(the "Code"), and the Company's present and contemplated operations, assets
and income continue to meet such requirements; and the Company is neither
an "investment company" nor a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
such Designated Shares, the several Underwriters propose to offer such
Designated Shares for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form 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 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 Shares.
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(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 Shares 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 Shares or, if applicable, such earlier time as
may be required by
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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
Shares 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 Shares or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Designated Shares and prior to the Time of Delivery for such
Designated Shares which shall be reasonably disapproved by the
Representatives for such Designated Shares promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Designated Shares, 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 Designated Shares, of the
suspension of the qualification of such Designated Shares 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 Designated Shares or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Shares
for offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of such
Designated Shares, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Promptly to furnish 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 Designated Shares 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
8
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 or the Exchange Act, to
notify the Representatives and upon their request to file such document and
to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Shares, as
notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Shares, not to offer, sell, contract to sell
or otherwise issue any shares of capital stock of the Company which are
substantially similar to such Designated Shares, without the prior written
consent of the Representatives;
(f) To use the net proceeds received by it from the sale of the
Designated Shares in the manner specified in the Prospectus under the
caption "Use of Proceeds"; and
(g) To qualify as a "real estate investment trust" under the Internal
Revenue Code of 1986, as amended (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 Shares 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 blue sky and
legal investment surveys and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the qualification of the Shares 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 filing fees incident to any required review by the
9
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (v) the cost of preparing certificates for the Shares; (vi) the costs
and charges of any transfer agent or registrar or dividend disbursing agent; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement relating to such Designated Shares shall be subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the Company in, or incorporated by reference
from this Agreement into, the Pricing Agreement relating to such Designated
Shares are, at and as of the Time of Delivery for such Designated Shares, 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 Shares 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) Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Shares, with respect to the
organization of the Company, the validity of the Designated Shares being
delivered at such Time of Delivery, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxx & Xxxxxxx L.L.P., counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Shares, 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 current properties
and conduct its business as described in the Prospectus; SRI has been
duly organized and is validly existing as a corporation in good standing
under the laws of the state of Maryland, with full power and authority to
own its current properties and conduct its business as described in the
Prospectus; the Company and SRI are authorized to transact business in
the states specified in such
10
opinion as of the respective dates of the certificates specified in such
opinion; and the conditions for use of a registration statement on Form
S-3 have been satisfied;
(ii) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by
the Company;
(iii) The information in the Prospectus as amended or supplemented
under the captions "Description of Series B Preferred Shares" and
"Description of Preferred Shares," to the extent that such information
constitutes matters of law or legal conclusions, has been reviewed by
such counsel, and is correct in all material respects;
(iv) The issue and sale of the Designated Shares being delivered
at such Time of Delivery and the compliance by the Company with all of
the provisions of this Agreement and the Pricing Agreement with respect
to the Designated Shares and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of Title 8 of the Corporations and Associations Article of the
Annotated Code of Maryland, the Declaration of Trust or By-laws of the
Company or any applicable law, rule, regulation, order, judgement or
decree known to such counsel of any Maryland court or governmental agency
or body having jurisdiction over the Company or SRI or any of their
respective properties or any of the agreements identified in Schedule A
hereto;
(v) No consent, approval, authorization, order, registration or
qualification of or with the Commission or any Maryland court or
governmental agency or body is required for the issue and sale of the
Designated Shares being delivered at such Time of Delivery or the
consummation by the Company of the transactions contemplated by this
Agreement or the Pricing Agreement, except such as have been obtained
under the Act and the Exchange Act and except for the listing of the
Designated Shares on the New York Stock Exchange, Inc. 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 Shares
by the Underwriters;
(vi) 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
(vii) 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 Shares
(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 rules and
regulations thereunder; if applicable, the Rule 434
11
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
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 Representatives shall have
received the opinion or opinions of Xxxxx & Xxxxxxx L.L.P., Tax Counsel to
the Company, dated the Time of Delivery for such Designated Shares, in form
and substance satisfactory to the Representatives, 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,
1996, and the Company's current and proposed organization and method of
operation including distributions (as described in the Prospectus,
Prospectus Supplement, the Company's Current Report on Form 8-K filed with
the Commission on November 15, 2001 (hereafter, the "Company's Form 8-K")
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, 2001, and thereafter; and (2) the
discussion in (x) the Prospectus Supplement under the caption "Federal
Income Tax Consequences"; (y) the Prospectus under the caption "Federal
Income Tax Considerations," except we note that the statement to the effect
that the Company is
12
generally required to distribute to shareholders 95% of its taxable income
each year is not correct for tax years of the Company beginning after
December 31, 2000, for which periods the Company is generally required to
dostribute to shareholders 90% of its taxable income; and (z) the Company's
Form 8-K under the caption "Federal Income Tax Consequences" which is
incorporated by reference into the Prospectus, to the extent that they
discuss matters of law or legal conclusions or purport to describe certain
provisions of the federal tax laws, are correct summaries of the matters
discussed therein.
