First Industrial, L.P. $200,000,000 5¾% Senior Notes due 2016 Underwriting Agreement
EXECUTION
COPY
First
Industrial, L.P.
$200,000,000
5¾% Senior Notes due 2016
January
5, 2006
X.X.
XXXXXX SECURITIES INC.
WACHOVIA
CAPITAL MARKETS, LLC
CREDIT
SUISSE FIRST BOSTON LLC
XXXXXXX
LYNCH, PIERCE, XXXXXX
&
XXXXX INCORPORATED
As
Representatives of the several
Underwriter’s
named in Schedule I
hereto
c/o
X.X.
Xxxxxx Securities LLC
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Ladies
and Gentlemen:
First
Industrial, L.P., a Delaware limited partnership (the “Operating
Partnership”),
by
this agreement (the “Agreement”) proposes
to issue and sell to the underwriters named in Schedule I
hereto
(collectively, the “Underwriters”),
for
whom X.X. Xxxxxx Securities Inc., Wachovia Capital Markets, LLC, Credit Suisse
First Boston LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated are
acting as Representatives (the “Representatives”),
the
principal amount of its debt securities identified in Schedule I
hereto
(the “Securities”),
each
as specified in Schedule I
hereto.
The
Operating Partnership and First Industrial Realty Trust, Inc., a Maryland
corporation and the sole general partner of the Operating Partnership (the
“Company”),
have
prepared and filed with the Securities and Exchange Commission (the
“Commission”) in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
“Securities
Act”),
a
registration statement (file number 333-117842-01) on Form S-3, including
the related prospectus (the “Base Prospectus”), relating to certain securities
(the “Shelf
Securities”) to
be issued from time to time by the Company or the Operating Partnership, as
the
case may be. The Operating Partnership also has filed with, or proposes to
file
with, the Commission pursuant to Rule 424 under the Securities Act
(“Rule
424”) a
prospectus supplement specifically relating to the Securities (a “Prospectus
Supplement”).
The
registration statement as amended to the date of this Agreement and including
any registration statement filed pursuant to Rule 462(b) under the
Securities Act (a “Rule
462(b) Registration Statement”) is
hereinafter referred to as the “Registration
Statement”.
For
purposes of this Agreement, "Effective
Time"
with
respect to the Registration Statement means, if the Operating
Partnership has
advised the Underwriters that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or the
most recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c).
Any
reference in this Agreement to the Registration Statement, the Prospectus as
defined hereunder or any preliminary prospectus (a “preliminary
prospectus”),
as
the case may be, previously filed with the Commission
1
pursuant
to Rule 424 shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and
the
rules and regulations of the Commission thereunder (collectively, the
“Exchange
Act”) on
or before the date of this Agreement or the date of the Registration Statement
or the Prospectus, as the case may be; and any reference to “amend,” “amendment”
or “supplement” with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Registration Statement
or the Prospectus, as the case may be, which are deemed to be incorporated
by
reference therein. "Registration
Statement" without reference to a time means the Registration Statement as
of
its Effective Time. "Registration Statement" as of any specified time means
the
Registration Statement in the form then filed with the Commission immediately
prior to that time, including any amendment thereto or any document incorporated
by reference therein and any prospectus deemed or retroactively deemed to be
a
part thereof that has not been superseded or modified. For purposes of the
previous sentence, information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430A shall be considered to be included in the
Registration Statement as of the time specified in Rule 430A. "Statutory
Prospectus"
as of
any specified time means the prospectus included in the Registration Statement
immediately prior to that time, including any document incorporated by reference
therein and any prospectus supplement deemed or retroactively deemed to be
a
part thereof that has not been superseded or modified. For purposes of the
preceding sentence, information contained in a form of prospectus that is deemed
retroactively to be a part of the Registration Statement pursuant to
Rule 430A shall be considered to be included in the Statutory Prospectus as
of the actual time that form of prospectus is filed with the Commission pursuant
to Rule 424(b) ("Rule 424(b)") under
the Securities Act. "Prospectus"
means
the Statutory Prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173) in connection with confirmation of sales
of
the Securities that discloses the public offering price and other final terms
of
the Securities and otherwise satisfies Section 10(a) of the Securities
Act. "Issuer
Free Writing Prospectus"
means
any "issuer free writing prospectus," as defined in Rule 433, relating to
the Securities in the form filed or required to be filed with the Commission
or,
if not required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g). "General
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is intended for general distribution
to
prospective investors, as evidenced by its being specified as such in
Schedule IV
to this
Agreement. "Limited
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus. "Time
of Sale"
means
1:00 p.m. (Eastern time) on the date of this Agreement. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "described" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated
by
reference in the Registration Statement or Prospectus, as the case may
be.
The
Securities will be issued in one or more series under an indenture, dated as
of
May 13, 1997 (the “Original
Indenture”),
between the Operating Partnership and U.S. Bank National Association, as trustee
(the “Trustee”).
The
title, aggregate principal amount, rank, interest rate or formula and timing
of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms for each series of the
Securities shall be established by or pursuant to supplemental indenture no.
10
(the “Supplemental
Indenture”)
to the
Original Indenture (as so supplemented, and as the same may be amended or
further supplemented from time to time, the “Indenture”) to
be entered into between the Operating Partnership and the Trustee on or prior
to
the Closing Date (as defined in Section 3).
At
or
prior to the Time of Sale, the Operating Partnership had prepared the following
information, (the “Time
of Sale Information”):
(1)
any scheduled Issuer Free Writing Prospectuses attached as exhibits
2
to
Schedule IV
hereto,
(2) the preliminary Prospectus Supplement dated January 5, 2006 together with
the Base Prospectus and (3) any filing under the 1934 Act which is deemed
incorporated by reference in the Registration Statement or the
Prospectus.
Each
of
the Company and the Operating Partnership hereby severally agrees with the
Underwriters as follows:
1. The
Operating Partnership agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of
the
representations, warranties and agreements herein contained, but subject to
the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Operating Partnership the respective principal amount of Securities
set
forth opposite such Underwriter’s name in Schedule I
hereto
at the purchase price set forth in Schedule II
hereto.
2. The
Operating Partnership understands that the several Underwriters intend
(i) to make a public offering of their respective portions of the
Securities as soon after the execution of this Agreement as in the judgment
of
the Underwriters is advisable and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
3. Payment
for the Securities shall be made to the Operating Partnership or to its order
by
wire transfer in immediately available funds on the date and at the time and
place set forth in Schedule II
hereto
in the section entitled “Closing Date and Time of Delivery” (or at such other
time and place on the same or such other date, not later than the third Business
Day thereafter, as you and the Operating Partnership may agree in writing).
Such
payment will be made upon delivery to, or to you for the respective accounts
of,
the Underwriters of the Securities registered in such names and in such
denominations as you shall request not less than two full Business Days prior
to
the date of delivery, with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Operating Partnership. As used
herein, the term “Business
Day”
means
any day other than a day on which banks are permitted or required to be closed
in New York City or the City of Chicago. The time and date of such payment
and
delivery with respect to the Securities are referred to herein as the
“Closing
Date.”
The
Securities will be delivered through the book entry facilities of The Depository
Trust Company (“DTC”)
and
will be made available for inspection by you by 1:00 P.M. New York City time
at
least 24 hours prior to the Closing Date at such place in New York City as
you,
DTC and the Operating Partnership shall agree.
4. The
Company and the Operating Partnership, jointly and severally, represent and
warrant to each Underwriter as of the date hereof and the Closing Date
that:
(a) The
Company and the Operating Partnership meet the requirements for use of Form
S-3
and the Registration Statement has been declared effective by the
Commission.
(b) The
Registration Statement and the Prospectus, including the financial statements,
schedules and related notes included in the Prospectus and, if applicable,
any
Term Sheet to the Prospectus, as of the date hereof, as of the Time of Sale
and
at the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement or Rule
462(b) Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will comply
in
all material respects with all applicable provisions of the Securities Act
and
the Trust Indenture Act of 1939, as amended, and the rules and regulations
of
the Commission thereunder (the “TIA”) and
will contain all statements required to be stated therein in accordance with
the
Securities Act and the TIA. The Prospectus, including the financial statements,
schedules and
3
related
notes included or incorporated by reference in the Prospectus, and if
applicable, any Term Sheet to the Prospectus, as of the date hereof, as of
the
Time of Sale and at the time the Registration Statement became effective, and
at
the Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did
or
will comply in all material respects with all applicable provisions of the
Securities Act and the TIA and will contain all statements required to be stated
therein in accordance with the Securities Act and the TIA. On the date the
Registration Statement was declared effective, on the date hereof, as of the
Time of Sale, on the date of filing of any Rule 462(b) Registration
Statement and on the Closing Date, no part of the Registration Statement or
any
amendment did or will contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of the Time of Sale,
as
of its date, on the date of filing of any Rule 462(b) Registration
Statement and at the Closing Date, the Prospectus did not and will not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company and the Operating Partnership will have complied or will comply
with
the requirements of Rule 111 under the Securities Act relating to the payment
of
filing fees therefor. The foregoing representations and warranties in this
Section 4(b) do not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and Qualification
under
the TIA (the “Form
T-1”),
and
(ii) any statements or omissions made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
or
the Operating Partnership by the Underwriters specifically for inclusion in
the
Registration Statement or Prospectus or any amendment or supplement thereto.
Neither the Company nor the Operating Partnership has distributed, and prior
to
the later of the Closing Date and the completion of the distribution of the
Securities will not distribute, any offering material in connection with the
offering or sale of the Securities other than the Registration Statement, the
preliminary prospectus, the Prospectus or any other materials, if any, permitted
by the Securities Act (which were disclosed to the Underwriters and the
Underwriters’ counsel and are listed on Schedule IV
hereof
other than documents referred to in clause (c) of Section 7(f));
(c) Any
preliminary prospectus supplements, filed pursuant to Rule 424 under the
Securities Act and each 462(b) Registration Statement, if any, complied or
will comply when so filed in all material respects with all applicable
provisions of the Securities Act; did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Securities will, at
the
time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(d) The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale Information pursuant
to Item 12 of Form S-3 under the Securities Act, at the time they were, or
hereafter are, filed with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and, when read
together with other information included in, and incorporated by reference
in,
the Registration Statement, the Prospectus and the Time of Sale Information,
at
the time the Registration Statement became effective, as of the date of the
Prospectus, the Time of Sale Information and as of the Closing Date, or during
the period specified in Section 5(e) did not
4
and
will
not include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 4(d) do not apply to the Form T-1 or to any
statements or omissions made in reliance on and in conformity with information
relating to any Underwriter furnished in writing to the Company or the Operating
Partnership by the Underwriters specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto;
(e) At
the
time of filing the Registration Statement and at the date of this Agreement,
each of the Operating Partnership and the Company was not and is not an
"ineligible issuer," as defined in Rule 405, including as a result of (x)
the Operating Partnership, the Company or any other subsidiary in the preceding
three years having been convicted of a felony or misdemeanor or having been
made
the subject of a judicial or administrative decree or order as described in
Rule 405 and (y) the Operating Partnership or the Company in the
preceding three years having been the subject of a bankruptcy petition or
insolvency or similar proceeding, having had a registration statement be the
subject of a proceeding under Section 8 of the Securities Act or being the
subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Securities, all as described in
Rule 405.
