EXHIBIT 1(b)
FEDERAL REALTY INVESTMENT TRUST
Common Shares and Preferred Shares
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Underwriting Agreement
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[Name of Underwriter]
Ladies and Gentlemen:
From time to time Federal Realty Investment Trust, a business trust
organized under the laws of the District of Columbia (the "Company"), proposes
to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the
form of Annex I hereto, with such additions and deletions as the parties thereto
may determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of its
shares of beneficial interest (the "Shares") specified in Schedule II to such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Shares"). The Shares may include the Company's shares of beneficial interest,
no par or stated value (the "Common Shares"), or preferred shares (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 identified in such
Pricing Agreement.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Shares or as an obligation of
any of the Underwriters to purchase the Shares. The obligation of the Company to
issue and sell any of the Shares and the obligation of any of the Underwriters
to purchase any of the Shares shall be evidenced by the Pricing Agreement with
respect to the Designated Shares specified therein. Each Pricing Agreement shall
specify the aggregate number of such Designated Shares, the
initial public offering price of such Designated Shares, the purchase price to
the Underwriters of such Designated Shares, the names of the Underwriters of
such Designated Shares, the names of the Representatives of such Underwriters
and the number of such Designated Shares to be purchased by each Underwriter and
shall set forth the date, time and manner of delivery of such Designated Shares
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the registration statement and prospectus with respect thereto)
the terms of such Designated Shares. A Pricing Agreement shall be in the form of
an executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Registration statements on Form S-3 (File No. 33-63687 and File No.
333-_______) (the "Initial Registration Statements") in respect of the
Shares have been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statements and any post-effective
amendments thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statements, but including all documents incorporated by
reference in the prospectuses contained therein, to the Representatives for
each of the other Underwriters, 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 effective upon filing, no other
documents with respect to the Initial Registration Statements or documents
incorporated by reference therein have heretofore been filed or transmitted
for filing with the Commission (other than prospectuses filed pursuant to
Rule 424(b) under the Act, each in the form heretofore delivered to the
Representatives); and no stop orders suspending the effectiveness of the
Initial Registration Statements, any post-effective amendments thereto or
the Rule 462(b) Registration Statement, if any, have been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statements or filed with the Commission pursuant to Rule 424(a) under the
Act is hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statements and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectuses contained in the Initial
Registration Statements at the time such part of the registration
statements became effective but excluding Form T-1, each as amended at the
time such part of the Initial Registration Statements 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
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
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Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after
the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Shares in
the form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing;
and if the Company elects to rely on Rule 434 under the Act, any reference
to the Prospectus shall be deemed to include, without limitation, the form
of prospectus and the abbreviated term sheet, taken together, provided to
the Underwriters by the Company in reliance on Rule 434 under the Act (the
"Rule 434 Prospectus");
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made; and
any further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will 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
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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 as a
business trust of unlimited duration with transferable shares of beneficial
interest in good standing under the laws of the District of Columbia, 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, limited partnerships, general partnerships,
limited liability corporations, or joint ventures as the case may be, in
good standing under the laws of the jurisdictions 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 businesses as described in the
Prospectus; except as otherwise denoted in Annex III hereto, all of the
equity interests in the Entities are owned by the Company free and clear of
all pledges, liens, encumbrances, claims, security interests and defects;
all of the issued and outstanding stock of each Entity that is a
corporation has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, except as otherwise denoted in
Annex III hereto, free and clear of all pledges, liens, encumbrances,
claims, security interests and defects; no options, warrants or other
rights to convert any obligations into partnership or other ownership
interests in the Entities are outstanding; and the Company and the Entities
are duly qualified to transact business in all jurisdictions in which the
Company and the Entities are transacting business and in which the conduct