(e) On the date of the Pricing Agreement for such Designated Shares and
at the Time of Delivery for such Designated Shares, 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
date of the Pricing Agreement, 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 Shares 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 Shares (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 Shares there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities in New York
13
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 Shares 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; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Shares 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 Shares, 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 Shares, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Shares
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Shares.
(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 Shares, or any
amendment or
14
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 Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel (unless separate counsel is required due to
conflict of interest) or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without written consent of the indemnified party, affect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromises or judgment (i) includes an unconditional release
of the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above in respect of any losses, claims damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Shares
15
on the other from the offering of the Designated Shares to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Shares
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 Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Shares and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and trustee of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
16
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Shares which it has agreed to purchase under the Pricing Agreement
relating to such Designated Shares, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Designated Shares 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 Shares, 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
Shares 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 Shares, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Shares, the Representatives or the Company shall have the right to postpone the
time of Delivery for such Designated Shares 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 Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Designated Shares which remains unpurchased does
not exceed one-tenth of the aggregate number of the Designated Shares, then
the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Designated Shares which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated Shares
and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Designated Shares which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Shares 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 Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of Designated Shares which remains unpurchased exceeds
one-tenth of the aggregate number of the Designated Shares, 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 Shares of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Shares 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.
17
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 Shares.
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 Shares 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 (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 Shares, but
the Company shall then be under no further liability to any Underwriter with
respect to such Designated Shares except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares 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: Secretary; 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 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 Shares 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.
18
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.
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19
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President - General
Counsel and Secretary
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXX X. XXXXXXXXXX III
----------------------------------
Name: /s/ Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
For themselves and as Representatives of the other Underwriters named in
Schedule I of Annex I hereto.
20
SCHEDULE A
Indenture dated December 13, 1993, related to the Trust's 7.48% Debentures due
August 15, 2026; 8 7/8% Senior Notes due January 15, 2000; 8% Notes due April
21, 2002; 6 5/8% Notes due 2005; 6.82% Medium Term Notes due August 1, 2027;
6.74% Medium Term Notes due March 10, 2004; and 6.99% Medium Term Notes due
March 10, 2006, filed with the Commission on December 13, 1993 as exhibit 4(a)
to the Trust's Registration Statement on Form S-3, (File No. 33-51029) and
amended on Form S-3 (File No. 33-63687), effective December 4, 1995 is
incorporated herein by reference thereto.
Indenture dated September 1, 1998 related to the Trust's 8.75% Notes due
December 1, 2009 filed as exhibit 4(a) to the Trust's Registration Statement on
Form S-3 (File No. 333-63619) is incorporated herein by reference thereto.
Credit Agreement Dated as of December 19, 1997, and as subsequently amended, by
and among Federal Realty Investment Trust, as Borrower, The Financial
Institutions Party Thereto and Their Assignees Under Section 13.5.(a), as
Lenders, Corestates Bank, N.A., as Syndication Agent, First Union National Bank,
as Administrative Agent and as Arranger, and Xxxxx Fargo Bank, as Documentation
Agent and as Co-Arranger.
Term Loan Agreement, dated as of December 22, 1998, and as subsequently amended,
by and among Federal Realty Investment Trust, as Borrower, the Financial
Institutions Party Thereto and Their Assignees Under Section 13.5.(d), as
Lenders, Commerzbank Aktiengesellschaft, New York Branch as Syndication Agent,
PNC, National Association, as Administrative Agent and Fleet National Bank, as
documentation agent.
Building Loan Agreement among FRIT San Xxxx Town and Country Village LLC, San
Xxxx Residential, Inc. and Street Retail, Inc. jointly and severally as
Borrower, Commerzbank AG, New York Branch, Fleet National Bank, Bayerische Hypo-
Und Vereinsbank AG, New York Branch and the Other Lenders named therein.
ANNEX I
Pricing Agreement
-----------------
, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
[ ]
As representatives of the several
Underwriters named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Federal Realty Investment Trust, a Maryland real estate investment trust
(the "Company"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated , 2001 (the "Underwriting
Agreement"), between the Company on the one hand and Xxxxxx Xxxxxxx & Co.
Incorporated, [ ] on the other hand, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Shares
specified in Schedule II hereto (the "Designated Shares"). 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 Shares 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 Shares 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 Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the number of Designated Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
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I-2
If the foregoing is in accordance with your understanding, please sign and
return to us four 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:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
[ ]
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By:
----------------------------------
Name:
Title:
For themselves and as Representatives of the other
Underwriters named in Schedule I hereto.