(f) The
Time
of Sale Information, at the Time of Sale did not, and at the Closing Date will
not, contain any 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, not misleading. The preceding
sentence does not apply to statements in or omissions from any prospectus
included in the Registration Statement or any Issuer Free Writing Prospectus
in
reliance upon and in conformity with written information furnished to the
Operating Partnership by the Representatives specifically for use therein,
it
being understood and agreed that the only such information furnished by the
Underwriters consists of the information described in the second paragraph
of
Section 8 hereof. No statement of material fact included in the Prospectus
has
been omitted from the Time of Sale Information and no statement of material
fact
included in the Time of Sale Information that is required to be included in
the
Prospectus has been omitted therefrom.
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Securities or until
any earlier date that the Operating Partnership notified or notifies the
Underwriters as described in the next sentence, did not, does not and will
not
include any information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of
a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (i) the Operating
Partnership has promptly notified or will promptly notify the Underwriters
and
(ii) the Operating Partnership has promptly amended or will promptly amend
or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not
apply
to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the
Operating Partnership by the Underwriters specifically for use therein, it
being
understood and agreed that the only such information furnished by the
Underwriters consists of the information described as such in the second
paragraph of Section 8 hereof.
5
(h) The
Operating
Partnership (including
its agents and representatives, other than the Underwriters in their capacity
as
such) has not made, used, prepared, authorized, approved or referred to and
will
not prepare, make, use, authorize, approve or refer to any Issuer Free Writing
Prospectus other than (i) any document not constituting a prospectus pursuant
to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act
or (ii) the documents listed on Schedule IV
hereto
and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been filed in accordance with
the
Securities Act (to the extent required thereby) and did not, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the
Operating
Partnership makes
no
representation and warranty with respect to any statements or omissions made
in
each such Issuer Free Writing Prospectus in reliance upon and in conformity
with
information relating to any Underwriter furnished to the Operating
Partnership in
writing by such Underwriter through the Representative expressly for use in
any
Issuer Free Writing Prospectus.
(i) The
Company has been duly organized and is validly existing as a corporation under
and by virtue of the laws of the State of Maryland, and is in good standing
with
the State Department of Assessments and Taxation of Maryland. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the Delaware Revised Uniform
Limited Partnership Act. Each of First Industrial Financing Partnership, L.P.
(the “Financing
Partnership”),
First
Industrial Securities, L.P. (“Securities,
L.P.”),
First
Industrial Mortgage Partnership, L.P. (the “Mortgage
Partnership”),
First
Industrial Pennsylvania, L.P. (“FIP”),
First
Industrial Harrisburg, L.P. (“FIH”) and
First Industrial Indianapolis, L.P. (“FII”) (the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FIH, FII
and
FIP are referred to collectively herein as the “Partnership
Subsidiaries”) has
been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of organization.
Each of First Industrial Securities Corporation (“FISC”),
First
Industrial Indianapolis Corporation (“FIIC”),
First
Industrial Finance Corporation (“FIFC”),
First
Industrial Mortgage Corporation (“FIMC”),
First
Industrial Development Services, Inc. (“FIDSI”) and
First Industrial Pennsylvania Corporation (“FIPC”),
(FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to collectively herein
as
the “Corporate Subsidiaries”),
FR
First Cal, LLC, ("FR
First Cal"),
FR
Bucks Property Holding, L.P. ("FR
Bucks"),
FR
Lehigh Property Holding, L.P. ("FR
Lehigh"),
FR
Aberdeen, LLC ("FR
Aberdeen"),
FR
Lackawanna Property Holding, LP ("FR
Lackawanna"),
FR
Park Plaza, LLC, ("FR
Park"),
First
Industrial Acquisitions, Inc. ("FIAI"),
First
Industrial Harrisburg Corporation ("FIHC"),
and
FI Development Services Corporation ("FIDSC") (FR
First Cal, FR Bucks, FR Lehigh, FR Aberdeen, FR Lackawanna, FR Park, FIAI,
FIHC,
and FIDSC are referred to collectively herein as the "Additional
Subsidiaries,"
and
the Partnership Subsidiaries, the Corporate Subsidiaries and the Additional
Subsidiaries are referred to herein collectively as the “Subsidiaries”
or
individually as a “Subsidiary”),
has
been duly organized and is validly existing as a corporation in good standing
under and by virtue of the laws of its jurisdiction of incorporation. Other
than
the Corporate Subsidiaries, the Partnership Subsidiaries and the Additional
Subsidiaries, no entity in which the Company owns any equity securities
constitute, individually or in the aggregate, is a “significant subsidiary”
under Rule 1-02 of Regulation S-X (substituting “net income” for “income from
continuing operations”) promulgated under the Exchange Act. The Company is the
sole general partner of the Operating Partnership. FIFC is a wholly-owned
subsidiary of the Company and is the sole general partner of the Financing
Partnership. FIMC is a wholly-owned subsidiary of the Company and is the sole
general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary
of the Company and is the sole general partner of Securities, L.P. The Operating
Partnership and FISC are the only limited partners of Securities, L.P. FIPC
is a
6
wholly-owned
subsidiary of the Company and is the sole general partner of FIP. FIIC is a
wholly-owned subsidiary of the Company and is the sole general partner of FII.
FIHC is a wholly-owned subsidiary of the Company and is the sole general partner
of FIH. FIDSI is a wholly-owned subsidiary of the Operating Partnership. The
Operating Partnership is the sole limited partner of each Partnership Subsidiary
(except for Securities, L.P.). The Operating Partnership, the Company and each
of the Subsidiaries has, and at the Closing Date will have, full corporate,
partnership or limited liability company power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate
all
the properties and other assets owned, leased or operated by it and to conduct
its business in which it engages or proposes to engage as described in the
Prospectus and the transactions contemplated hereby. The Company and each of
the
Corporate Subsidiaries is, and at the Closing Date will be, duly qualified
or
registered to do business and in good standing as a foreign corporation in
all
jurisdictions in which the nature of the activities conducted by it or the
character of the properties and assets owned, leased or operated by it makes
such qualification or registration necessary, except where failure to obtain
such qualifications or registration will not have a material adverse effect
on
(i) the condition, financial or otherwise, or the earnings, assets or
business affairs or prospects of the Operating Partnership, Company and their
Subsidiaries, taken as a whole or on the 846 in service properties owned,
directly or indirectly, by the Company as of September 30, 2005 (the
“Properties”) taken
as a whole, (ii) the issuance, validity or enforceability of the Securities
or (iii) the consummation of any of the transactions contemplated by this
Agreement, the Indenture and the Securities (each a “Material
Adverse Effect”).
