Exhibit 1.1
FEDERAL REALTY INVESTMENT TRUST
Common Shares and Preferred Shares
---------------
Underwriting Agreement
June 6, 2002
FIRST UNION SECURITIES, INC.
as Representative of the several Underwriters
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 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 substantially the form of Annex I
hereto, with such additions and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein and therein, to issue and
sell to the firms named in Schedule I to the applicable Pricing Agreement (such
firms constituting the "Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its shares of beneficial interest
(the "Shares") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Shares"). If specified in such
Pricing Agreement, the Designated Shares may consist of a specified number of
shares that the Underwriters, acting severally and not jointly, have agreed to
purchase (the "Initial Shares") and a specified number of shares that the
Underwriters, acting severally and not jointly, have the option to purchase to
cover over allotments, if any (the "Option Shares"), in each case on the terms
and subject to the conditions set forth in this Agreement and such Pricing
Agreement. 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.
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 any of 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 (and, if applicable, the
aggregate number of Initial Shares and Option 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 and time 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
telecopied communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-63619) in
respect of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); the Registration Statement (as defined
below) and any post-effective amendments thereto, each in the form
heretofore delivered to the Representatives, excluding exhibits to such
Registration Statement but including all documents incorporated by
reference in the prospectus contained therein, have been declared effective
by the Commission in such form; 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 or will become effective upon filing,
no other documents with respect to the Registration Statement have
heretofore been filed or transmitted for filing with the Commission (other
than prospectuses filed pursuant to Rule 424(b) under the Act, each in the
form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Registration Statement, any
post-effective amendments thereto or the Rule 462(b) Registration
Statement, 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 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) 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
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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;
all references herein to information which is "contained" or "included" in
the Registration Statement, any Preliminary Prospectus, any Prospectus, any
Prospectus as amended or supplemented or any Rule 434 Prospectus (and all
references of like import) shall be deemed to mean and include all such
information which is incorporated or deemed to be incorporated by reference
therein; and if the Company elects to rely on Rule 434 under the Act, any
reference to the Prospectus shall be deemed to include, without limitation,
the form of prospectus and the abbreviated term sheet, taken together,
provided to the Underwriters by the Company in reliance on Rule 434 under
the Act (the "Rule 434 Prospectus"));
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made; and
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may 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 and is fully paid and non-assessable; no options, warrants or other
rights to convert any obligations into partnership or other ownership
interests in the Entities are outstanding; and the Company and the Entities
are duly qualified to transact business in all jurisdictions in which the
Company and the Entities are transacting business and in which the conduct
of their respective businesses requires such qualification, except where
the failure to so qualify would not have a material adverse effect on the
condition, financial or 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 subsequent issuances, if any, of
Common Shares pursuant to (x) the Company's Dividend Reinvestment and Share
Purchase Plan as in effect on the date of the applicable Pricing Agreement,
(y) any of the Company's employee or trustee benefits plans, including upon
exercise of share options granted pursuant thereto, as such plans are in
effect on the date of the applicable Pricing Agreement or (z) the exercise
of contractual rights existing on the date of the applicable Pricing
Agreement by the current and former holders of
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partnership or other interests in certain of the "DownREIT" and other
Entities listed in Annex III hereto which may result in the issuance of
Common Shares of the Company) or any increase in the consolidated long-term
debt of the Company or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and the Entities taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable, and none of the outstanding shares of capital stock of the
Company was issued in violation of any preemptive or other similar rights
of any securityholder of the Company;
(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
non-assessable; 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; except as set forth
under the caption "Limitation on Shareholder Liability; Indemnification of
Shareholders" appearing under Item 1 of the Company's Form 8-A/A filed with
the Commission on June 6, 2002, no holder of the Designated Shares is or
will be subject to personal liability by reason of being such a holder; and
the issuance of the Designated Shares is not subject to any preemptive or
other similar rights of any securityholder of the Company;
(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;