of their respective businesses requires such qualification, except where
the failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and the Entities considered as one
enterprise; one of the Company's subsidiaries, FRIT-WM, Inc., has been
organized as a Maryland corporation, and has conducted no business since
the date of its organization and has no assets as of the date hereof;
(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 respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the consolidated capital stock (except for issuances of
Common Shares pursuant to the Company's employee benefit plans and the
Company's Dividend Reinvestment and Share Purchase Plan) or any increase in
the consolidated long-term debt of the Company or any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, 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;
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(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and,
except as set forth in the Prospectus under the captions "Description of
Common Shares--Shareholder Liability" and "Description of Preferred Shares-
-Shareholder Liability", non-assessable;
(g) The Shares have been duly and validly authorized, and, when
Designated Shares are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid and,
except as set forth in the Prospectus under the captions "Description of
Common Shares--Shareholder Liability" and "Description of Preferred
Shares--Shareholder Liability", non-assessable; and the Shares conform to
the description thereof contained in the Registration Statement, and the
Designated Shares will conform to the description thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Shares;
(h) The issue and sale of the 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 except for the listing of the
Designated Shares on the New York Stock Exchange, Inc. ("NYSE") or other
stock exchanges and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by the
Underwriters;
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Entities is a party or of which any property of the Company or any of the
Entities is the subject which, if determined adversely to the Company or
any of the Entities, would individually or in the aggregate have a material
adverse effect on the consolidated financial position, shareholders' equity
or results of operations of the Company and the Entities; and, to the best
of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
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(j) The consolidated financial statements of the Company and the
Entities, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly the
financial position and the results of operations of the Company and the
Entities at the indicated dates and for the indicated periods. Such
consolidated financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied throughout
the periods involved, and all adjustments necessary for a fair presentation
of results for such periods have been made. The summary financial and
statistical data included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with the
consolidated financial statements incorporated by reference therein;
(k) The Company and the Entities have good and marketable title to, or
valid and enforceable leasehold estates in, all items of real and personal
property referred to in the Prospectus as owned or leased by the Company or
any of the Entities, in each case free and clear of all pledges, liens,
encumbrances, claims, security interests and defects, other than those
referred to in the Prospectus or which are not material in amount;
(l) The Company and the Entities have filed all Federal, State, local
and foreign income tax returns which have been required to be filed, or
appropriate extensions for such filings have been obtained as required by
law, and all Federal, State, local and foreign taxes of the Company and the
Entities have been paid except such taxes as are not yet due or are being
contested in good faith;
(m) The Company and each of the Entities hold all material licenses,
certificates and permits from governmental authorities which are necessary
to the conduct of their respective businesses; and neither the Company nor
any of the Entities has infringed any patents, patent rights, trade names,
trademarks or copyrights, which infringement is material to the business of
the Company;
(n) Xxxxx Xxxxxxxx LLP, who have certified the consolidated financial
statements filed with the Commission as part of, or incorporated by
reference in, the Registration Statement and Prospectus, are independent
public accountants as required by the Act and the rules and regulations of
the Commission promulgated thereunder;
(o) The conditions for use of registration statements on Form S-3 set
forth in the General Instructions on Form S-3 have been satisfied and the
Company is entitled to use such form for the transaction contemplated
herein;
(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
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federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials; and
(q) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company has
met the requirements for qualification as a real estate investment trust
under Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and the Company's present and contemplated
operations, assets and income continue to meet such requirements; and the
Company is neither an "investment company" nor a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
such Designated Shares, the several Underwriters propose to offer such
Designated Shares for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form and in such authorized denominations and registered in such names as the
Representatives may request upon at least twenty-four hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Shares.