The
Operating Partnership and each of the Partnership Subsidiaries is, and at the
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned,
leased or operated by it makes such qualification or registration necessary,
except where failure to obtain such qualification or registration will not
have
a Material Adverse Effect. Complete and correct copies of the charter documents,
partnership agreements and other organizational documents of the Company and
its
Subsidiaries and all amendments thereto as have been requested by the
Underwriters or their counsel have been delivered to the Underwriters or their
counsel;
(j) The
Securities have been duly authorized for issuance and sale in accordance with
this Agreement by the Company, as general partner of the Operating Partnership,
and, when issued by the Operating Partnership and authenticated and delivered
by
the Trustee in accordance with the terms of the Indenture, and paid for by
the
Underwriters pursuant to this Agreement; such Securities will be valid and
legally binding unsecured obligations of the Operating Partnership entitled
to
the benefit of the Indenture and enforceable against the Operating Partnership
in accordance with their respective terms, subject to (1) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and (2) the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor may
be
brought; the Indenture has been duly qualified under the TIA and prior to the
issuance of the securities will be duly authorized, executed and delivered
by
the Operating Partnership and the Company, and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
legally binding obligation of the Operating Partnership, enforceable in
accordance with its terms subject to (1) the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (2) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought;
the
Securities conform, and the Indenture conform, to the
7
statements
relating thereto contained in the Prospectus; and the Securities are in the
form
contemplated by the Indenture;
(k) The
partnership agreement of the Operating Partnership is duly authorized, executed
and delivered by the Company, as general partner and a limited partner and
the
partnership agreement of each Partnership Subsidiary is duly authorized, validly
executed and delivered by each partner thereto and (assuming in the case of
the
Operating Partnership the due authorization, execution and delivery of the
partnership agreement by each limited partner other than the Company) each
such partnership agreement will be a valid, legally binding and enforceable
in
accordance with its terms immediately following the Closing Date subject to
(i) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered in
a
proceeding in equity or at law, and the discretion of the court before which
any
proceeding therefor may be brought. All of the issued and outstanding shares
of
capital stock of the Company and each Corporate Subsidiary, all of the
outstanding units of general, limited and/or preferred partner interests of
the
Operating Partnership and each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid and non-assessable; and (except
as
described in the Prospectus) will be owned directly or indirectly (except
in the case of the Company) by the Operating Partnership or the Company, as
the case may be, free and clear of all security interests, liens and
encumbrances (except for pledges in connection with the loan agreements of
the
Operating Partnership, the Company and the Subsidiaries), and all of the
partnership interests in each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid, and (except as described in
the
Prospectus) will be owned directly or indirectly by the Operating
Partnership or the Company, free and clear of all security interests, liens
and
encumbrances (except for pledges in connection with the loan agreements of
the
Operating Partnership, the Company and the Subsidiaries);
(l) The
financial statements, supporting schedules and related notes included in, or
incorporated by reference in, the Registration Statement, the Time of Sale
Information and the Prospectus comply in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the consolidated financial condition of the entity or entities
or
group presented or included therein, as of the respective dates thereof, and
its
consolidated results of operations and cash flows for the respective periods
covered thereby, are all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period involved,
except as otherwise disclosed in the Prospectus. The financial information
and
data included in the Registration Statement, the Time of Sale Information and
the Prospectus present fairly the information included or incorporated by
reference therein and have been prepared on a basis consistent, except as may
be
noted therein, with that of the financial statements, schedules and notes
included or incorporated by reference in the Registration Statement, the Time
of
Sale Information and the Prospectus and the books and records of the respective
entity or entities or group presented or included therein. Except as otherwise
noted in the Registration Statement, the Time of Sale Information and the
Prospectus, pro forma and/or as adjusted financial information included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the American Institute of
Certified Public Accountants (“AICPA”) guidelines
with respect to pro forma and as adjusted financial information, and includes
all adjustments necessary to present fairly the pro forma and/or as adjusted
financial condition of the entity or entities or group presented or included
therein at the respective dates indicated and the results of operations and
cash
flows for the respective periods specified. The Operating Partnership’s ratio of
earnings to fixed charges
8
included
in the Prospectus and in Exhibit 12.1 to the current report on Form 8-K filed
by
the Operating Partnership on December 9, 2005 have been calculated in compliance
with Item 503(d) of Regulation S-K of the Commission. No other financial
statements (or schedules) of the Company, the Operating Partnership and the
Partnership Subsidiaries or any predecessor of the Company and/or the Operating
Partnership and the Partnership Subsidiaries are required by the Securities
Act
or the Exchange Act to be included in the Registration Statement, the Time
of
Sale Information and the Prospectus. PricewaterhouseCoopers LLP (the
“Accountants”) who
have reported on such financial statements, schedules and related notes, are
independent registered public accountants with respect to the Operating
Partnership, the Company and the Partnership Subsidiaries with the applicable
rules and regulations adopted by the Commission and the Public Accounting
Oversight Board (United States) and as required by the Securities Act, and
there
have been no disagreements with any accountants or "reportable events" (as
defined in Item 304 of Regulation S-K promulgated by the
Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304 which have not been so disclosed;
(m) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Time of Sale Information and the Prospectus and prior to the
Closing Date, (i) there has not been and will not have been, except as set
forth in or contemplated by the Registration Statement, the Time of Sale
Information, the Prospectus and this Agreement, any change in the
capitalization, long term or short term debt or in the capital stock or equity
of each of the Operating Partnership, the Company or any of the Subsidiaries
which would be material to the Operating Partnership, the Company and the
Subsidiaries considered as one enterprise (anything which would be material
to
the Operating Partnership, the Company and the Subsidiaries, considered as
one
enterprise, being hereinafter referred to as “Material”),
(ii) except as described in the Registration Statement, the Time of Sale
Information or the Prospectus, neither the Operating Partnership, the Company
nor any of the Subsidiaries has incurred nor will any of them incur any
liabilities or obligations, direct or contingent, which would be Material,
nor
has any of them entered into nor will any of them enter into any transactions,
other than pursuant to this Agreement and the transactions referred to herein
or
as contemplated in the Registration Statement, the Time of Sale Information,
the
Prospectus and this Agreement, which would be Material, (iii) there has not
been any Material Adverse Effect, (iv) except for regular quarterly
distributions on the Company’s shares of common stock, par value $0.01 per share
(the “Common
Stock”),
and
the dividends on, and any distributions on redemption of, the shares of the
Company’s (a) Depositary Shares each representing 1/100 of a share of
85/8%
Series
C Cumulative Preferred Stock (the “Series
C Preferred Stock”),
(b) Depositary Shares each representing 1/100 of a share of 6.236% Series F
Flexible Cumulative Redeemable Preferred Stock (the “Series
F Preferred Stock”),
(c) Depositary Shares each representing 1/100 of a share of 7.236% Series G
Flexible Cumulative Redeemable Preferred Stock (the “Series
G Preferred Stock”) and
(d) Depositary Shares each representing 1/10,000
of a
share of Series I Flexible Cumulative Redeemable Preferred Stock (the
"Series
I Preferred Stock"),
the
Company has not paid or declared and will not pay or declare any dividends
or
other distributions of any kind on any class of its capital stock, and
(v) except for distributions in connection with regular quarterly
distributions on partnership units, the Operating Partnership has not paid
any
distributions of any kind on its partnership units;
(n) None
of
the Operating Partnership, the Company or any of the Subsidiaries is, or as
of
the Closing Date will be, required to be registered under the Investment Company
Act of 1940, as amended (the “1940
Act”);
(o) To
the
knowledge of the Operating Partnership or the Company, after due inquiry, except
as set forth in the Registration Statement, the Time of Sale Information and
the
9
Prospectus,
there are no actions, suits, proceedings, investigations or inquiries, pending
or, after due inquiry, threatened against or affecting the Operating
Partnership, the Company or any of the Subsidiaries or any of their respective
officers or directors in their capacity as such or of which any of their
respective properties or assets or any Property is the subject or bound, before
or by any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would reasonably be expected to have a Material
Adverse Effect;
(p) The
Operating Partnership, the Company and each of the Subsidiaries (i) has,
and at the Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on
its
business as contemplated in the Registration Statement, the Time of Sale
Information or the Prospectus and are in material compliance with such, and
(B) complied in all material respects with all laws, regulations and orders
applicable to it or its business and (ii) are not, and at the Closing Date
will not be, in breach of or default in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a “Contract
or Other Agreement”) or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in
the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any Material contract or other agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. None of the Operating Partnership, the Company or
any
of the Subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its articles of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be;
(q) No
Material consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body or any other entity
is required in connection with the offering, issuance or sale of the Securities
hereunder except such as have been obtained under the Securities Act, the
Exchange Act and the TIA and such as may be required under state securities,
Blue Sky or real estate syndication laws or the by-laws, the corporate financing
rule or the conflict of interests rule of the National Association of Securities
Dealers, Inc. (the “NASD”) in
connection with the purchase and distribution by the Underwriters of the
Securities or such as have been received prior to the date of this Agreement,
and except for the filing of this Agreement, the Supplemental Indenture and
the
form of Securities with the Commission as exhibits to a Form 8-K, which the
Operating Partnership and the Company agree to make in a timely
manner;
(r) The
Operating Partnership and the Company had or have full corporate or partnership
power, as the case may be, to enter into each of this Agreement, the Indenture
and the Securities. This Agreement, the Indenture and the Securities have been
duly and validly authorized, executed and delivered by the Operating Partnership
and the Company, constitutes a valid and binding agreement of the Operating
Partnership and the Company, and assuming due authorization, execution and
delivery by the Underwriters, is enforceable against the Operating Partnership
in accordance with the terms hereof and thereof subject to (i) the effect
of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and (ii) the effect of general principles
of equity, whether enforcement is considered in a proceeding in equity or at
10
law,
and
the discretion of the court before which any proceeding therefor may be brought.
The execution, delivery and performance of this Agreement, the Indenture and
the
Securities and the consummation of the transactions contemplated hereby, and
compliance by each of the Operating Partnership, the Company and the
Subsidiaries with its obligations hereunder to the extent each is a party
thereto, will not result in the creation or imposition of any lien, charge
or
encumbrance upon any of the assets or properties of the Operating Partnership,
the Company or any of the Subsidiaries pursuant to the terms or provisions
of,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate any
of
its obligations under, or result in the acceleration of any obligation under,
(a) the certificate of incorporation, by-laws, certificate of limited
partnership, partnership agreement or other organizational documents of the
Operating Partnership, the Company or any of the Subsidiaries, (b) any Contract
or Other Agreement to which the Operating Partnership, the Company or any of
the
Subsidiaries is a party or by which the Operating Partnership, the Company
or
any of the Subsidiaries or any of their assets or properties are bound or
affected, or violate or conflict with (c) any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency (foreign
or domestic) or body applicable to the business or properties of the
Operating Partnership, the Company or any of the Subsidiaries or to the
Properties, in each case (other than with respect to subclause (a) of this
sentence as it applies to the Operating Partnership, the Company and their
significant subsidiaries (as defined in Section 4(h)) except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not
have
a Material Adverse Effect;
(s) As
of the
Closing Date, the Operating Partnership, the Company and each of the
Subsidiaries will have good and marketable title to all properties and assets
described in the Registration Statement, the Time of Sale Information and the
Prospectus as owned by it, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are described in the Registration
Statement, the Time of Sale Information and the Prospectus, or such as secure
the loan facilities of the Operating Partnership, the Company and the
Subsidiaries, or would not result in a Material Adverse Effect;
(t) This
Agreement has been duly authorized by the Operating Partnership and, at the
Closing Date, will have been duly executed and delivered by the Operating
Partnership, and, assuming due authorization, execution and delivery of this
Agreement by the other respective parties thereto, this Agreement will, at
the
Closing Date, constitute a valid and binding obligation of the Operating
Partnership, enforceable against the Operating Partnership in accordance with
their respective terms (except to the extent that enforcement thereof may be
limited by (i) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered in
a
proceeding in equity or at law, and the discretion of the court before which
any
proceeding therefor may be brought);
(u) The
Operating Partnership is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on XXXXX.