I-3
SCHEDULE I
Number of
Designated Shares
Underwriter to be Purchased
----------- ------------------
Total
SCHEDULE II
Title of Designated Shares:
Number of Designated Shares:
Overallotment Option:
Initial Offering Price to Public:
Purchase price per share for Designated Shares:
Liquidation Preference, if applicable:
Specified Funds for Payment of Purchase Price:
Dividend Payment Dates, if applicable:
Redemption provisions, if applicable:
Sinking fund requirements, if applicable:
Names and addresses of Representatives: Xxxxxx Xxxxxxx & Co. Incorporated
Address for Notices, etc.: x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxx, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
Other Terms:
Time of Delivery:
Closing Location:
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, Xxxxxx Xxxxxxxx LLP
shall furnish letters to the Underwriters to the effect that (it being
understood that Xxxxxx Xxxxxxxx LLP shall not be required to address any periods
to April 1, 1999):
1. 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;
2. 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)
examined 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");
3. 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 (6)(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 applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations;
4. 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;
5. 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;
6. 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 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;
II-2
(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 or decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
7. 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.
II-3
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
Shares for purposes of the letter delivered at the Time of Delivery for such
Designated Shares.
II-4
ANNEX III
Corporations (including Subsidiaries), Partnerships, Limited Liability Companies
and Joint Ventures of Federal Realty Investment Trust ("FRIT")
FEDERAL REALTY INVESTMENT TRUST
-------------------------------
FR Associates Limited Partnership ("FR") 99%
Andorra Associates 99% (1% FR)
Governor Plaza Associates 99% (1% FR)
Shopping Center Associates 99% (1% FR)
Xxxxxx Enterprises Ii Limited Partnership 99% (1% FR)
Virginia Real Estate Investors Limited Partnership 99.762% (.238% FR)
FRIT Escondido Promenade, LLC 70%
FRIT Leasing & Development Services, Inc. 100% voting stock
Congressional Plaza Associates 55.7065%
FR Pike 7 Limited Partnership (DownREIT) 99%
Federal Realty Partners L. P. (Master DownREIT- 576,669 units 40 units (FRLP Inc.)
outstanding - 164,952 units have been redeemed)
Federal Realty Partners, Inc. 100% voting stock
Xxxxxxxx'x Plaza Limited Partnership (DownREIT) 1% Gen. Partner Int.
FRLP, Inc. 100% voting stock
FR Leesburg Plaza, LP (DownREIT-352,500 total units issued) 214,500 units (LLC)
FR Leesburg Plaza, LLC 100%
FRIT Property Services, Inc. (f/k/a Terranomics Retail 100% nonvoting stock
Services, Inc. f/k/a TRS Acquisition, Inc.)
Ravenswood Development Services, Inc. 100% nonvoting stock
Federal Realty Management Services, Inc. 100% voting stock
FR Federal Plaza, Inc. 100% voting stock
FR Federal Plaza, LLC 100%
Street Retail, Inc. 100% voting stock
STREET RETAIL, INC.
-------------------
SRI Old Town, LLC 000%
Xxxxxx Xxxxxx Xxxxxx Xxxxx I, LLC 90%
Street Retail Forest Hills II, LLC 90%
Street Retail Tempe I, LLC 85%
Street Retail West GP, Inc. ("SRWGP") 100% voting stock
Street Retail West I, L.P. 90% (10% SRI)
Street Retail West II, L.P. 90% (10% SRI)
Xxxxxx Xxxxxx Xxxx 0, X.X. 90% (10% SRI)
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
Street Retail West 6, L.P., 90%
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
Xxxxxx Xxxxxx Xxxx 00, X.X. 90%
Street Retail San Antonio, LP .1% SRI San Antonio
99.9% SRI Texas
SRI San Antonio, Inc. (f/k/a Dim Sum, Inc. 100% voting stock
f/k/a FR Acquisition Holding Co., Inc.)
SRI Texas, Inc. 100% voting stock
JS&DB, Inc. 100% voting stock
SRI Holding Company, Inc. 100% nonvoting stock
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
FRIT San Xxxx Town and Country Village, LLC 75%
San Xxxx Residential, Inc. 100% nonvoting stock
580 Market, LLC 100%
Xxxxxxx Row Services, Inc. 100% voting
Xxxxxxx Row ROF, Inc. 100% voting
La Rive Gauche San Xxxx, LLC 37.5%
Straits Xxxxxxx Row, LLC 90%
Xxxxxxx Row Association, a California non-profit mutual benefit corporation
III-2
Pricing Agreement
-----------------
November 19, 2001
Xxxxxx Xxxxxxx & Co. Incorporated
First Union Securities, Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Barney Inc.