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(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Entities is a party or of which any property of the Company or any of the
Entities is the subject which, if determined adversely to the Company or
any of the Entities, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders' equity
or results of operations of the Company and the Entities; and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(j) The consolidated financial statements of the Company and the
Entities, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly the
financial position and the results of operations of the Company and the
Entities at the indicated dates and for the indicated periods. Such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout
the periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary financial and
statistical data contained in the Prospectus present fairly the information
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
(other than 00 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, 00-00 Xxxx Xxxx (Xxxxx
Xxxxxxxx), Xxxxxxxx, Xxxxxxxxxxx and 000-000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx, all of which were sold on April 30, 2002, and, if applicable, other
than Uptown Shopping Center and Apartments located in Portland, Oregon) 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, which has audited the consolidated balance
sheets of the Company and subsidiaries as of December 31, 2001, and 2000
and the related consolidated statements of operations, common shareholders'
equity, and cash flows for each of the years in the three year period ended
December 31, 2001, filed with the Commission as part of, or incorporated by
reference in, the Registration Statement and
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Prospectus, was, at all times until its replacement as the Company's
auditor in June 2002, an independent public accountant as required by the
Act and the rules and regulations of the Commission promulgated thereunder;
(o) The conditions for use of registration statements on Form S-3 set
forth in the General Instructions on Form S-3 have been satisfied and the
Company is entitled to use such form for the transaction contemplated
herein;
(p) Although the Company is aware of the presence of hazardous
substances, hazardous materials, toxic substances or waste materials
("Hazardous Materials") on certain of its properties, nothing has come to
the attention of the Company which, at this time, would lead the Company to
believe that the presence of such Hazardous Materials, when considered in
the aggregate, would materially adversely affect the financial condition of
the Company. In connection with the construction on or operation and use of
the properties owned or leased by the Company or the Entities, the Company
represents that, as of the date of this Agreement, it has no knowledge of
any material failure by the Company or the Entities to comply with all
applicable local, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
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 wire transfer of
federal or other immediately available funds to an account at a bank located in
one of the 48 contiguous states of the United States of America (which account
shall be designated by the Company upon at least forty-eight hours' prior notice
to the Representatives), all at the place and time and date specified in or
pursuant to such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing. The time and date
of delivery of and
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payment for the Initial Shares (or, if the applicable Pricing Agreement does not
grant the Underwriters an option to purchase Option Shares, the Designated
Shares) is herein called the "Time of Delivery" for such Shares, and, if the
applicable Pricing Agreement grants the Underwriters an option to purchase
Option Shares and if the Underwriters exercise such option, in whole or in part,
the time and date of delivery of such Option Shares is hereinafter called the
"Option Closing Time" 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 as amended or supplemented
pursuant to Rule 424(b) under the Act not later than the Commission's close
of business on the second business day following the execution and delivery
of the Pricing Agreement relating to the applicable Designated Shares or,
if applicable, such earlier time as may be required by Rule 424(b), or if
the Company elects to rely on Rule 434 under the Act, immediately following
execution and delivery of the applicable Pricing Agreement, to prepare an
abbreviated term sheet relating to the Designated 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 (or, if the applicable
Pricing Agreement provides for an over-allotment option, prior to the
Option Closing Time or, if such over-allotment option is not exercised by
the Underwriters, prior to the expiration of such over-allotment option)
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 (or, if the applicable Pricing Agreement provides for an
over-allotment option, after the Option Closing Time or, if such
over-allotment option is not exercised by the Underwriters, after the
expiration of such over-allotment option) 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
8
Prospectus as amended or supplemented, 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 as amended or
supplemented or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any Prospectus as amended or supplemented relating to
the Designated 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 to the Underwriters in New York City with
copies of the Prospectus, as amended or supplemented, in such quantities as
the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Designated 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
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
as amended or supplemented is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
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 on and including the date of the
Pricing Agreement for such Designated Shares and continuing through and
including the 60th day after the date of the Pricing Agreement, not to