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) If the Company does not elect to rely on Rule 434 under the Act,
immediately following execution and delivery of the applicable Pricing
Agreement, to prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the business
day following the execution and delivery of the Pricing Agreement relating
to the applicable Designated Shares or, if applicable, such earlier time as
may be required by 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
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Registration Statement or Prospectus as amended or supplemented after the
date of the Pricing Agreement relating to such Shares and prior to the Time
of Delivery for such Shares which shall be reasonably disapproved by the
Representatives for such Shares promptly after reasonable notice thereof;
to advise the Representatives promptly of any such amendment or supplement
after such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of such Shares, and during such same period to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Shares, of the suspension of the
qualification of such Shares for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the 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 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 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) Prior to 10:00 a.m. New York City time, on the New York business
day next succeeding the date of the applicable Pricing Agreement and from
time to time, to furnish the Underwriters with copies of the Prospectus in
New York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the 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 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;
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(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earnings statement of the Company (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including at the option of the Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Shares, as
notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Shares, not to offer, sell, contract to sell
or otherwise issue any shares of capital stock of the Company which are
substantially similar to such Designated Shares, without the prior written
consent of the Representatives;
(f) To use the net proceeds received by it from the sale of the Shares
in the manner specified in the Prospectus under the caption "Use of
Proceeds"; and
(g) To elect 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 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
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Representatives, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the Pricing
Agreement relating to such Designated Shares are, at and as of the Time of
Delivery for such Designated Shares, true and correct, to the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and to the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Xxxxx & Xxxx llp, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the Time
of Delivery for such Designated Shares, with respect to the organization of
the Company, the validity of the Designated Shares being delivered at such
Time of Delivery, the Registration Statement, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Shares, in form and substance satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly organized and is validly
existing as a business trust in good standing under the laws of the
District of Columbia, with full power and authority to own its
properties and conduct its business as described in the Prospectus; the
Entities have been duly organized and are validly existing as
corporations, limited partnerships, general partnerships, limited
liability corporations, or joint ventures as the case may be, in good
standing under the laws of the jurisdictions of their organization
(except for joint ventures, which have no good standing certificate
requirements); the Entities have power and authority to own their
properties and conduct their businesses as described in the Prospectus;
to the best of such counsel's knowledge, except as otherwise denoted in
Annex
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III hereto, all of the equity interests in the Entities are owned by the
Company and, to the best of such counsel's knowledge, are owned free and
clear of all pledges, liens, encumbrances, claims and security
interests, and to the best of such counsel's knowledge, no options,
warrants or other rights to convert any obligations into partnership or
other ownership interests in the Entities are outstanding; all of the
issued and outstanding stock of each Entity that is a corporation has
been duly authorized and validly issued, is fully paid and non-
assessable and is owned by the Company, except as otherwise denoted in
Annex III hereto, free and clear of all pledges, liens, encumbrances,
claims and security interests; the Company and the Entities are duly
qualified to transact business in all jurisdictions in which the Company
and the Entities are, to such counsel's knowledge, 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; and the conditions for use of
a registration statement on Form S-3 have been satisfied; one of the
Company's subsidiaries, FRIT-WM, Inc., has been organized as a Maryland
corporation, and has conducted no business since the date of its
organization and has no assets as of the date hereof;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company (including the Designated Shares
being delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and, except as set forth in the
Prospectus under the captions "Description of Common Shares--Shareholder
Liability" and "Description of Preferred Shares--Shareholder Liability",
non-assessable;
(iii) To the best of such counsel's knowledge and 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 such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Shares have been duly authorized, executed and delivered
by the Company;
(v) The Designated Shares conform to the description thereof
in the Prospectus as amended or supplemented;
(vi) The issue and sale of the Designated Shares being
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement and the Pricing Agreement
with respect to the Designated Shares and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of 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 known to such counsel 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
11
of the Company or any of the Entities is subject, nor will such actions
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
known to such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of the Entities or any of their
respective properties;
(vii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body is
required for the issue and sale of the Designated Shares being delivered
at such Time of Delivery or the consummation by the Company of the
transactions contemplated by this Agreement or the Pricing Agreement,
except such as have been obtained under the Act and except for the
listing of the Designated Shares on the New York Stock Exchange, Inc. or
other stock exchanges and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Designated Shares by the Underwriters;
(viii) The statements under caption "Item 3. Legal Proceedings"
in the Company's most recent Form 10-K filed with the Commission and
under the captions "Remuneration of Executive Officers and Trustees" and
"Certain Transactions" in the Company's most recent Proxy Statement
filed with the Commission, insofar as such statements constitute a
summary of documents referred to therein or matters of law, are accurate
summaries and fairly and correctly present the information called for
with respect to such documents and matters;
(ix) The investments of the Company described in the
Prospectus are permitted investments under the Declaration of Trust;
(x) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
12
(xi) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated Shares
(other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; if applicable, the Rule 434 Prospectus complies
as to form in all material respects with the requirements of Rule 434
under the Act; they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as amended
or supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as required.
In delivering such opinion, counsel shall be entitled to rely in respect
of the opinion in this clause upon opinions of local counsel and in respect of
certain matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates.
