Exhibit 4.1
[Face of Security]
FEDERAL REALTY INVESTMENT TRUST
8 3/4% Note due December 1, 2009
No.______ $175,000,000
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF
$1,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
FEDERAL REALTY INVESTMENT TRUST, a Maryland real estate investment
trust (herein referred to as the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to Cede & Co. or registered assigns the
principal sum of One Hundred Seventy Five Million Dollars on December 1, 2009
(the "Stated Maturity Date") or the date fixed for earlier redemption (the
"Redemption Date," and together with the Stated Maturity Date with respect to
principal repayable on such date, the "Maturity Date"), and to pay interest
thereon from November 30, 1999 or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year (each, an "Interest Payment Date"), commencing June 1,
2000, at the rate of 8 3/4% per annum, until the principal hereof is paid or
duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Holder in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be May 15 or November 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date at
the office or agency of the Company maintained for such purpose; provided,
however, that such interest may be paid, at the Company's option, by mailing a
check to such Holder at its registered address or by transfer of funds to an
account maintained by such Holder within the United States. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may be paid to the Holder in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee referred to on the reverse hereof, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes of this series may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The principal of this Note payable on the Stated Maturity Date or the
principal of, premium, if any, and, if the Redemption Date is not an Interest
Payment Date, interest on this Note payable on the Redemption Date will be paid
against presentation of this Note at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will include interest accrued from and
including the next preceding Interest Payment Date in respect of which interest
has been paid or duly provided for (or from and including November 30, 1999, if
no interest has been paid on this Note) to but excluding such Interest Payment
Date or the Maturity Date, as the case may be. If any Interest Payment Date or
the Maturity Date falls on a day that is not a Business Day, as defined below,
principal, premium, if any and/or interest payable with respect to such Interest
Payment Date or Maturity Date, as the case may be, will be paid on the next
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or Maturity Date, as
the case may be. "Business Day" means any day, other than a Saturday or Sunday,
on which banks in the City of New York and the City of Charlotte, State of North
Carolina, are not required or authorized by law or executive order to close.
2
All payments of principal, premium, if any, and interest in respect of
this Note will be made by the Company in immediately available funds.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: November 30, 1999
FEDERAL REALTY INVESTMENT TRUST
By: ______________________________________
Steven J. Guttman
President, Chief Executive Officer and
Trustee
Attest:
_____________________________
Nancy J. Herman
Vice President-General Counsel
and Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Note of the series designated therein referred to in the within-
mentioned Indenture.
FIRST UNION NATIONAL BANK
as Trustee
By: ______________________________________
Authorized Signatory
[Reverse of Security]
FEDERAL REALTY INVESTMENT TRUST
8 3/4% Note due December 1, 2009
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 1, 1998 (herein called the
"Indenture") between the Company and First Union National Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture with respect to the series of which this Note is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Note is one of the duly authorized series of Securities
designated as "8 3/4% Notes due December 1, 2009" (collectively, the "Notes"),
and the aggregate principal amount of the Notes to be issued under such series
is limited to $175,000,000 (except for Notes authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Notes). All terms used in
this Note which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Notes are subject to redemption at any time, in whole or in part,
at the election of the Company, at a redemption price equal to the greater of
(1) 100% of the principal amount of the Notes being redeemed, and (2) as
determined by the Quotation Agent (as defined below), the sum of the present
values of the remaining scheduled payments of principal and interest thereon
(not including any portion of such payments of interest accrued as of the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined below) plus 25 basis points plus, in each case,
accrued interest thereon to the Redemption Date; provided, however, that
installments of interest on this Note whose Stated Maturity Date is on or prior
to such Redemption Date will be payable to the Holder of this Note, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
As used herein:
"Adjusted Treasury Rate" means, with respect to any Redemption Date,
the rate per year equal to the semi-annual equivalent yield to maturity of
the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (1) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than three
such Reference Treasury Dealer quotations, the average of all such
Quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (1) each of Goldman, Sachs & Co.,
J.P. Morgan Securities Inc., First Union Securities, Inc., PNC Capital
Markets, Inc. and Warburg Dillon Read LLC and their respective successors;
provided, however, that if any of the foregoing cease to be a primary U.S.
Government securities dealer (a "Primary Treasury Dealer"), the Company
will substitute therefor another Primary Treasury Dealer; and (2) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
at 5:00 p.m. New York City time, on the third Business Day preceding such
Redemption Date, together in the case of any such redemption with accrued
interest to the Redemption Date; provided, however, that installments of
interest on this Note whose Stated Maturity Date is on or prior to such
Redemption Date will be payable to the Holder of this Note, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the Redemption Date, all as
provided in the Indenture.