(v) To
the
knowledge of the Operating Partnership and the Company: (i) no lessee of
any portion of the Properties is in default under any of the leases governing
such Properties and there is no event which, but for the passage of time or
the
giving of notice, or both, would constitute a default under any of such leases,
except in each case such defaults that would not
11
have
a
Material Adverse Effect; (ii) the current use and occupancy of each of the
Properties complies in all material respects with all applicable codes and
zoning laws and regulations, except for such failures to comply which would
not
individually or in the aggregate have a Material Adverse Effect; and
(iii) there is no pending or threatened condemnation, zoning change,
environmental or other proceeding or action that will in any material respect
affect the size of, use of, improvements on, construction on, or access to
the
Properties except such proceedings or actions that would not have a Material
Adverse Effect;
(w) The
Operating Partnership, the Company and the Partnership Subsidiaries have
property, title, casualty and liability insurance in favor of the Operating
Partnership, the Company or the Partnership Subsidiaries with respect to each
of
the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Operating Partnership, the Company
and the Partnership Subsidiaries except in such instances where the tenant
is
carrying such insurance or the tenant is self-insuring such risks;
(x) Except
as
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, and, except for activities, conditions, circumstances or matters
that would not have a Material Adverse Effect; (i) to the knowledge of the
Operating Partnership, the Company and the Subsidiaries, after due inquiry,
the
operations of the Operating Partnership, the Company and the Subsidiaries are
in
compliance with all Environmental Laws (as defined below) and all
requirements of applicable permits, licenses, approvals and other authorizations
issued pursuant to Environmental Laws; (ii) to the knowledge of the
Operating Partnership, the Company and the Subsidiaries, after due inquiry,
none
of the Operating Partnership, the Company or the Subsidiaries has caused or
suffered to occur any Release (as defined below) of any Hazardous Substance
(as defined below) into the Environment (as defined below) on, in,
under or from any Property, and no condition exists on, in, under or adjacent
to
any Property that could reasonably be expected to result in the incurrence
of
liabilities under, or any violations of, any Environmental Law or give rise
to
the imposition of any Lien (as defined below), under any Environmental Law;
(iii) none of the Operating Partnership, the Company or the Subsidiaries
has received any written notice of a claim under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances on,
in,
under or originating from any Property; (iv) none of the Operating
Partnership, the Company or the Subsidiaries has actual knowledge of, or
received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to undertake and/or request the investigation, remediation, clean-up or removal
of any Hazardous Substance released into the Environment on, in, under or from
any Property; and (v) no Property is included or, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection Agency
(the “EPA”),
or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that
any Property has otherwise been identified in a published writing by the EPA
as
a potential CERCLA removal, remedial or response site or, to the knowledge
of
the Company and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As
used
herein, “Hazardous
Substance”
shall
include any hazardous substance, hazardous waste, toxic substance, pollutant
or
hazardous material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing materials,
PCB’s, pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste which
is
subject to
12
regulation
under any Environmental Law (including, without limitation, materials listed
in
the United States Department of Transportation Optional Hazardous Material
Table, 49 C.F.R. § 172.101, or in the EPA’s List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302); “Environment”
shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; “Environmental
Law”
shall
mean the Comprehensive Environmental Response, Compensation and Liability Act
of
1980, as amended (42 U.S.C. § 9601 et seq.) (“CERCLA”),
the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. § 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. § 7401, et seq.), the Clean
Water Act, as amended (33 U.S.C. § 1251, et seq.), the Toxic Substances Control
Act, as amended (15 U.S.C. § 2601, et seq.), the Occupational Safety and Health
Act of 1970, as amended (29 U.S.C. § 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. § 1801, et seq.), and all other
federal, state and local laws, ordinances, regulations, rules and orders
relating to the protection of the environment or of human health from
environmental effects; “Governmental
Authority”
shall
mean any federal, state or local governmental office, agency or authority having
the duty or authority to promulgate, implement or enforce any Environmental
Law;
“Lien”
shall
mean, with respect to any Property, any mortgage, deed of trust, pledge,
security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and “Release”
shall
mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the abandonment
or discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or previously
containing and containing a residue of any Hazardous Substance;
None
of
the environmental consultants which prepared environmental and asbestos
inspection reports with respect to any of the Properties was employed for such
purpose on a contingent basis or has any substantial interest in the Operating
Partnership, the Company or any of the Subsidiaries, and none of them nor any
of
their directors, officers or employees is connected with the Operating
Partnership, the Company or any of the Subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee;
(y) The
Operating Partnership, the Company and the Subsidiaries are organized and
operate in a manner so that the Company qualifies as a real estate investment
trust (“REIT”) under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
“Code”),
and
the Company has elected to be taxed as a REIT under the Code commencing with
the
taxable year ended December 31, 1994. The Operating Partnership, the Company
and
the Subsidiaries intend to continue to be organized and operate so that the
Company shall qualify as a REIT for the foreseeable future, unless the Company’s
board of directors determines that it is no longer in the best interests of
the
Company to be so qualified;
(z) There
is
no material document or contract of a character required to be described or
referred to in the Registration Statement, the Time of Sale Information or
the
Prospectus or to be filed as an exhibit to the Registration Statement which
is
not described or filed as required therein, except for the filing of this
Agreement, the Indenture and the form of Securities with the Commission as
exhibits to a Form 8-K, which the Company agrees to make in a timely manner,
and
the descriptions thereof or references thereto are accurate in all material
respects;
(aa) None
of
the Operating Partnership, the Company or any of the Subsidiaries is involved
in
any labor dispute nor, to the knowledge of the Operating Partnership, the
Company or the Subsidiaries, after due inquiry, is any such dispute threatened
which would be Material;
13
(bb) The
Operating Partnership, the Company and the Subsidiaries own, or are licensed
or
otherwise have the full exclusive right to use, all material trademarks and
trade names which are used in or necessary for the conduct of their respective
businesses as described in the Prospectus. To the knowledge of the Operating
Partnership or the Company, no claims have been asserted by any person to the
use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Operating Partnership, the
Company and the Subsidiaries, of such trademarks and trade names does not,
to
the Company’s or the Operating Partnership’s knowledge, infringe on the rights
of any person;
(cc) Each
of
the Operating Partnership, the Company and the Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been required
to
be filed (except in any case in which the failure to so file would not result
in
a Material Adverse Effect) and has paid all taxes required to be paid and
any other assessment, fine or penalty levied against it, to the extent that
any
of the foregoing would otherwise be delinquent, except, in all cases, for any
such tax, assessment, fine or penalty that is being contested in good faith
and
except in any case in which the failure to so pay would not result in a Material
Adverse Effect;
(dd) The
Operating Partnership and each of the Partnership Subsidiaries is properly
treated as a partnership for U.S. federal income tax purposes and not as a
“publicly traded partnership”;
(ee) No
relationship, direct or indirect, exists between or among the Operating
Partnership, the Company or the Subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Operating Partnership,
the
Company or the Subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the Prospectus
which is not so described in such documents and in the Time of Sale
Information;
(ff) The
Company and the Operating Partnership have not taken and will not take, directly
or indirectly, any action designed to, or that might be reasonably expected
to,
cause or result in stabilization or manipulation of the price of the Securities,
and the Company and the Operating Partnership have not distributed and have
agreed not to distribute any prospectus or other offering material in connection
with the offering and sale of the Securities other than the Prospectus, any
preliminary prospectus filed with the Commission or other material permitted
by
the Securities Act (which were disclosed to you and your counsel);
(gg) The
Operating Partnership maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets,
financial and corporate books and records is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences;
(hh) Any
certificate or other document signed by any officer or authorized representative
of the Operating Partnership, the Company or any Subsidiary, and delivered
to
the Underwriters or to counsel for the Underwriters in connection with the
sale
of the Securities shall be deemed a representation and warranty by such entity
or person, as the case may be, to each Underwriter as to the matters covered
thereby;
14
(ii) The
Securities have an investment grade rating from one or more nationally
recognized statistical rating organizations as specified in Schedule II
hereto;
(jj) Except
for contracts, agreements or understandings entered into in connection with
the
transfer of properties or other assets to the Operating Partnership, there
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to include any Common
Stock of the Company owned or to be owned by such person in the offering
contemplated by this Agreement.
(kk) The
Securities resold pursuant to this Agreement and the Indenture shall be in
the
respective forms previously delivered to the Underwriters; and
(ll) The
Registration Statement has been declared effective by the Commission under
the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that purpose
has been instituted, or to the knowledge of the Company or the Operating
Partnership, threatened by the Commission or by the state securities authority
of any jurisdiction. No order preventing or suspending the use of the Prospectus
or any preliminary prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any
jurisdiction.
(mm) The
Operating Partnership has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Operating Partnership, including its consolidated subsidiaries, is made known
to
each of the Operating Partnership 's principal executive officer and principal
financial officer by others within those entities, particularly during the
period which the Operating Partnership’s quarterly report on Form 10-Q for the
quarter ended September 30, 2005 was prepared; (ii) have been evaluated for
effectiveness as of the date of the filing of the Prospectus Supplement with
the
Commission; and (iii) are effective in all material respects to perform the
functions for which they were established, except where a failure to be so
effective will not have a Material Adverse Effect.
(nn) Based
on
its evaluation of its internal controls over financial reporting at December
31,
2004, the Operating Partnership, the Company and their subsidiaries are not
aware of (i) any significant deficiency or material weakness in the design
or operation of internal control over financial reporting which are reasonably
likely to adversely affect the Operating Partnership’s ability to record,
process, summarize and report financial information; or (ii) any fraud,
whether or not material, that involves management or other employees who have
a
significant role in the Operating Partnership’s internal control over financial
reporting. Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no changes in internal controls over
financial reporting of the Operating Partnership, the Company or their
subsidiaries or in other factors that has materially affected, or is reasonably
likely to materially affect, the Operating Partnership, the Company or their
subsidiaries’ internal control over financial reporting.
(oo) There
is
and has been no failure on the part of the Operating Partnership or any of
the
Operating Partnership’s directors or officers, in their capacities as such, to
comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
15
(pp) The
Company is not an ineligible issuer as defined under the Securities Act, in
each
case at the times specified in the Securities Act in connection with the
offering of the Securities.
5. Each
of
the Company and the Operating Partnership severally covenants and agrees with
the Underwriters as follows:
(a) In
respect of the offering of the Securities, the Operating Partnership will
(i) prepare a Prospectus Supplement setting forth the aggregate principal
amount of Securities covered thereby and their terms not otherwise specified
in
the Base Prospectus pursuant to which the Securities are being issued, the
names
of the Underwriters participating in the offering and the aggregate principal
amount of Securities which each severally has agreed to purchase, the price
at
which the Securities are to be purchased by the Underwriters from the Operating
Partnership, the initial public offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters and the
Operating Partnership deem appropriate in connection with the offering of the
Securities, (ii) file the Statutory Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act within the applicable time period
prescribed by such rule for such filing, (iii) file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Securities Act; and
will
file promptly all reports and any definitive proxy or information statements
required to be filed by the Operating Partnership with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date
of the Prospectus and for so long as the delivery of a prospectus is required
in
connection with the offering or sale of the Securities; and (iv) furnish
copies of the Statutory Prospectus to the Underwriters and to such dealers
as
you shall specify in New York City prior to 10:00 A.M., New York City time
as
soon as practicable after the date of this Agreement in such quantities as
you
may reasonably request. The Operating Partnership has complied and will comply
with Rule 433.