As representatives of the several
Underwriters named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Federal Realty Investment Trust, a Maryland real estate investment trust
(the "Company"), proposes, subject to the terms and conditions stated herein and
in the Underwriting Agreement, dated November 19, 2001 (the "Underwriting
Agreement"), between the Company on the one hand and Xxxxxx Xxxxxxx & Co.
Incorporated, First Union Securities, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated and Xxxxxxx Xxxxx Barney Inc. on the other hand, to issue and
sell to the Underwriters named in Schedule I hereto (the "Underwriters") the
Shares specified in Schedule II hereto (the "Designated Shares"). 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 Shares 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 Underwriters of the Designated Shares 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 Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at the purchase price to
the Underwriters set forth in Schedule II hereto, the number of Designated
Shares set forth opposite the name of such Underwriter in Schedule I hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
If the foregoing is in accordance with your understanding, please sign and
return to us four 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: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President - General
Counsel and Secretary
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX BARNEY INC.
BY: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXXX X. XXXXXXXXXX III
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
For themselves and as Representatives of the other
Underwriters named in Schedule I hereto.
3
SCHEDULE I
Number of
Designated Shares
Underwriter to be Purchased
-------------- ---------------------
Xxxxxx Xxxxxxx & Co. Incorporated 1,047,500
First Union Securities, Inc. 1,047,500
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx 1,047,500
Incorporated
Xxxxxxx Xxxxx Barney Inc. 1,047,500
X.X. Xxxxxxx & Sons, Inc. 30,000
Banc of America Securities LLC 30,000
Bear, Xxxxxxx & Co. Inc. 30,000
CIBC World Markets Corp. 30,000
Xxxx Xxxxxxxx Xxxxxxx 30,000
Deutsche Banc Alex. Xxxxx Inc. 30,000
H&R Block Financial Advisors, Inc. 30,000
HSBC Securities (USA) Inc. 30,000
McDonald Investments Inc., a KeyCorp Company 30,000
Prudential Securities Incorporated 30,000
Quick and Xxxxxx 30,000
Xxxxxxx Xxxxx & Associates, Inc. 30,000
Xxxxxxx Xxxxxx & Co., Inc. 30,000
Xxxxxx Xxxxxxx Incorporated 30,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. 30,000
Wachovia Securities, Inc. 30,000
Xxxxx Fargo Xxx Xxxxxx, LLC 30,000
Advest Inc. 15,000
Xxxxxx X. Xxxxx & Co. Incorporated 15,000
BB&T Capital Markets, a Division of Xxxxx & Xxxxxxxxxxxx 15,000
Xxxxxxx Xxxxx & Co. 15,000
Xxxxxxxxx & Company LLC 15,000
X.X. Xxxxxxxx & Co. 15,000
Xxxxxxxxxx & Co. Inc. 15,000
Fifth Third Securities, Inc. 15,000
Gibraltar Securities Co. 15,000
Gruntal & Co., L.L.C. 15,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 15,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC 15,000
X.X. Xxxx & Associates, Inc. 15,000
XxXxxx, Xxxxx & Co., Inc. 15,000
Mesirow Financial, Inc. 15,000
Xxxxxx/Xxxxxx Incorporated 15,000
Pershing/ a Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx 15,000
Xxxx, Xxxx & Co. LLC 15,000
Southwest Securities, Inc. 15,000
Xxxxxx, Xxxxxxxx & Company Incorporated 15,000
---------
Total 5,000,000
=========
SCHEDULE II
Title of Designated Shares: 8 1/2% Series B Cumulative Redeemable Preferred
Shares
Number of Designated Shares: 5,000,000
Overallotment Option: 750,000
Initial Offering Price to Public: $25.00
Purchase price per share for Designated Shares: $24.2125
Liquidation Preference: $25.00 per Series B Cumulative Redeemable Preferred
Share
Specified Funds for Payment of Purchase Price: Immediately available funds
Dividend Payment Dates: The last day of January, April, July and October,
beginning on January 31, 2002
Redemption provisions: Except in certain circumstances relating to the
preservation of the Company's status as a REIT for
federal income tax purposes, the Series B Cumulative
Redeemable Preferred Shares will not be redeemable prior
to November 27, 2006. On or after November 27, 2006, the
Company, at its option upon not less than 30 or more
than 60 days' written notice, may redeem the Series B
Cumulative Redeemable Preferred Shares, in whole or in
part, at any time or from time to time, at a redemption
price of $25.00 per share, plus all accumulated and
unpaid dividends thereon to the date of redemption.
Sinking fund requirements: None
Names and addresses of Representatives: Xxxxxx Xxxxxxx & Co. Incorporated,
First Union Securities, Inc., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxxx Xxxxx Barney
Inc.
Address for Notices, etc.: x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxx,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
Other Terms: None
Time of Delivery: November 27, 2001
Closing Location: Sidley Xxxxxx Xxxxx & Xxxx llp, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000