offer, sell, contract to sell, pledge or otherwise issue or dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
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effective economic disposition due to cash settlement or otherwise) by the
Company), directly or indirectly, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position with the
meaning of Section 16 of the Exchange Act and the rules and regulations of
the Commission promulgated thereunder with respect to, (i) if such
Designated Shares are Common Shares, any Common Shares, any shares of
capital stock of the Company which are substantially similar to Common
Shares or any securities convertible into or exercisable or exchangeable
for Common Shares or any shares of capital stock of the Company which are
substantially similar to Common Shares or (ii) if such Designated Shares
are Preferred Shares, any such Preferred Shares, any shares of capital
stock of the Company which are substantially similar to such Preferred
Shares or any securities convertible into or exercisable or exchangeable
for any such Preferred Shares or any shares of capital stock of the Company
which are substantially similar to such Preferred Shares, in each case
without the prior written consent of the Representatives; provided,
however, that the foregoing restrictions shall not prohibit the sale of
such Designated Shares to the Underwriters pursuant to this Agreement and
the applicable Pricing Agreement, and shall not prohibit the Company from
issuing Common Shares pursuant to (x) the Company's Dividend Reinvestment
and Share Purchase Plan as in effect on the date of the applicable Pricing
Agreement, (y) any of the Company's employee or trustee benefit plans,
including upon exercise of share options granted pursuant thereto, as such
plans are in effect on the date of the applicable Pricing Agreement or (z)
the exercise of contractual rights existing on the date of the applicable
Pricing Agreement by current and former holders of partnership or other
interests in certain of the "DownREIT" and other Entities listed in Annex
III hereto which may result in the issuance of Common Shares by the
Company.
(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 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
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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 (and,
if applicable, at and as of the Option Closing Time for any 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 (in rendering such opinion, Sidley
Xxxxxx Xxxxx & Xxxx llp may rely, as to all matters arising under or
governed by the laws of the State of Maryland, on the opinion of Xxxxx &
Xxxxxxx L.L.P.);
(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 is a real estate investment trust formed and
validly existing and in good standing (as of the date of the
applicable good standing certificate referred to in such opinion)
under the laws of the State of Maryland and has the trust power and
trust authority under the Title 8 of the Corporations and
11
Associations Article of the Annotated Code of Maryland (the "Maryland
REIT Law"), its Declaration of Trust and its Bylaws to own its current
properties and to conduct its business as described in the Prospectus
as amended and supplemented in relation to the Designated Securities.
The Company is registered, qualified or authorized to transact
business as a foreign entity in the respective states specified in
such opinion as of the respective dates listed therein;
(ii) Street Retail, Inc., a Maryland corporation ("SRI"), was
incorporated and is validly existing and in good standing (as of the
date of the applicable good standing certificate specified in such
opinion) under the laws of the State of Maryland and has the corporate
power and corporate authority under the Maryland General Corporation
Law, the SRI Articles and the SRI Bylaws to own its current properties
and to conduct its business as described in the Prospectus;
(iii) This Agreement and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and
delivered by the Company;
(iv) The Designated Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and
the Pricing Agreement with respect to the Designated Shares and, when
issued in accordance with the provisions of this Agreement and such
Pricing Agreement, will be validly issued, fully paid and
non-assessable; except as set forth under the caption "Limitation on
Shareholder Liability; Indemnification of Shareholders" appearing
under Item 1 of the Company's Form 8-A/A filed with the Commission on
June 6, 2002, no holder of the Designated Shares is subject to
personal liability by reason of being such a holder; and no holder of
outstanding Common Shares or Preferred Shares has any preemptive right
arising under the Maryland REIT Law, the Maryland General Corporation
Law or the Company's Declaration of Trust or Bylaws to subscribe for
or purchase any of the Designated Shares or, to such counsel's
knowledge, any contractual right to subscribe for or purchase any of
the Designated Shares;
(v) The issued and outstanding Common Shares and Preferred
Shares have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital
stock of the Company was issued in violation of any preemptive right
arising under the Maryland REIT Law, the Maryland General Corporation
Law or the Company's Declaration of Trust or Bylaws to subscribe for
or purchase any such shares or, to such counsel's knowledge, any
contractual right to subscribe for or purchase any such shares;
(vi) The information in the Prospectus as amended and
supplemented under the caption "Description of Preferred Shares" (if
the Designated Shares are Preferred Shares), in Item 1 of the
Company's Form 8-A/A filed with the Commission on June 6, 2002 and in
Item 1 of the Company's Form 8-A/A dated March 11, 1999, in each case
to the extent that such information constitutes a
12
summary of provisions of the Company's Declaration of Trust or Bylaws,
a summary of the Rights Agreement, matters of law or legal
conclusions, has been reviewed by such counsel and is correct in all
material respects;