(b) The
Operating Partnership will comply with the Securities Act and the Exchange
Act
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and the
Prospectus. At any time when the Prospectus is (or but for the exemption in
Rule
172 would be) required to be delivered under the Securities Act or the Exchange
Act in connection with sales of Securities, the Operating Partnership will
advise you promptly and, if requested by you, confirm such advice in writing,
of
(i) the effectiveness of any amendment to the Registration Statement
(ii) the transmittal to the Commission for filing of any Prospectus or
other supplement or amendment to the Prospectus to be filed pursuant to the
Securities Act, (iii) the receipt of any comments from the Commission
relating to the Registration Statement, any preliminary prospectus, the
Prospectus or any of the transactions contemplated by this Agreement,
(iv) any request by the Commission for post-effective amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and
(vi) the happening of any event which makes any statement of a material
fact made in the Registration Statement, the Prospectus or the Time of Sale
Information untrue or which requires the making of any additions to or changes
in the Registration Statement, the Prospectus or the Time of Sale Information
in
order to make the statements therein not misleading. The Operating Partnership
will make every reasonable effort to prevent the issuance of any stop order
and,
if at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Operating Partnership will
make
every reasonable effort to obtain the withdrawal or lifting of such order at
the
earliest possible time;
16
(c) The
Operating Partnership will furnish to you, without charge, such number of
conformed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and documents
incorporated by reference, as you may reasonably request. If applicable, the
copies of the Registration Statement and each amendment thereto furnished to
the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to the Commission’s Electronic Data Gathering
and Retrieval System (“XXXXX”), except to the extent permitted by Regulation
S-T;
(d) At
any
time when the Prospectus is (or but for the exemption in Rule 172 would be)
required to be delivered under the Securities Act or the Exchange Act in
connection with sales of Securities, not to prepare, use, authorize, approve,
refer to or file any Issuer Free Writing Prospectus, or file any amendment
to
the Registration Statement or any Rule 462(b) Registration Statement or to
make any amendment or supplement to the Prospectus or any Term Sheet, if
applicable, of which you shall not previously have been advised or to which
you
or counsel for the Underwriters shall reasonably object; and to prepare and
file
with the Commission, promptly upon your reasonable request, any amendment to
the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of counsel
for
the Underwriters, may be necessary in connection with the distribution of the
Securities by you, and to use its reasonable best efforts to cause the same
to
become promptly effective. If applicable, the Prospectus and any amendments
or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to
XXXXX, except to the extent permitted by Regulation S-T;
(e) (i)
If,
at any time when the Prospectus is (or but for the exemption in Rule 172 would
be) required to be delivered under the Securities Act or the Exchange Act in
connection with sales of Securities, any event shall occur as a result of which,
in the opinion of counsel for the Underwriters, it becomes necessary to amend
or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances existing when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to
comply with any law, the Operating Partnership will forthwith prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus
(in
form and substance reasonably satisfactory to counsel for the
Underwriters) so that the statements in the Prospectus, as so amended or
supplemented, will not contain an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances existing when it is so delivered, not misleading,
or
so that the Prospectus will comply with any law, and furnish to each Underwriter
and to such dealers as you shall specify, such number of copies thereof as
such
Underwriter or dealers may reasonably request and (ii) if at any time prior
to
the Closing Date (1) any event shall occur or condition shall exist as a
result of which the Time of Sale Information as then amended or supplemented
would include any 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, not misleading or (2) it is necessary to amend or
supplement the Time of Sale Information to comply with law, the Operating
Partnership will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission (to
the extent required) and furnish to the Underwriters and to such dealers as
the Representative may designate, such amendments or supplements to the Time
of
Sale Information as may be necessary so that the statements in the Time of
Sale
Information as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Time of Sale Information will comply
with law;
17
(f) The
Operating Partnership will use its reasonable best efforts, in cooperation
with
the Underwriters, to qualify, register or perfect exemptions for the Securities
for offer and sale by the several Underwriters to qualified institutions under
the applicable state securities, Blue Sky and real estate syndication laws
of
such jurisdictions as you may reasonably request; provided,
however,
the
Operating Partnership will not be required to qualify as a foreign limited
partnership, file a general consent to service of process in any such
jurisdiction, subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any undertaking
or make any change in its partnership agreement that the general partner of
the
Operating Partnership reasonably determines to be contrary to the best interests
of the Operating Partnership and its unitholders. In each jurisdiction in which
the Securities have been so qualified or registered, the Operating Partnership
will use all reasonable efforts to file such statements and reports as may
be
required by the laws of such jurisdiction, to continue such qualification or
registration in effect for so long a period as the Underwriters may reasonably
request for the distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such qualification or registration; provided,
however,
the
Operating Partnership will not be required to qualify as a foreign limited
partnership, file a general consent to service of process in any such
jurisdiction, subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any undertaking
or make any change in its partnership agreement that the general partner of
the
Operating Partnership reasonably determines to be contrary to the best interests
of the Operating Partnership and its unitholders;
(g) To
make
generally available to the holders of the Securities as soon as reasonably
practicable but not later than sixty days after the close of the period covered
thereby (90 days in the event the close of such period is the close of the
Operating Partnership’s fiscal year), an earning statement (in form complying
with the provisions of Rule 158 of the Securities Act) covering a period of
at least twelve months after the effective date of the Registration Statement
(but in no event commencing later than 90 days after such date) which shall
satisfy the provisions of Section 11(a) of the Securities Act, and, if
required by Rule 158 of the Securities Act, to file such statement as an exhibit
to the next periodic report required to be filed by the Operating Partnership
under the Exchange Act covering the period when such earnings statement is
released;
(h) During
the period when the Prospectus is (or but for the exemption in Rule 172 would
be) required to be delivered under the Securities Act or the Exchange Act in
connection with sales of the Securities, to file all documents required to
be
filed by it with the Commission pursuant to Section 13, 14 or 15 of the Exchange
Act within the time periods required by the Exchange Act;
(i) The
Operating Partnership will pay all costs, expenses, fees and taxes incident
to
(i) the preparation, printing, filing and distribution under the Securities
Act of the Registration Statement and any amendment thereto (including financial
statements and exhibits), the Prospectus and all amendments and supplements
to
any of them and for expenses incurred for preparing, printing and distributing
any Issuer Free Writing Prospectuses to investors or prospective investors
prior
to or during the period specified in Section 5(e), (ii) the printing and
delivery of this Underwriting Agreement, the Indenture, any Supplemental
Indentures and any Blue Sky Memorandum, (iii) the qualification or
registration of the Securities for offer and sale under certain limited
securities, Blue Sky or real estate syndication laws of certain states in
accordance with Section 5(f) hereof, (iv) the fee of and the filings
and clearance, if any, with the NASD in connection with the offering,
(v) the fees charged by nationally recognized statistical rating
organizations for the rating of the Securities, (vi) furnishing such copies
of the Registration
18
Statement,
the preliminary prospectus, the Prospectus, the Time of Sale Information and
all
amendments and supplements thereto as may be requested for use in connection
with the offering or sale of the Securities by the Underwriters or by dealers
to
whom Securities may be sold, (vii) the preparation, issuance and delivery
of certificates for the Securities to the Underwriters, (viii) the costs
and charges of any transfer agent or registrar, (ix) the costs and expenses
of the Trustee under the Indenture, (x) any expenses incurred by the
Operating Partnership in connection with a “road show” presentation to potential
investors, (xi) any transfer taxes imposed on the sale by the Operating
Partnership of the Securities to the Underwriters and (xii) the fees and
disbursements of the Operating Partnership’s counsel and
accountants;
(j) The
Operating Partnership will use its best efforts to do and perform all things
required to be done and performed under this Agreement by the Operating
Partnership prior to the Closing Date and to satisfy all conditions precedent
to
the delivery of the Securities;
(k) The
Operating Partnership will use the net proceeds received by it from the sale
of
the Securities in the manner specified in Registration Statement, the Time
of
Sale Information and the Prospectus Supplement under “Use of
Proceeds”;
(l) The
Operating Partnership will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Securities Act copies of
the Prospectus;
(m) The
Company will use its best efforts to continue to qualify as a REIT under
Sections 856 through 860 of the Code unless the Company’s board of directors
determines that it is no longer in the best interests of the Company to be
so
qualified;
(n) The
Operating Partnership will use its best efforts to take all reasonable action
necessary to enable Standard & Poor’s Corporation (“S&P”) and
Xxxxx’x Investors Service, Inc (“Moody’s”) or
any other nationally recognized rating organization to provide their respective
credit ratings of the Securities, as specified in Schedule II
hereto;
(o) The
Operating Partnership will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC; and
(p) The
Operating Partnership and the Company will execute a supplemental indenture
to
the Original Indenture designating each series of debt securities to be offered
and its related terms and provisions in accordance with the provisions of the
Indenture.
(q) The
Company will not, at any time, directly or indirectly, take any action intended,
or which might reasonably be expected to cause or result in, or which will
constitute stabilization of the price of the Securities to facilitate the sale
or resale of any Securities in violation of the Securities Act.
(r) The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
6. Each
Underwriter hereby represents and agrees that:
(a) It
has
not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus,” as defined in Rule 405 under the
Securities Act (which
19
term
includes use of any written information furnished to the Commission by the
Operating Partnership and not incorporated by reference into the Registration
Statement and any press release issued by the Operating Partnership) other
than
(i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Schedule IV
or
prepared pursuant to Section 5(d) or (e) above, or (iii) any free writing
prospectus prepared by such Underwriter and approved by the Company in advance
in writing (each such free writing prospectus referred to in clauses (i) or
(iii), an “Underwriter
Free Writing Prospectus”).
(b) It
has
not and will not distribute any Underwriter Free Writing Prospectus referred
to
in clause (a)(i) in a manner reasonably designed to lead to its broad
unrestricted dissemination.
(c) It
has
not and will not, without the prior written consent of the Operating
Partnership, use any free writing prospectus that contains the final terms
of
the Securities unless such terms have previously been included in a free writing
prospectus filed with the Commission; provided that the underwriters may use
a
term sheet substantially in the form of Schedule V hereto without the consent
of
the Company or the Operating Partnership; provided, further, that any
Underwriter using such term sheet shall notify the Company or the Operating
Partnership, and provide a copy of such term sheet, prior to, or concurrently
with, the first use of such term sheet.
(d) It
will,
pursuant to reasonable procedures developed in good faith, retain copies of
each
free writing prospectus used or referred to by it, in accordance with Rule
433
under the Securities Act.
(e) It
is not
subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering of the Securities (and will promptly notify the
Operating Partnership if any such proceeding against it is initiated during
the
such period of time that a prospectus relating to the Securities is required
by
law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Securities by any Underwriter
or
dealer.