(d) In addition to the above opinion, the Representatives shall have
received the opinion or opinions of Xxxxxxx, Procter & Xxxx LLP, Special
Tax Counsel to the Company, or other 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 has qualified to
be taxed as a real estate investment trust pursuant to Sections 856-860 of
the Code, for the fiscal years ended December 31, 1987 through the date of
its most recent fiscal year ended and that the form of organization of the
Company and its current operations, assets and contemplated income are such
that the Company is
13
in a position under present law to so qualify for the current taxable year
and should so qualify for such taxable year provided that the Company
continues to meet the asset composition, source of income, shareholder
diversification, distribution and other requirements of the Code necessary
for the Company to qualify as a real estate investment trust and (2) such
Special Tax Counsel concurs with the accuracy of the legal statements set
forth in "Description of Common Shares--Restriction on Ownership" and
"Federal Income Tax Considerations" in the Prospectus.
(e) On the date of the Pricing Agreement for such Designated Shares and
at the Time of Delivery for such Designated Shares, the independent
accountants of the Company who have certified the financial statements of
the Company included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated the
effective date of the Registration Statement or the date of the most recent
report filed with the Commission containing financial statements and
incorporated by reference in the Registration Statement, if the date of
such report is later than such effective date, and a letter dated such Time
of Delivery, respectively, to the effect set forth in Annex II hereto, and
with respect to such letter dated such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(f) (i) Neither the Company nor any of the Entities shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any change in the capital stock or long-term debt of the Company or
any of the Entities or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and the Subsidiaries and the Entities, otherwise than as set forth
or contemplated in the Prospectus as amended or supplemented, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment
of the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Shares (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred shares by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred shares;
14
(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
NYSE; (ii) a suspension or material limitation in trading in the Company's
securities on the NYSE; (iii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war if the effect of any such event specified in this Clause
(iv) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(i) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of the applicable Pricing Agreement;
and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Shares a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (f) of this Section and as to such other matters as
the Representatives may reasonably request.
8. 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.
15
(a) 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 in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(b) 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.
(c) 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
16
on the other from the offering of the Designated Shares to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Shares in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to
such Shares and not joint.
(d) 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.
17
9. If any Underwriter shall default in its obligation to purchase the
Designated Shares which it has agreed to purchase under the Pricing Agreement
relating to such Designated Shares, the Representatives may in their discretion
arrange for themselves or another party or other parties to purchase such
Designated Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Shares, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Designated
Shares on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Shares, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated
Shares, the Representatives or the Company shall have the right to postpone the
time of Delivery for such Designated Shares for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Shares.
(a) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of such Designated Shares which remains unpurchased does
not exceed one-tenth of the aggregate number of the Designated Shares, then
the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Designated Shares which such Underwriter agreed
to purchase under the Pricing Agreement relating to such Designated Shares
and, in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the number of Designated Shares which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Shares of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(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 Designated Shares which remains unpurchased exceeds
one-tenth of the aggregate number of the Designated Shares, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Shares of a defaulting Underwriter or Underwriters,
then the Pricing Agreement relating to such Designated Shares shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section
18
8 hereof; but 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 Shares covered by such Pricing Agreement except
as provided in Section 6 and Section 8 hereof. If this Agreement shall be
terminated as a result of any of the conditions set forth in Section 7 (other
than Section 7(h)(i), (iii) or (iv)) not being satisfied the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements to counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Shares, but
the Company shall then be under no further liability to any Underwriter with
respect to such Designated Shares except as provided in Section 6 and Section 8
hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Shares shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and trustees of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
19
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.
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.
Federal Realty Investment Trust is a business trust organized under
District of Columbia law. Under the terms of Article VIII of the Company's
Third Amended and Restated Declaration of Trust, all persons shall look solely
to the Company's property, real, personal or otherwise, tangible or intangible,
for the payment of any claim under or for the performance of this Agreement, and
no trustee, officer, employee or agent of the Company shall be subject to any
personal liability whatsoever, in tort, contract or otherwise in connection with
the obligations of the Company hereunder.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
----------------------------------------
Title:
Accepted as of the date hereof:
[NAME OF UNDERWRITER]
By:
--------------------------------
Title:
20
ANNEX I
Pricing Agreement
-----------------
[NAME OF UNDERWRITER]
______________, 199_
Dear Sirs:
Federal Realty Investment Trust, a business trust organized under the laws
of the District of Columbia (the "Company"), proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated __________,
199_ (the "Underwriting Agreement"), between the Company on the one hand and
_________________ (the "Underwriter") on the other hand, to issue and sell to
the Underwriter the Shares specified in Schedules I and II hereto (the
"Designated Shares"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Shares which are the
subject of this Pricing Agreement. Each reference to the Representatives 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.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Shares, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at the time and place and at the purchase price to the Underwriter
set forth in Schedule II hereto, the number of Designated Shares set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding agreement
between the Underwriter and the Company.