(vii) The Registration Statement has been declared effective
under the Act; the required fil1ing of the Prospectus as amended and
supplemented in relation to the applicable Designated Shares pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b); and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission. The Company meets the requirements for use of Form S-3
with respect to the issuance and sale of the Designated Shares;
(viii) The execution, delivery and performance as of the date of
such opinion by the Company of this Agreement and the Pricing
Agreement with respect to the Designated Shares and the issuance and
sale of the Designated Shares being issued on the date of such opinion
do not (i) violate the Maryland REIT Law, (ii) violate the Company's
Declaration of Trust or Bylaws, (iii) to such counsel's knowledge,
violate any applicable law, rule, regulation, order, judgment or
decree of any Maryland agency or court, or (iv) breach or constitute a
default under the agreements listed in Schedule A to this Agreement
(other than with respect to the compliance by the Company with the
financial and numerical covenants contained therein, as to which such
counsel need express no opinion);
(ix) The Registration Statement and the Prospectus, excluding
the documents incorporated by reference therein, and each amendment or
supplement to the Registration Statement and Prospectus, excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to
which such counsel need express no opinion), complied as to form in
all material respects with the requirements of the Act and the rules
and regulations of the Commission thereunder; if applicable, the Rule
434 Prospectus complies as to form in all material respects with the
requirements of Rule 434 under the Act;
(x) The documents incorporated by reference in the Prospectus
as amended and supplemented in relation to the applicable Designated
Shares (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder;
(xi) Except for such consents, approvals, authorizations,
registrations or qualifications as have been obtained under the Act
and the Exchange Act and except for consents, approvals,
authorizations, registrations or qualifications as
13
may be required under applicable state securities or real estate
syndication laws (as to which such counsel need express no opinion) in
connection with the offer and sale of the Designated Shares, no
consent, approval, authorization or order of, or filing or
registration with, the Commission or any Maryland court or
governmental agency or body is required to be obtained or made by the
Company for the issuance of the Designated Shares or the performance
as of the date of such opinion of the obligations contained in the
Designated Shares and in this Agreement and the Pricing Agreement by
the Company;
(xii) No facts have come to such counsel's attention which have
caused them to believe that (i) the Registration Statement or any
amendments thereto, as of their respective effective dates, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Prospectus as amended and
supplemented, or any further amendments or supplements thereto, as of
their respective issue dates or as of the date of such opinion,
included or includes an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, (iii) there are any legal or governmental
proceedings pending or threatened against the Company or any of its
subsidiaries that are required to be disclosed in the Registration
Statement or the Prospectus as amended and supplemented, other than
those disclosed therein, or (iv) there are any contracts or documents
of a character required to be described in the Prospectus as amended
and supplemented that are not described or referred to therein;
provided that in making the foregoing statements (which shall not
constitute an opinion), such counsel need not express any view as to
the financial statements and supporting schedules and other financial
information and data included in or omitted from the Registration
Statement or the Prospectus as amended and supplemented;
In delivering such opinion, counsel shall be entitled to rely
upon opinions of local counsel and in respect of certain matters of
fact upon certificates of officers of the Company, provided that any
such local counsel shall be reasonably acceptable to the
Representatives and the opinion of any such local counsel shall be
addressed to the Representatives. Such opinion shall state that Sidley
Xxxxxx Xxxxx & Xxxx LLP, in rendering their opinion pursuant to this
Agreement, may rely upon such opinion of Xxxxx & Xxxxxxx L.L.P. as to
all matters of Maryland law;
(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,
1997, and the Company's current and proposed organization and method of
operation including distributions (as described in the Prospectus dated
September 30,
14
1998, the Prospectus Supplement relating to the Designated Shares and
the Company's Current Report on Form 8-K filed with the Commission on
March 28, 2002 (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, 2002 and thereafter; and (2) the
discussion in (x) the Prospectus dated September 30, 1998 under the
caption "Federal Income Tax Considerations," except such counsel shall
note that the statement to the effect that the Company is 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 distribute to shareholders 90% of its taxable income (and such
counsel shall further note that such general requirement to distribute
90% of its taxable income is correctly described in the Company's Form
8-K) and (y) the Company's Form 8-K under the caption "Federal Income
Tax Consequences" which is incorporated by reference into the
Prospectus dated September 30, 1998, 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) Prior to the date of the Pricing Agreement for such
Designated Shares, Xxxxxx Xxxxxxxx LLP, the independent accountants
who have certified the financial statements of the Company
incorporated by reference in the Registration Statement, shall have
furnished to the Representatives a letter to the effect set forth in
Annex II hereto and in form and substance satisfactory to the