7. The
several obligations of the Underwriters hereunder shall be subject to the
performance by the Company and the Operating Partnership of their respective
obligations hereunder and to satisfaction of each of the following
conditions:
(a) the
Registration Statement, including any Rule 462(b) Registration Statement,
has become effective under the Securities Act; the Statutory Prospectus and
each
Free Writing Prospectus shall have been filed with the Commission pursuant
to
Rule 424(b) (in the case of the Free Writing Prospectus, to the extent
required under Rule 433 of the Securities Act) within the applicable time period
prescribed for such filing by such Rule; no stop order suspending the
effectiveness of the Registration Statement or the Statutory Prospectus shall
be
in effect, and no proceedings for such purpose shall have been commenced or
shall be pending before or threatened by the Commission to the knowledge, after
due inquiry, of the Company or the Operating Partnership; no stop order
suspending the effectiveness of the Registration Statement or the Statutory
Prospectus shall be in effect and no proceedings for such purpose shall have
been commenced or shall be pending before or threatened by the state securities
authority of any jurisdiction, to the knowledge of the Company or the Operating
Partnership; and all requests for
20
additional
information on the part of the Commission shall have been complied with to
your
satisfaction;
(b) all
the
representations and warranties of the Company and the Operating Partnership
contained in this Agreement shall be true and correct on the Closing Date,
with
the same force and effect as if made on and as of the Closing Date and the
Company and the Operating Partnership shall have complied with all agreements
and all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(c) subsequent
to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been
given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or the Operating Partnership
by
any “nationally recognized statistical rating organization,” as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act;
(d) since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus there shall not have been any material change in the capital
stock, partners’ equity or long-term debt of the Company, the Operating
Partnership or any of the Subsidiaries on a consolidated basis, except as
described or contemplated in the Prospectus, or any material adverse change,
or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, prospects, management, properties, financial
position, stockholders’ equity, partners’ equity or results of operations of the
Company, the Operating Partnership and the Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities
on
the terms and in the manner contemplated in the Prospectus and/or the Indenture;
and other than as set forth in the Prospectus, no proceedings shall be pending
or, to the knowledge of the Company or the Operating Partnership, after due
inquiry, threatened against the Operating Partnership or the Company or any
Property before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding could
reasonably be expected to result in a Material Adverse Effect;
(e) you
shall
have received on and as of the Closing Date a certificate signed by the Chief
Executive Officer of the Company and the Chief Financial Officer of the Company,
in their capacities as officers of the Company, on behalf of the Company for
itself and as general partner of the Operating Partnership, satisfactory to
you
to the effect set forth in subsections (a) through (d) of this Section
7(e) and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
properties, financial position, stockholders’ equity, partners’ equity or
results of operations of the Operating Partnership, the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;;
(f) you
shall
have received on the Closing Date, an opinion or opinions (satisfactory to
you
and counsel for the Underwriters), dated the Closing Date, of Xxxxxx Xxxxxx
& Xxxxxxx llp
counsel
for the Company and the Operating Partnership, to the effect that:
(i) The
Company is duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule III
hereto.
21
(ii) The
Operating Partnership and each of the Partnership Subsidiaries has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of its state of organization. The Operating Partnership and each of
the
Partnership Subsidiaries has all requisite partnership power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case, as
described in the Prospectus, and the Operating Partnership has the partnership
power to enter into and perform its obligations under this Agreement, the
Indenture and the Securities. The Operating Partnership is duly qualified or
registered as a foreign partnership and is in good standing in each jurisdiction
listed on Schedule III
hereto.
(iii) To
the
knowledge of such counsel, none of the Operating Partnership, the Company or
the
Subsidiaries is in violation of or default under its charter, by-laws,
certificate of limited partnership or partnership agreement, as the case may
be,
and none of such entities is in default in the performance or observance of
any
obligation, agreement, covenant or condition contained in any document (as
in
effect on the date of such opinion) listed as an exhibit to the
Registration Statement, the Company’s and the Operating Partnership’s Annual
Report on Form 10-K for the year ended December 31, 2004 or the Company’s and
the Operating Partnership’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, in each case as amended, if applicable, to which such entity
is a party or by which such entity may be bound, or to which any of the property
or assets of such entity may be subject or by which they may be bound (it being
understood that (i) such counsel need express no opinion with respect to
matters relating to any contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance, management or
financing of any property or assets of such entity or any other Property and
(ii) such counsel may assume compliance with the financial covenants
contained in any such document), except in each case for violations or defaults
which in the aggregate are not reasonably expected to have a Material Adverse
Effect.
(iv) This
Agreement was duly and validly authorized, executed and delivered by each of
the
Operating Partnership and the Company.
(v) The
issuance of the Securities has been duly authorized by the Company on behalf
of
the Operating Partnership and assuming authentication by the Trustee in
accordance with the terms of the Indenture, and delivery to, and payment by,
the
Underwriters in accordance with the terms of this Agreement, such Securities
constitute valid and legally binding obligations of the Operating Partnership
entitled to the benefits provided for in the Indenture, and enforceable against
the Operating Partnership in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of
general applicability relating to or affecting creditors’ rights and to general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding at equity or law).
(vi) The
Indenture has been duly and validly authorized, executed and delivered by the
Operating Partnership and, assuming due authorization, execution and delivery
thereof by the Trustee, will constitute a valid and legally binding agreement
of
the Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’
22
rights
and to general principles of equity (regardless of whether such enforceability
is considered in a proceeding at equity or law); and the Indenture has been
duly
qualified under the TIA.
(vii) The
Registration Statement has been declared effective under the Securities Act
and
the Indenture has been qualified under the TIA, the Prospectus was filed with
the Commission pursuant to Rule 424 within the applicable time period prescribed
by Rule 424 and, to the knowledge of such counsel, no stop order suspending
the
effectiveness of the Registration Statement or the Prospectus has been issued
and no proceeding for that purpose is pending or threatened by the
Commission.
(viii) The
execution and delivery of this Agreement, the Indenture and the Securities,
the
issuance and sale of the Securities and the performance by the Operating
Partnership and the Company of their respective obligations under the
Securities, this Agreement and the Indenture, to the extent they are a party
thereto, and the consummation of the transactions herein and therein
contemplated will not require, to such counsel’s knowledge, any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such as may be required
under the Securities Act, the TIA and the state securities, Blue Sky or real
estate syndication laws in connection with the purchase and distribution of
the
Securities by the Underwriters) and did not and do not conflict with or
constitute a breach or violation of or default under: (1) any document (as
in effect as of the date of such opinion) listed as an exhibit to the
Registration Statement, each of the Company’s and the Operating Partnership’s
Annual Report on Form 10-K for the year ended December 31, 2004, each of the
Company’s and the Operating Partnership’s Quarterly Report on Form 10-Q for the
quarter ended September 30, 2005, in each case as amended, if applicable, to
which any such entity is a party or by which it or any of them or any of their
respective properties or other assets may be bound or subject and of which
such
counsel is aware (it being understood that (i) such counsel need express no
opinion with respect to matters relating to any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such entity
or
any other Property and (ii) such counsel may assume compliance with the
financial covenants contained in any such document); (2) the certificate of
limited partnership or partnership agreement, as the case may be, of the
Operating Partnership, Securities, L.P. and the Financing Partnership or the
articles of incorporation or by-laws, as the case may be, of the Company, FIFC
or FISC; or (3) any applicable law, rule or administrative regulation,
except in each case for conflicts, breaches, violations or defaults that in
the
aggregate are not reasonably expected to have a Material Adverse
Effect.
(ix) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any court or governmental authority or agency or any other entity is required
in connection with the offering, issuance or sale of the Securities hereunder,
except such as may be required under the Securities Act, the TIA, the by-laws,
the corporate financing rules and the conflict of interest rules of the NASD
or
state securities, Blue Sky or real estate syndication laws, or such as have
been
received prior to the date of such opinion.
(x) The
Registration Statement, at the time it became effective, and the Prospectus,
as
of the date of the Prospectus Supplement (in each case, other than the
23
Form
T-1
and the financial statements, including the notes and schedules thereto, and
other financial and statistical data that is found in or derived from the
internal accounting records of the Company and its Subsidiaries set forth in
or
incorporated by reference therein or the information under the caption “Notice
to Canadian Residents” in the Prospectus, as to which no opinion need be
rendered), complied as to form in all material respects with the requirements
of
the Securities Act and the Exchange Act.
(xi) Each
of
the Underwriters is receiving good, valid and marketable title to the
Securities, free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities, if such Underwriter acquires such Securities
in good faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities.
(xii) The
information in the Prospectus Supplement under “Description of Notes” and
“Certain U.S. Federal Income Tax Considerations” and in the Prospectus under
“Risk Factors,” “Description of Debt Securities” and “Certain U.S. Federal
Income Tax Considerations” (as modified by the information in the Prospectus
Supplement), to the extent that it constitutes statements of law, descriptions
of statutes, rules or regulations, or summaries of documents or legal
conclusions, has been reviewed by us and is correct in all material respects
and
presents fairly the information required to be disclosed therein.
(xiii) To
such
counsel’s knowledge, there is no document or contract of a character required to
be described or referred to in the Registration Statement and the Prospectus
by
the Securities Act other than those described or referred to therein, and the
descriptions thereof or references thereto are accurate in all material
respects; and to such counsel’s knowledge, there is no document or contract of a
character required to be filed as an exhibit to the Registration Statement
which
is not filed as required.
(xiv) The
partnership agreement of each of the Operating Partnership, Securities, L.P.
and
the Financing Partnership has been duly authorized, validly executed and
delivered by each of the Company and the Partnership Subsidiaries, to the extent
they are parties thereto, and is valid, legally binding and enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xv) The
Company and the Operating Partnership satisfied all conditions and requirements
for filing the Registration Statement on Form S-3 under the Securities
Act.
(xvi) None
of
the Company or the Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(xvii) Commencing
with the Company’s taxable year ended December 31, 1994, the Company has been
organized and operated in conformity with the requirements for qualification
and
taxation as a REIT under the Code and the Company’s current and proposed method
of operation (as represented by the Company to us in a written
certificate) will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
24
In
addition, Xxxxxx Xxxxxx & Xxxxxxx llp
shall,
in a separate letter, state that they have participated in conferences with
officers and other representatives of the Operating Partnership and the Company,
representatives of the independent registered public accounting firm for the
Operating Partnership and representatives of the Underwriters at which the
contents of the Registration Statement, the Prospectus and the Time of Sale
Information and related matters were discussed. On the basis thereof (relying
to
the extent such counsel deems appropriate upon the opinions of officers and
other representatives of the Operating Partnership and the Company as to the
materiality to the Operating Partnership of the matters discussed), but without
independent verification by such counsel of, and without passing upon or
assuming any responsibility for, the accuracy, completeness or fairness of
the
statements contained in the Registration Statement, the Prospectus or the Time
of Sale Information or any amendments or supplements thereto, no facts have
come
to the attention of such counsel that lead them to believe that (i) the
Registration Statement, including the documents incorporated therein by
reference, at the time the Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, (ii) the Prospectus, as of its date or as of the
Closing Date, contained or contains any untrue statement of a material fact
or
omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (iii) the
Time
of Sale Information, as of the Time of Sale, contained any 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, not misleading
(it
being understood that such counsel need express no comment with respect to
the
financial statements, including the notes and schedules thereto, or any other
financial or statistical data that is found in or derived from the internal
accounting records of the Operating Partnership or the Company in each case
as
set forth in or incorporated by reference into the Registration Statement,
the
Prospectus, the Time of Sale Information or the Form T-1 or the information
under the caption “Notice to Canadian Residents”).
