PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made as of May
8, 1997, by and between FIRST WASHINGTON REALTY TRUST, INC., a
Maryland corporation (the "Company") and CAPITOL HILL ASSOCIATES,
LTD. PARTNERSHIP, a Maryland limited partnership (the
"Purchaser").
SECTION I.
Authorization and Sale of Shares
1.1 Authorization of Sale of the Shares. Subject to the
terms and conditions of this Agreement, the Company has
authorized the sale of 85,562 shares (the "Shares") of common
stock, $.01 par value per share (the "Common Stock"), to the
Purchaser.
1.2 Sale of Shares. At the Closing (as defined in Section
2), the Company will issue and sell to the Purchaser, and
Purchaser will buy from the Company, upon the terms and
conditions hereinafter set forth, the Shares at a price of
$23.375 per Share for an aggregate purchase price of two million
and eleven dollars and seventy-five cents ($2,000,011.75).
SECTION II.
Closing Date; Delivery
2.1 Closing Date. The closing (the "Closing") of the
purchase and sale of the Shares hereunder shall occur at the
offices of Xxxxxx & Xxxxxxx, Washington, D.C. as soon as
practicable after satisfaction or waiver of all conditions set
forth herein or at such other time and place as the parties
hereto may agree (the "Closing Date").
2.2 Delivery. At the Closing, the Company will deliver,
via the facilities of the Depository Trust Company, certificates
representing the Shares registered in the Purchaser's name or in
the name of the Purchaser's nominee. Such delivery shall be
against payment of the purchase price for the Shares determined
pursuant to Section 1.2 above by wire transfer to a bank account
of the Company specified to the Purchaser by the Company.
SECTION III.
Representations and Warranties of the Company
The Company represents and warrants to Purchaser as
follows:
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Maryland and has all requisite corporate power and
authority to own its properties and to carry on its business as
now conducted and as proposed to be conducted. The Company is
duly qualified to do business and is in good standing in every
jurisdiction in which the nature of the business conducted or
property owned by the Company makes such qualification necessary.
(b) The company has the requisite corporate power
and authority to enter into, deliver and perform this Agreement
and to issue the Shares in accordance with the terms hereof. All
action on the part of the Company and its officers and directors
necessary for the authorization, execution and delivery of this
Agreement and the performance of all obligations of the Company
under this Agreement required to be performed at or prior to the
Closing and for the authorization, issuance and delivery of the
Shares being sold under this Agreement, has been taken and no
further approval or authority of the shareholders or the
directors of the Company or of any governmental authority or
agency will be required for the issuance and sale of the Shares
as contemplated by this Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding Agreement on the part of the Company, enforceable
against the Company in accordance with its terms, except as may
be limited by applicable laws or equitable principles and except
as enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(c) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby or relating hereto will not
(i) result in a violation of the Company's articles of
incorporation or by-laws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
material agreement, indenture or instrument to which the Company
is a party or result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company, or by which any
property or asset of the Company is bound or affected. The
Company has obtained any and all consents, authorizations or
orders of, and made any and all filings or registrations with,
any courts or governmental agencies applicable thereto in order
for the company to execute, deliver or perform any of its
obligations under this Agreement, or to issue and sell the Shares
in accordance with the terms hereof.
(d) The Shares to be purchased from the Company
hereunder have been duly authorized for issuance and, when issued
and delivered to the Purchaser by the Company against payment
therefor in accordance with the terms of this Agreement, will be
duly and validly issued and fully paid and non-assessable. None
of the Shares were issued in violation of any preemptive rights
of any holders of any security of the Company or similar
contractual rights granted by the Company.
(e) The Common Stock is registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and is approved for listing on the New York
Stock Exchange (the "NYSE"). The Shares have been approved for
listing, subject to notice of issuance, on the NYSE. The Company
has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock, under the
Exchange Act or delisting the Common Stock from the NYSE, nor has
the Company received any written notification that the Commission
(as defined below) or the NYSE is contemplating terminating such
registration or listing.
(f) Pursuant to the Securities Act of 1933 (the
"Securities Act"), the Company has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement
on Form S-3 (File No. 333-24017), which was declared effective by
the Commission on April 17, 1997 (the "Registration Statement").
The Registration Statement conforms in all respects with the
requirements of the Securities Act, and neither the Commission
nor any state regulatory authority has issued any order
preventing or suspending the use of the Registration Statement or
the prospectus contained therein (the "Prospectus") or instituted
any proceedings for such purpose.
(g) Since December 31, 1995, the Company has filed
all reports, registrations and statements, together with any
required amendments thereto, that the Company was required to
file with the Commission, including, without limitation, Forms
10-K, Forms 10-Q, Forms 8-K and Proxy Statements (collectively,
the "SEC Filings"). As of their respective dates, the
Registration Statement, the Prospectus and the SEC Filings
contain all of the material statements which are required to be
stated therein in accordance with the Securities Act and the
Exchange Act and the regulations promulgated thereunder, and do
not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(h) The Company has, as of the Closing Date, the duly
authorized, issued and outstanding capitalization as set forth in
the Registration Statement, the Prospectus and the SEC Filings.
Except as described in the Registration Statement, the Prospectus
and the SEC Filings, there are no options, calls, warrants or
other rights to purchase or otherwise acquire any authorized but
unissued shares of common stock of the Company or any securities
convertible into common stock of the Company or any contracts or
commitments to issue or sell shares of common stock of the
Company or any such options, calls, warrants, rights or
convertible securities.