Very truly yours,
FEDERAL REALTY INVESTMENT TRUST
By:
---------------------------------------
Title:
Accepted as of the date hereof:
[NAME OF UNDERWRITER]
By:
-------------------------------
Name:
Title:
2
SCHEDULE I
Number of
Designated Shares
Underwriter to be Purchased
--------------- -------------------
--------- ---------
-------
Total $
SCHEDULE II
Title of Designated Shares:
Common Shares of Beneficial Interest
Number of Designated Shares:
________ Shares
Overallotment option:
_________ Option Shares; exercisable for 30 days from the date hereof.
Initial Offering Price to Public:
$________ per Share
Purchase Price for Designated Shares:
___________________________
Purchase Price for Option Shares:
Purchase price per Option Share will be $________ per Option Share for
certain purchasers and $________ for other purchasers, as advised by the
Underwriter, in each case less an amount equal to any dividend payable on
the Designated Shares and not payable on the Option Shares
Specified Funds for Payment of Purchase Price:
Same-day funds
Time of Delivery:
10:00 a.m., New York City time, on _____________
Closing Location:
Xxxxx & Xxxx llp, Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Name and address of Underwriter:
__________________
Address for Notices, etc.:
[NAME AND ADDRESS OF UNDERWRITER]
Federal Realty Investment Trust, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx
Other Terms:
None
2
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriter to the effect that:
(i) 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;
(ii) 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");
(iii) 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 (vi)(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;
(iv) 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;
(v) 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;
(vi) 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;
2
(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;
(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 d(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
(vii) In addition to the audit referred to in their reports included
or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an
3
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.
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.
4
ANNEX III
Corporations (including Subsidiaries), Partnerships, Limited Liability Companies
--------------------------------------------------------------------------------
and Joint Venture of Federal Realty Investment Trust ("FRIT")
-------------------------------------------------------------
FRIT
----
Entity Type Ownership Interest
----------- ------------------
Subsidiaries:
FRIT-WM, Inc. 100%
FR Acquisitions Holding Co., Inc. 100%
Street Retail Inc. ("SRI") 100%
Subsidiary of Street Retail, Inc.
Street Retail West GP, Inc. 100%
FR Pike 7 Limited Partnership 99%
FRLP, Inc. 100%
Federal Realty Partners, Inc. 100%
Federal Realty Partners, L.P. 100%
SRI Holding Company, Inc. SRI owns 100%
of voting stock
SRI Texas, Inc. 100%
Street Retail San Antonio, L.P. 100%
TRS Development, Inc. 100%
Terranomics Retail Services, Inc. FRIT owns 100%
of voting stock
Corporations, Partnerships and Limited Liability Companies:
Andorra Associates 99% FRIT
1% XXX
Xxxxxx Enterprises II Limited Partnership 99% FRIT
1% FRA
FR Associates Limited Partnership ("FRA") 99%
FRIT Escondido Promenade, LLC 70%
FRIT San Xxxx Town and Country Village LLC 75%
Governor Plaza Associates 99% FRIT
1% XXX
Xxxxxxxx'x Plaza Limited Partnership 1%
San Xxxx Residential, Inc. FRIT San Xxxx Town
and Country Village LLC owns 100%
of non-voting stock
SRI Old Town, LLC 100%
SRI San Antonio, Inc. 100%
Shopping Center Associates Limited Partnership 99% FRIT
1% FRA
Street Retail Forest Hills I, LLC 90%
Street Retail Forest Hills II, LLC 90%
Street Retail Tempe I, LLC 90%
Street Retail West I, L.P. (indirect partnership) 90%
Street Retail West II, L.P. (indirect partnership) 90%
Street Retail West 3, L.P. (indirect partnership) 90%
Street Retail West 4, L.P. (indirect partnership) 90%
Virginia Real Estate Investors Limited Partnership 99%
Joint Venture:
Congressional Plaza Associates 55.7%