In
giving
its opinion, such counsel may rely (i) as to all matters of fact, upon
representations, statements or certificates of public officials and statements
of officers, directors, partners, employees and representatives of and
accountants for each of the Company and its Subsidiaries, (ii) as to
matters of Maryland law, on the opinion of McGuireWoods LLP, Baltimore,
Maryland, (iii) as to matters of Illinois law, on the opinion of Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP, Chicago, Illinois, and
(iv) as to the good standing and qualification of the Operating Partnership
and the Company to do business in any state or jurisdiction, upon certificates
of appropriate government officials and letters from Corporation Service
Company, copies of which have been furnished to you.
(g) You
shall
have received on the Closing Date, an opinion (satisfactory to the Underwriters
and counsel for the Underwriters), dated the Closing Date, of McGuireWoods
LLP,
special Maryland counsel for the Company, to the effect that:
(i) Each
of
the Company and the Corporate Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation.
(ii) Each
of
the Company and the Corporate Subsidiaries has corporate power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged or proposes to engage, in each case, as
described in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this Agreement and
the
Indenture.
(iii) The
Company has been authorized, in its capacity as general partner of the Operating
Partnership, to cause the Operating Partnership to issue the
Securities.
25
(iv) Each
of
this Agreement and the Indenture was duly and validly authorized by the Company,
on behalf of itself and the Operating Partnership.
(v) The
execution and delivery of this Agreement and the Indenture, the performance
of
the obligations and the consummation of the transaction set forth herein and
therein by the Company will not require, to the knowledge of such counsel,
any
consent, approval, authorization or other order of any Maryland court,
regulatory body, administrative agency or other governmental body (except as
such may be required under the Securities Act or other securities or blue sky
or
real estate syndication laws) and did not and do not conflict with or
constitute a breach or violation of or default under: (A) the charter or
by-laws, as the case may be, of the Company; and (B) any applicable
Maryland law, rule or administrative regulation or any order or administrative
or court decree of which such counsel is aware, except in the case of clause
(B) above for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vi) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any Maryland court, governmental authority, agency or other entity is
required in connection with the offering, issuance or sale of the Securities
hereunder, except such as may be required under Maryland securities, Blue Sky
or
real estate syndication laws.
(vii) The
information in the Prospectus under “Certain Provisions of Maryland Law and The
Company’s Articles of Incorporation and Bylaws” and “Restrictions on Transfers
of Capital Stock” and in Part II of the Registration Statement under Item 15, to
the extent that it constitutes statements of law, descriptions of statutes,
rules or regulations, summaries of documents or legal conclusions, has been
reviewed by such counsel and, as to Maryland law, is correct in all material
respects and presents fairly the information required to be disclosed
therein.
(viii) The
Company and each of the Corporate Subsidiaries was authorized to enter into
the
partnership agreement of each Partnership Subsidiary for which the Operating
Partnership, the Company or such Corporate Subsidiary, as the case may be,
is
the general partner.
(h) You
shall
have received on the Closing Date, an opinion (satisfactory to the Underwriters
and counsel for the Underwriters), dated the Closing Date, of Barack Xxxxxxxxxx
Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, special Illinois counsel for the Company, to
the effect that:
(i) To
the
knowledge of such counsel, none of the Operating Partnership or the Company,
FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or default
in
connection with the performance or observance of any obligation, agreement,
covenant or condition contained in any or all of that certain Fourth Amended
and
Restated Unsecured Revolving Credit Facility, dated as of August 23, 2005,
among
the Operating Partnership, as Borrower, the Company, as Guarantor and General
Partner, JPMorgan Chase Bank, N.A., and certain other banks as lenders, JPMorgan
Securities Inc. as Lead Arranger and Sole Book Runner, Wachovia Bank, National
Association, as Syndication Agent, Commerzbank AG, PNC Bank, National
Association and Xxxxx Fargo Bank, N.A., as Documentation Agents, and AmSouth
Bank, The Bank of New York, The Bank of Nova Scotia, Bank of Montreal and
SunTrust Bank as Co-Agents (all such
26
indebtedness
collectively, the “Credit
Documents”),
except in each case for defaults that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
(ii) The
execution and delivery of this Agreement and the Indenture and the performance
of the obligations and consummation of transactions set forth herein and therein
by the Operating Partnership and the Company did not and do not conflict with,
or constitute a breach or violation of, or default under: (A) any or all of
the Credit Documents; (B) any applicable law, rule or administrative
regulation of the federal government (or agency thereof) of the United
States; or (C) any order or administrative or court decree issued to or
against, or concerning any or all of the Operating Partnership, the Company,
the
Partnership Subsidiaries and the Corporate Subsidiaries, of which, in the cases
of clauses (B) and (C) above, such counsel is aware, except in each
case for conflicts, breaches, violations or defaults that, in the aggregate,
would not have a Material Adverse Effect.
(iii) To
the
knowledge of such counsel, there are no legal or governmental proceedings
pending or threatened against the Operating Partnership, the Company, the
Partnership Subsidiaries, the Corporate Subsidiaries or the Additional
Subsidiaries that do, or are likely to, have a Material Adverse
Effect.
(iv) The
information in the 10-K under Item 7 “Management’s Discussion and Analysis of
Financial Condition and Results of Operations—Mortgage Loans Payable” (other
than information relating to a certain mortgage loan made available to First
Industrial Financing Partnership, L.P. by Nomura Asset Capital
Corporation) to the extent that it constitutes statements of law,
descriptions of statutes, summaries of principal financing terms of Credit
Documents or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and presents fairly the information disclosed
therein.
(i) On
the
date hereof, the Accountants shall have furnished to the Underwriters a letter,
dated the date of its delivery, addressed to the Underwriters and in form and
substance satisfactory to the Underwriters (and to their counsel), confirming
that they are independent registered public accountants with respect to the
Company, the Operating Partnership and the Subsidiaries as required by the
Securities Act and with respect to the financial and other statistical and
numerical information contained in the Registration Statement and the Prospectus
and containing statements and information of the type ordinarily included in
accountants” “comfort letters” as set forth in the AICPA’s Statement on Auditing
Standards 72. At the Closing Date, the Accountants shall have furnished to
the
Underwriters a letter, dated the date of its delivery, which shall confirm,
on
the basis of a review in accordance with the procedures set forth in the letter
from it, that nothing has come to its attention during the period from the
date
of the letter referred to in the prior sentence to a date (specified in the
letter) not more than five days prior to the Closing Date, which would
require any change in its letter dated the date hereof if it were required
to be
dated and delivered at the Closing Date.
(j) You
shall
have received on the Closing Date an opinion, dated as of such Closing Date,
of
Xxxxxxxx Chance US LLP ("CC"),
counsel for the Underwriters, in form and substance reasonably satisfactory
to
the Underwriters.
In
giving
its opinion, such counsel may rely (A) as to matters of Maryland law, on
the opinion of McGuireWoods LLP, Baltimore Maryland, which opinion shall be
in
form and substance reasonably satisfactory to counsel for the Underwriters
and
(B) as to the good standing
27
and
qualification of the Company and the Operating Partnership to do business in
any
sate or jurisdiction, upon certificates of appropriate governmental officials
or
opinions of counsel in such jurisdictions.
(k) At
the
Closing Date, the Securities shall have the ratings accorded by any “nationally
recognized statistical organization,” as defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act if and as specified in
Schedule II
hereto,
and the Operating Partnership shall deliver to the Underwriters a letter, dated
as of such date, from each such rating organization, or other evidence
satisfactory to the Underwriters, confirming that the Securities have such
ratings. Since the date hereof, there shall not have occurred a downgrading
in
the rating assigned to the Securities or any of the Company’s securities or the
Operating Partnership’s other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the
Securities or any of the Company’s securities or the Operating Partnership’s
other securities.
(l) If
the
Registration Statement or an offering of Securities has been filed with the
NASD
for review, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(m) The
Operating Partnership and its Subsidiaries shall not have failed at or prior
to
the Closing Date to perform or comply with any of the agreements pursuant to
Section 5 herein contained or required to be performed or complied with by
the Operating Partnership at or prior to such Closing Date
(n) At
the
Closing Date, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership and the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form
and
substance to the Underwriters and counsel for the Underwriters.
Except
to
the extent the text of such is as set forth herein, the opinions and
certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects
satisfactory to you and to CC, counsel for the Underwriters.
8. The
Company and the Operating Partnership, jointly and severally, agree to indemnify
and hold harmless the Underwriters and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including without limitation the legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, each Statutory
Prospectus, the Prospectus, any Issuer Free Writing Prospectus (as amended
or
supplemented if the Company or the Operating Partnership shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity
28
with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly
for
use therein.
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company and the Operating Partnership, and the Company’s and the Operating
Partnership’s officers and directors and each person who controls the Company or
the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act, to the same extent as
the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company and the Operating Partnership in writing by such
Underwriter through you expressly for use in the Registration Statement, each
Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus, any
amendment or supplement thereto. For purposes of this Section 8 and Sections
4(b), (f) and (g), the only written information furnished by the Underwriters
to
the Operating Partnership expressly for use in the Registration Statement and
the Prospectus Supplement is the information in the second, third, fourth,
fifth
(not including the first two sentences thereof), sixth and seventh paragraphs
after the table under the caption “Underwriting.”
