PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made as of May ____, 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.
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(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.
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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.
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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:____________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
Telecopy No:___________________________
CAPITOL HILL ASSOCIATES, LTD. PARTNERSHIP
By:___________________________________
Its General Partner
Name:_________________________________
Title:________________________________
Address:______________________________
Telecopy No.__________________________
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