Representatives, and, on the date of the Pricing Agreement for such
Designated Shares and at the Time of Delivery for such Designated
Shares, the Chief Financial Officer of the Company shall have
delivered to the Representatives a letter dated the date of such
Pricing Agreement and a letter dated such Time of Delivery,
respectively, to the effect set forth in Sections 6(b), 6(c), 6(e),
6(f), and 7 of Annex II and with respect to such other matters as the
Representatives may reasonably request, 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;
15
(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 declared by
either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the
United States; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or other calamity or crisis, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated 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 as amended or
supplemented;
(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 dated such Time of
Delivery and satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of the date
of such certificate, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to the date of such
certificate, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may reasonably
request;
(k) On or prior to the date of the Pricing Agreement, the
Representatives shall have received an agreement substantially in the form
of Annex IV hereto signed by each of the persons listed in Schedule III to
such Pricing Agreement;
(l) The Designated Shares shall have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance; and
(m) In the event that the Pricing Agreement with respect to the
Designated Shares grants the Underwriters an option to purchase Option
Shares from the Company and the Underwriters exercise such option to
purchase all or any of the Option Shares, the obligations of the
Underwriters to purchase such Option Shares at the Option Closing Time
shall be subject to the further conditions that the Representatives shall
have received legal opinions of Sidley Xxxxxx Xxxxx & Xxxx llp and Xxxxx &
Xxxxxxx
16
L.L.P., dated such Option Closing Time, relating to the Option Shares to be
purchased and otherwise to the same effect as the respective opinions
referred to in Sections 7(b), (c) and (d), a letter from the Chief
Financial Officer of the Company, dated such Option Closing Time, to the
same effect as the letter required to be delivered at the Time of Delivery
pursuant to Section 7(e), and a certificate or certificates of officers of
the Company, dated such Option Closing Time, to the same effect as the
certificates required pursuant to Section 7(j), and that all of the
foregoing are satisfactory to the Representatives.
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 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
17
in connection with investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel (unless separate counsel is required due to conflict of interest)
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromises or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include 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 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
18
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.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Shares which it has agreed to purchase at the Time of Delivery or, if
applicable, at the Option Closing Time 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 or the
Option Closing Time, as the case may be, 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
19
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 Designated Shares to be purchased at
the Time of Delivery or the Option Closing Time, as the case may be, 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 at the Time of Delivery or such Option Closing Time, as the case may
be, 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 to be purchased at
the Time of Delivery or the Option Closing Time, as the case may be, 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, in
the case of a failure to purchase Designated Shares at the Time of Delivery, 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 or, in the case of a failure to purchase Designated Shares at
an Option Closing Time which is after the Time of Delivery, the several
obligations of the Underwriters to purchase and the obligation of the Company to
sell such Designated Shares at such Option Closing Time shall terminate without
liability on the part of any non-defaulting Underwriter or the Company, but in
any such case nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or trustee or controlling person of the Company, and shall
survive delivery of and payment for the 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
20
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 of 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,
overnight courier, hand delivery or facsimile transmission to the address of the
Representatives as set forth in the applicable Pricing Agreement; and if to the
Company shall be delivered or sent by mail, overnight courier, hand delivery or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall also be delivered or
sent by mail, overnight courier, hand delivery or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex or facsimile transmission constituting such Questionnaire, which address
will be supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and trustees of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the 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.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
21
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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22
If the foregoing is in accordance with your understanding, please sign and
return this Agreement to us.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxx X. Finger
----------------------------------------
Name: Xxxxx X. Finger
Title: Senior Vice President - Chief
Financial Officer and Treasurer
Accepted as of the date hereof:
FIRST UNION SECURITIES, INC.