(i) The financial statements, including the notes
thereto and supporting schedules, set forth in the Registration
Statement, the Prospectus and the SEC Filings fairly present the
financial position and the results of operations of the Company
at the dates and for the periods to which they apply; and such
financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied.
(j) Purchaser has not, and will not, incur, directly
or indirectly, as a result of any action taken by Purchaser, any
liability for brokerage or finders' fees or agents' commissions
or any similar charges in connection with the purchase of the
Shares under this Agreement.
SECTION IV.
Representations and Warranties of the Purchaser
This Agreement has been duly authorized, executed and
delivered by the Purchaser and constitutes a valid and legally
binding obligation of the Purchaser, enforceable in accordance
with its terms, except as may be limited by applicable laws or
equitable principles and except as enforcement hereof may be
limited by applicable bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
SECTION V.
Conditions to Closing of Purchaser
The Purchaser's obligation to purchase the Shares at the
closing is subject to fulfillment or waiver as of the Closing
Date of the following conditions:
(a) The representations and warranties made by the
Company in Section 3 hereof shall be true and correct when made,
and shall be true and correct on the Closing Date with the same
force and effect as if they had been made on and as of said date.
(b) All covenants, agreements and conditions
contained in this Agreement to be performed by the Company on or
prior to the Closing Date shall have been performed and complied
with in all respects.
(c) The Registration Statement shall continue to be
effective, and no stop order suspending the effectiveness thereof
shall have been issued by the Commission or any state regulatory
authority, and no proceeding for that purpose shall have been
initiated or, to the knowledge of the Company, threatened, by the
Commission or any state regulatory authority.
(d) On the Closing Date, Purchaser shall have
received an opinion of Xxxxxx & Xxxxxxx, counsel to the Company,
dated the Closing Date, in form and substance satisfactory to
Xxxxxx, Flyer & Xxxxx, counsel to Purchaser, to the effect that:
The Registration Statement has become effective under
the Securities Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued under the
Securities Act and no proceedings therefor have been
initiated by the Commission.
(e) On the Closing Date, Purchaser shall have
received an opinion of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, counsel
to the Company, dated the Closing Date, in form and substance
satisfactory to Xxxxxx, Flyer & Xxxxx, counsel to Purchaser, to
the effect that:
The Shares have been duly authorized for sale and
issuance to Purchaser pursuant to this Agreement, and,
when issued and delivered by the Company pursuant to
this Agreement against full payment of the
consideration therefor as provided in the resolutions
authorizing issuance thereof by the Board of Directors
of the Company or a duly appointed committee thereof,
will be validly issued and fully paid and
nonassessable.
The execution and delivery of this Agreement have been
duly authorized by all necessary corporate action of
the Company. Assuming due authorization, execution
and delivery of this Agreement by Purchaser, this
Agreement is a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms.
(f) No statute, rule or regulation or order of any
court or administrative agency shall be in effect which prohibits
the Company from consummating the transactions contemplated
hereby.
SECTION VI.
Conditions of Closing of Company
The Company's obligation to sell and issue the Shares at
the Closing is subject to the fulfillment or waiver as of the
Closing Date of the following conditions:
(a) The representations made by Purchaser in Section
4 hereof shall be true and correct when made, and shall be true
and correct on the Closing Date.
(b) All actions, covenants, agreements and conditions
contained in this Agreement to be performed by the purchaser on
or prior to the Closing Date shall have been performed and
complied with in all respects.
(c) The Registration Statement shall continue to be
effective, and no stop order suspending the effectiveness thereof
shall have been issued by the Commission or any state regulatory
authority and no proceeding for that purpose shall have been
initiated or, to the knowledge of the Company, threatened, by the
Commission.
SECTION VII
Covenants of The Company
The company agrees to indemnify and hold Purchaser (and its
officers, directors, shareholders and/or employees) and any
affiliate of Purchaser harmless from and against any liability,
loss, cost or expense (including reasonable attorney's fees) with
respect to the breach of any representation or warranty, covenant
or undertaking provided in, or the failure to comply with any
provision of, this Agreement.
SECTION VIII.
Miscellaneous
8.1 Waivers and Amendments. The terms of this Agreement
may be waived or amended only with the written consent of the
Company and Purchaser.
8.2 Governing Law. This Agreement shall be governed in
all respects by the laws of the State of Maryland without regard
to the conflict of laws and rules thereof.
8.3 Successors and Assigns. This Agreement may not be
assigned by Purchaser without the written consent of the Company,
which consent shall not be unreasonably withheld.
8.4 Entire Agreement. This Agreement, constitutes the
full and entire understanding and agreement between the parties
with regard to the subjects herein.
8.5 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument.
8.6 Further Assurances. The parties hereto agree to
proceed diligently and use their best efforts to take or cause to
be taken all actions and to do or cause to be done all things
necessary, proper and advisable to satisfy the conditions hereto
and consummate the transactions contemplated by this Agreement.
After the Closing, each party to this Agreement shall do and
perform or cause to be done and performed all such further acts
and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as the other
party hereto may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
8.7 Expenses. The Company and Purchaser shall each bear
its own expense incurred on its behalf with respect to this
Agreement and the transactions contemplated herein, including
fees of legal counsel.
8.8 Survivability. The respective representations and
covenants of the parties hereto shall survive the Closing of the
transactions contemplated hereby.
8.9 Termination. This Agreement may be terminated by
either of the parties hereto if Closing has not occurred prior to
May 14, 1997.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
FIRST WASHINGTON REALTY TRUST, INC.
By: /s/Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
President
CAPITOL HILL ASSOCIATES, LTD.
PARTNERSHIP
Osprey Development Corp.
Its General Partner
By: /s/Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
President