2
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit
the Holders of not less than a majority of the aggregate principal amount, in
certain instances, of the Outstanding Securities of any series to waive, on
behalf of all of the Holders of Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
The Company will not, and will not permit any Subsidiary to, incur any
Debt (as defined below) if, immediately after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles is greater than 65% of the sum of (without duplication) (i) the
Company's Total Assets as of the end of the calendar quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the Securities and Exchange Commission
(or, if such filing is not permitted under the Securities Exchange Act of 1934,
with the Trustee) prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets or mortgages receivable acquired, and
the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt.
3
In addition to the foregoing limitation on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt secured
by any mortgage, lien, charge, pledge, encumbrance or security interest of any
kind upon any of the property of the Company or any Subsidiary if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on property of
the Company or any Subsidiary is greater than 40% of the Company's Total Assets;
provided that for purposes of this limitation, the amount of obligations under
capital leases shown as a liability on the Company's consolidated balance sheet
shall be deducted from Debt and from Total Assets.
In addition to the foregoing limitations on the incurrence of Debt,
the Company will not and will not permit any Subsidiary to, incur any Senior
Debt if the ratio of Consolidated Income Available for Senior Debt Service (as
defined below) to the Annual Senior Debt Service Charge (as defined below) for
the four consecutive fiscal quarters most recently ended prior to the date on
which such Senior Debt is to be incurred shall have been less than 1.5 to 1, on
an unaudited pro forma basis after giving effect thereto and to the application
of the proceeds therefrom, and calculated on the assumption that (i) such Senior
Debt and any other Senior Debt incurred by the Company and its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Senior Debt, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Senior Debt by the Company and its Subsidiaries since the first day of such
four-quarter period had been incurred, repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Senior Debt
under any revolving credit facility shall be computed based upon the average
daily balance of such Senior Debt during such period); (iii) in the case of
Acquired Debt (as defined below) or Senior Debt incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such unaudited
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four- quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Senior Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such unaudited pro forma calculation.
Furthermore, the Company will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available for Debt
Service (as defined below) to the Annual Debt Service Charge (as defined below)
for
4
the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.3 to 1,
on an unaudited pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the Company
and its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility
shall be computed based upon the average daily balance of such Debt during such
period); (iii) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such unaudited
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such unaudited pro forma calculation.
As used herein,
"Acquired Debt" means Debt (or Senior Debt, as the case may be)
of a Person (i) existing at the time such Person becomes a Subsidiary or
(ii) assumed in connection with the acquisition of assets from such Person,
in each case, other than Debt (or Senior Debt, as the case may be) incurred
in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be
incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Annual Debt Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and original issue
discount of, Debt of the Company and its Subsidiaries and the amount of
dividends which are payable in respect of any Disqualified Stock (as
defined below).
"Annual Senior Debt Service Charge" as of any date means the
maximum amount which is payable in any period for interest on, and original
issue discount of, Senior Debt of the Company and its Subsidiaries.
5
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or
other ownership interests (however designated) of such Person and any
rights (other than debt securities convertible into or exchangeable for
corporate stock), warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" and
"Consolidated Income Available for Senior Debt Service" for any period
means Funds from Operations (as defined below) of the Company and its
Subsidiaries plus amounts which have been deducted for interest on Debt of
the Company and its Subsidiaries.
"Debt" means any indebtedness of the Company, or any Subsidiary,
whether or not contingent, in respect of (without duplication) (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or
obligations under any title retention agreement, (iv) the principal amount
of all obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock or (v)
any lease of property by the Company or any Subsidiary as lessee which is
reflected on the Company's consolidated balance sheet as a capitalized
lease in accordance with generally accepted accounting principles to the
extent, in the case of items of indebtedness under (i) through (iii) above,
that any such items (other than letters of credit) would appear as a
liability on the Company's consolidated balance sheet in accordance with
generally accepted accounting principles, and also includes, to the extent
not otherwise included, any obligation of the Company or any Subsidiary to
be liable for, or to pay, as obligor, guarantor or otherwise (other than
for purposes of collection in the ordinary course of business or for the
purposes of guaranteeing the payment of all amounts due and owing pursuant
to leases to which the Company is a party and has assigned its interest,
provided that such assignee of the Company is not in default of any amounts
due and owing under such leases), Debt of another Person (other than the
Company or any Subsidiary) (it being understood that Debt shall be deemed
to be incurred by the Company or any Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become liable
in respect thereof).
6
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or
by the terms of any security into which it is convertible or for which it
is exchangeable or exercisable), upon the happening of any event or
otherwise (i) matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, (ii) is convertible into or exchangeable or
exercisable for Debt or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior
to the Stated Maturity of the Notes.
"Funds from Operations" for any period means income before
depreciation and amortization and extraordinary items less gain on sale of
real estate.
"Senior Debt" means Debt other than subordinated Debt and
payments under Disqualified Stock of the Company.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with generally accepted accounting principles (but
excluding goodwill).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
generally accepted accounting principles.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
Security Register of the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder hereof or by
his attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the Holder hereof
surrendering the same.
7
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
8