By: /s/ J. Xxxx Xxxxxxxx
-------------------------------
Name: J. Xxxx Xxxxxxxx
Title: Managing Director
23
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, dated as of April 17, 2001, and as subsequently
amended, by and 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
., 2002
FIRST UNION SECURITIES, INC.
As representative of the several Underwriters named in Schedule I hereto
c/o First Union Securities, Inc.
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 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 June 6, 2002 (the "Underwriting
Agreement"), between the Company on the one hand and First Union Securities,
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 Pricing Agreement to the same extent as if such provisions had been
set forth in full herein; and each of the representations and warranties set
forth therein shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty which refers to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be
a representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated 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
Representative designated to act on behalf of the Representatives pursuant to
Section 12 of the Underwriting Agreement is First Union Securities, Inc., and
the Representatives designated to act 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
in Schedule II hereto.
A supplement to the Prospectus 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 of Delivery and place and at the purchase
price to the Underwriters set forth in Schedule II hereto, the number of Initial
Shares (as defined in Schedule II hereto) set forth opposite the name of such
Underwriter in Schedule I hereto.
In addition, subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company hereby
grants an option to the Underwriters to purchase, severally and not jointly, up
to the number of Option Shares (as defined in Schedule II hereto) specified in
Schedule II hereto at the place and purchase price to the Underwriters set forth
in Schedule II hereto and at the Option Closing Time specified by the
Representatives as provided below. The option hereby granted will expire at
11:59 p.m. (New York City time) on the 30th day after the date of this Pricing
Agreement and may be exercised once, in whole or in part, for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Shares upon notice by the Representatives to the
Company setting forth the number of Option Shares as to which the several
Underwriters are then exercising the option and the Option Closing Time for such
Option Shares. Any such Option Closing Time shall be determined by the
Representatives but shall not be later than seven full business days after the
exercise of such option nor in any event prior to the Time of Delivery. If the
option is exercised as to all or any portion of the Option Shares, each of the
Underwriters, acting severally and not jointly, will be obligated to purchase
that proportion of the total number of Option Shares then being purchased which
the number of Initial Shares set forth in Schedule II hereto opposite the name
of such Underwriter bears to the total number of Initial Shares (subject in each
case to such adjustments as the Representatives in their discretion shall make
to eliminate any sales or purchases of fractional shares), and the Company shall
be obligated to issue and sell such Option Shares to the several Underwriters,
in each case subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated by reference herein.
The obligations of the Underwriters under this Pricing Agreement and the
Underwriting Agreement incorporated herein are several and not joint.
This Pricing Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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I-2
If the foregoing is in accordance with your understanding, please sign and
return this Pricing Agreement to us, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this Pricing Agreement and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By: /s/ Xxxxx X. Finger
----------------------------------------------
Name: Xxxxx X. Finger
Title: Senior Vice President - Chief Financial
Officer and Treasurer
Accepted as of the date hereof:
FIRST UNION SECURITIES, INC.
By: /s/ J. Xxxx Xxxxxxxx
---------------------------------------
Name: J. Xxxx Xxxxxxxx
Title: Managing Director
I-3
SCHEDULE I
Number of
Initial Shares
Underwriter to be Purchased
----------- ---------------
First Union Securities, Inc. ................................ .,000
Total ................................................ .,000
=====
SCHEDULE II
Title of Designated Shares:
Number of Designated Shares: ________ shares. The Designated Shares
consist of an aggregate of ______
Designated Shares (the "Initial Shares")
that the Underwriters have agreed,
severally and not jointly, to purchase
and that the Company has agreed to sell
and an aggregate of up to ______
Designated Shares (the "Option Shares")
that the Underwriters have the option to
purchase, severally and not jointly,
from the Company, all subject to the
terms and conditions set forth in this
Pricing Agreement and the Underwriting
Agreement incorporated by reference
herein.
Initial Offering Price to Public Per $______ per share.
Share for Designated Shares
Purchase Price per Share for $______ per share; provided, however,
Designated Shares to be Paid by the that the purchase price per share for
Underwriters any Option Shares purchased by the
Underwriters shall be reduced by an
amount per share equal to the aggregate
amount per share of any dividends or
distributions declared, paid or payable
with respect to the Initial Shares but
not payable with respect to such Option
Shares.
Liquidation Preference Per Share for
Designated Shares, if applicable:
Dividend Payment Dates, if
applicable:
Redemption provisions, if applicable:
Sinking fund requirements, if
applicable:
Names and addresses of First Union Securities, Inc.
Representatives: 0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Address for Notices, etc.: First Union Securities, Inc.
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Other Terms:
Time of Delivery: 9:00 a.m. (New York City time)
on ___________
Place of Delivery of Designated New York, New York
Shares:
SCHEDULE III
List of Persons Subject to Lock-Up
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Finger
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
prior 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 (3) and (4) 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
Company's Direct or
Indirect Ownership
FEDERAL REALTY INVESTMENT TRUST Interest
------------------------------- --------------------------
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)
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 outstanding - 164,952 40 units (FedRP Inc.)
units have been redeemed) 40 units (FRLP Inc.)
Federal Realty Partners, Inc. 100% voting stock
Xxxxxxxx'x Plaza Limited Partnership (Down
REIT - 250,000 units outstanding) 60,000 units (FedRP Inc.)
FRLP, Inc. 100% voting stock
FR Leesburg Plaza, LLC 100%
FR Leesburg Plaza, LP (DownREIT-352,500 total
units issued - 7,816 units have been redeemed) 214,500 units (LLC)
FRIT Property Services, Inc. (f/k/a Terranomics
Retail Services, Inc. f/k/a TRS Acquisition, Inc.) 100% nonvoting stock
Ravenswood Development Services, Inc. 100% nonvoting stock
Federal Realty Management Services, Inc. 100% voting stock
FR Federal Plaza, Inc. 100% voting stock
FR Federal Plaza, LLC 100% (FedPlaza Inc.)
Street Retail, Inc. 100% voting stock
STREET RETAIL, INC. ("SRI")
---------------------------
SRI Old Town, LLC 000%
Xxxxxx Xxxxxx Xxxxxx Xxxxx I, LLC 000%
Xxxxxx Xxxxxx Xxxxxx Xxxxx II, LLC 100%
Street Retail Tempe I, LLC 85%
Street Retail West GP, Inc. ("SRWGP") 100% voting stock
Street Retail West I, L.P. 90% (10% SRI)
Street Retail West II, L.P. 90% (10% SRI)
Xxxxxx Xxxxxx Xxxx 0, X.X. 90% (10% SRI)
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
Xxxxxx Xxxxxx Xxxx 0, X.X. 90%
Xxxxxx Xxxxxx Xxxx 00, X.X. 90%
Street Retail San Antonio, LP .1% (SRI San Anton)
99.9% (SRI Texas)
SRI San Antonio, Inc. (f/k/a Dim Sum, Inc. 100% voting stock
f/k/a FR Acquisition Holding Co., Inc.)
SRI Texas, Inc. 100% voting stock
JS&DB, Inc. 100% voting stock
SRI Holding Company, Inc. 100% nonvoting stock
Xxxxxx Xxxxxx Xxxx 0, X.X. 90% (SRI Holding)
FRIT San Xxxx Town and Country Village, LLC 100%
San Xxxx Residential, Inc. 100% nonvoting stock (LLC)
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%
Blowfish SR, LLC 30%
Village Cafe Xxxxxxx Row, LLC 48.3%
Yankee Pier Xxxxxxx Row, LLC 75%
Xxxxxxx Row Association, a California non-profit mutual benefit corporation
IV-2
ANNEX IV
[Form of Lock-Up Agreement]
Federal Realty Investment Trust
Public Offering of Common Shares
., 2002
First Union Securities, Inc.
As Representative of the several Underwriters
c/o First Union Securities, Inc.
0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Pricing Agreement dated as of June 6, 2002 (the "Agreement"), between Federal
Realty Investment Trust, a Maryland real estate investment trust (the
"Company"), and you, relating to an underwritten public offering of the
Company's common shares of beneficial interest, par value $0.01 (the "Common
Shares"). [Note: If the Designated Shares are Preferred Shares, change
references from "Common Shares" to "Preferred Shares", as appropriate.]
In order to induce you to enter into the Agreement, the undersigned
will not, without the prior written consent of First Union Securities, Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction that is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the undersigned), directly or
indirectly, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period beginning on and
including the date of the Agreement through and including the date which is 60
days after the date of the Agreement; provided, however, that nothing contained
herein shall prohibit the exercise of stock options by the undersigned under the
Company's stock option plans for employees or trustees or other purchases by the
undersigned of shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock under the
Company's stock purchase plan for employees or
trustees, in each case as such plans are in effect on the date of the Agreement
(provided that the undersigned understands and agrees that any and all shares of
capital stock of the Company and securities convertible into or exercisable or
exchangeable for such capital stock that the undersigned acquires upon the
exercise of stock options or purchases under the Company's stock purchase plan
for employees or trustees shall be subject to the terms and provisions of this
Agreement and, without limitation to the foregoing, the undersigned further
understands and agrees that the undersigned will not transfer, sell or otherwise
dispose of, directly or indirectly (including, without limitation, through a
broker or dealer), any shares of capital stock of the Company or any securities
convertible into or exercisable or exchangeable for such capital stock in
payment of all or any portion of the exercise price of any such stock options
exercised by the undersigned under any such stock option plans or in payment of
all or any portion of the purchase price of any such shares of such capital
stock or other securities purchased by the undersigned under any such stock
purchase plans or otherwise effect a so-called "cashless" exercise or purchase);
and provided, further, however, that the undersigned may donate any shares of
capital stock of the Company or any securities convertible into or exercisable
or exchangeable for such capital stock to members of the undersigned's immediate
family, to a trust the beneficiaries of which are exclusively the undersigned or
members of the undersigned's immediate family or to charitable or educational
organizations without the prior written consent of First Union Securities, Inc.
if, in each case (i) such donation is a bona fide gift, (ii) the undersigned
provides written notice of such gift to First Union Securities, Inc. no later
than three business days prior to such gift, and (iii) the donee executes and
delivers to First Union Securities, Inc., prior to or contemporaneously with
such gift, a letter agreement, in form and substance reasonably satisfactory to
First Union Securities, Inc., in substantially the form of this letter
agreement. [Note: any such letter executed by a donee who receives shares from
Xx. Xxxxxx X. Xxxxxxx shall omit following paragraph] For purposes of this
paragraph, "immediate family" shall mean a spouse, lineal descendent, father,
mother, brother or sister of the transferor.
[This paragraph to be included only in the lock-up agreement dated on
or about June., 2002 signed by Xx. Xxxxxx X. Xxxxxxx.] Notwithstanding the
provisions of the immediately preceding paragraph, the undersigned may, at any
time beginning on and including the 31st day after the date of the Agreement,
acquire up to 200,000 Common Shares (the "Acquired Shares") upon the exercise of
stock options held by the undersigned under the Company's stock option plans for
employees or trustees, as such plans are in effect on the date of this
Agreement, and thereafter sell all or a portion of the Acquired Shares as part
of a so-called "cashless exercise" or otherwise; provided that anything herein
to the contrary notwithstanding, the aggregate number of Common Shares sold by
the undersigned shall in no event exceed 200,000 Common Shares.
If for any reason the Agreement shall be terminated prior to the Time
of Delivery (as defined in the Agreement), the agreement set forth above shall
likewise be terminated.
[Signature Page Immediately Follows]
IV-2
In witness whereof, the undersigned has executed and delivered this
letter agreement as of the day and year set forth above.
Yours very truly,
_____________________________________
Print Name:
IV-3