If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the “Indemnified
Person”) shall
promptly notify the person against whom such indemnity may be sought (the
“Indemnifying
Person”) in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to
the
contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due
to
actual or potential differing interests between them. It is understood that
the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more
than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as
they are incurred. Any such separate firm for the Underwriters and such control
persons of the Underwriters shall be designated in writing by the
Representatives and any such separate firm for the Company, the Operating
Partnership, their directors, their officers and such control persons of the
Company and the Operating Partnership or authorized representatives shall be
designated in writing by the Company or the Operating Partnership. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees
to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. If it is ultimately determined that
an
Indemnified Person was not entitled to indemnification hereunder, such
Indemnified Person shall be responsible for repaying or reimbursing the
Indemnifying Person for any amounts so paid or incurred by such Indemnifying
Person pursuant to this paragraph. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person
is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement (i) includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act
by
or behalf of an Indemnified Person. In no
29
event
shall any Indemnifying Person have any liability or responsibility in respect
of
the settlement or compromise of, or consent to the entry of any judgment with
respect to any pending or threatened action or claim effected without its prior
written consent.
If
the
indemnification provided for in the first and second paragraphs of this Section
7 is unavailable or insufficient to hold harmless an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to therein,
then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (a) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on
the
one hand and the Underwriters on the other hand from the offering of the
Securities or (b) if the allocation provided by clause (a) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (a) above but also the
relative fault of the Company and the Operating Partnership on the one hand
and
the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the
Company and the Operating Partnership on the one hand and the Underwriters
on
the other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities (before deducting
expenses) received by the Company and the Operating Partnership and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other 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 and the Operating Partnership on the one hand or by
the
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, the Operating Partnership and the Underwriters agree that it would
not
be just and equitable if contribution pursuant to this Section 8 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 that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as
a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and
distributed to the public were offered to the public exceeds the amount of
any
damages that 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amounts of Securities set
forth opposite their names in Schedule I
hereto,
and not joint.
The
remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The
indemnity and contribution agreements contained in this Section 8 and the
representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full
force
and effect regardless of (a) any termination of this Agreement,
(b) any
30
investigation
made by or on behalf of any Underwriters or any person controlling any
Underwriters or by or on behalf of the Company, its officers or directors or
any
other person controlling the Company or the Operating Partnership and
(c) acceptance of and payment for any of the Securities.
9. Notwithstanding
anything herein contained, this Agreement may be terminated in your absolute
discretion by notice given to the Operating Partnership, if after the execution
and delivery of this Agreement and prior to the Closing Date (a) the
Company and the Operating Partnership shall have failed, refused or been unable,
at or prior to the Closing Date, to perform any agreements on its part to be
performed hereunder, (b) any other conditions to the Underwriters’
obligations hereunder are not fulfilled, (c) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASD, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of
Trade, (d) trading of any securities of or guaranteed by the Company and
the Operating Partnership shall have been suspended on any exchange or in any
over-the-counter market, (e) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; (f) there shall have occurred any major disruption of
settlements of securities, payment or clearance services in the United States;
or (g) there shall have occurred any outbreak or escalation of hostilities
or act of terrorism involving the United States or any change in financial
markets or any calamity or crisis that, in the judgment of the Representatives,
is material and adverse and which, in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the offer, sale or delivery
of
the Securities on the terms and in the manner contemplated by this Agreement,
the Time of Sale Information and the Prospectus.
10. If,
on
the Closing Date, any one or more of the Underwriters shall fail or refuse
to
purchase Securities which it or they have agreed to purchase under this
Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriters shall be obligated severally in the proportions that
the
principal amount of Securities set forth opposite their respective names in
Schedule I
hereto
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions
as
the non-defaulting Underwriters may specify, provided that,
such
Securities of the defaulting Underwriters are purchased, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
be
increased pursuant to this Section 10 by an amount in excess of one-ninth
of such principal amount of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail
or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth
of
the aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to the Underwriters and the Operating Partnership for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Operating Partnership. In any such case either you or the
Company and the Operating Partnership shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus
or in
any other documents or arrangements may be effected. Any action taken under
this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
11. If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of the Company and the Operating Partnership
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company and the Operating Partnership shall be unable
to perform their obligations under this Agreement or any condition of the
31
Underwriters”
obligations cannot be fulfilled, the Company and the Operating Partnership
agree
to reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and expenses of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering of Securities
contemplated hereunder and the Company and the Operating Partnership shall
then
be under no further liability to any Underwriters pursuant to this Agreement
except as provided in Sections 5(i) and 8 of this Agreement.
12. In
the
event of termination of this Agreement, the provisions of
Sections 5(i) and 8 remain operative and in full force and
effect.
13. This
Agreement shall inure to the benefit of and be legally binding upon the Company,
the Operating Partnership, the Underwriters, any controlling persons referred
to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
14. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriters shall be given to the
Underwriters, c/o X.X. Xxxxxx Securities LLC, 000 Xxxx Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: High Grade Syndicate Desk, facsimile
000-000-0000, with a copy to Xxxxxxxx Chance US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx, Esq. Notices to the Company
and
the Operating Partnership shall be given to First Industrial Realty Trust,
Inc.,
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxx
X.
Xxxxxxx, Esq., with a copy to Xxxxxx Xxxxxx & Xxxxxxx llp,
00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx X. Xxxxxxxxx,
Esq.
15. Absence
of Fiduciary Relationship.
Each of
the Operating Partnership
and the
Company acknowledges and agrees that:
(a) The
Underwriters have been retained solely to act as underwriters in connection
with
the sale of the Operating Partnership 's securities and that no fiduciary,
advisory or agency relationship between the Operating Partnership and the
Company, on the one hand, and the Underwriters, on the other, has been created
in respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriters have advised or is advising the
Operating Partnership or the Company on other matters;
(b) the
price
of the securities set forth in this Agreement was established by the Operating
Partnership following discussions and arms-length negotiations with the
Underwriters, and the Operating Partnership is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the
transactions contemplated by this Agreement;
(c) it
has
been advised that the Underwriters and its affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of
Operating Partnership and the Company and that the Underwriters have no
obligation to disclose such interests and transactions to Operating Partnership
or the Company by virtue of any fiduciary, advisory or agency relationship;
(d) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty in respect of the
32
transactions
contemplated by this Agreement and agrees that the Underwriters shall have
no
liability (whether direct or indirect) to Operating Partnership or the
Company in respect of such a fiduciary duty claim or to any person asserting
a
fiduciary duty claim on behalf of or in right of the Operating Partnership
or
the Company, including limited partners or stockholders, employees or creditors
of the Operating Partnership or the Company; and
(e) Any
review by the Underwriters of the Operating Partnership or the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not
be on
behalf of the Operating Partnership or the Company.
16. This
Agreement may be signed in counterparts, each of which shall be an original
and
all of which together shall constitute one and the same instrument.
17. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
[Signatures
on following page.]
33
|
Very
truly yours,
|
|
FIRST
INDUSTRIAL REALTY TRUST, INC.
|
|
By: _________________________________
|
|
Name:
|
|
Title
|
|
FIRST
INDUSTRIAL, L.P.
|
|
By: First
Industrial Realty Trust, Inc.,
|
|
as
its sole general partner
|
|
By: _________________________________
|
|
Name:
|
|
Title
|
|
Accepted:
January 5, 2006
|
|
X.X.
XXXXXX SECURITIES INC.
|
|
WACHOVIA
CAPITAL MARKETS, LLC
|
|
CREDIT
SUISSE FIRST BOSTON LLC
|
|
XXXXXXX
LYNCH, PIERCE, XXXXXX
|
|
&
XXXXX INCORPORATED
|
|
By: X.X.
XXXXXX SECURITIES INC.
|
|
on
behalf of itself and the several Underwriters
|
|
listed
in Schedule I
hereto
|
|
By: _______________________________________
|
|
Name:
|
|
Title:
|
34
SCHEDULE
I
|
Underwriters
|
Principal
Amount of Securities
to
be Purchased
|
|||
|
X.X.
Xxxxxx Securities Inc.
|
$
|
70,000,000
|
||
|
Wachovia
Capital Markets, LLC
|
$
|
70,000,000
|
||
|
Credit
Suisse First Boston LLC
|
$
|
18,000,000
|
||
|
Xxxxxxx
Lynch, Pierce, Xxxxxx
&
Xxxxx Incorporated
|
$
|
18,000,000
|
||
|
Commerzbank
Capital Markets Corp.
|
$
|
8,000,000
|
||
|
PNC
Capital Markets, LLC
|
$
|
8,000,000
|
||
|
Xxxxx
Fargo Securities, LLC
|
$
|
8,000,000
|
||
|
Total
|
$
|
200,000,000
|
||
I-1
SCHEDULE
II
|
Underwriters:
|
X.X.
Xxxxxx Securities Inc.
Wachovia
Capital Markets, LLC
Credit
Suisse First Boston LLC
Xxxxxxx
Lynch, Pierce, Xxxxxx
&
Xxxxx Incorporated
Commerzbank
Capital Markets Corp.
PNC
Capital Markets, LLC
Xxxxx
Fargo Securities, LLC
|
|
Registration
Statement No.:
|
000-000000-00
|
|
Underwriting
Agreement dated:
|
January
5, 2006
|
|
Title
of Securities:
|
5¾%
Senior Notes due 0000
|
|
Xxxxxxxxx
principal amount:
|
$200,000,000
|
|
Price
to Public:
|
99.653%
of the principal amount of the Securities, plus accrued interest,
if any,
from January 10, 2006
|
|
Purchase
Price:
|
99.003%
of the principal amount of the Securities, plus accrued interest,
if any,
from January 10, 2006
|
|
Indenture:
|
Indenture
dated as of May 13, 1997 and the Supplemental Indenture No.10 to
be dated
as of January 10, 2006, both between the Operating Partnership and
the
Trustee
|
|
Maturity:
|
January
15, 2016
|
|
Interest
Rate:
|
5¾%
|
|
Interest
Payment Dates:
|
January
15 and July 15, commencing July 15, 2006
|
|
Redemption:
|
At
the option of the Operating Partnership, in whole or in part, at
any
time
|
|
Sinking
Fund Provisions:
|
None
|
|
Other
Significant Provisions:
|
As
set forth in the Registration Statement and the Prospectus
|
II-1
|
Ratings:
|
Standard
& Poor’s: “BBB”
Xxxxx’x
Investors Service: “Baa2”
|
|
Closing
Date and Time of Delivery:
|
The
Closing will be held at 9:00 a.m.
(New York City time) on January 10, 2006, with the Securities being
delivered through the book-entry facilities of The Depository Trust
Company and made available for checking by DTC at least 24 hours
prior to
the Closing Date
|
|
Closing
Location:
|
Xxxxxxxx
Chance US LLP
00
Xxxx 00xx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
II-2
SCHEDULE
III
JURISDICTIONS
OF FOREIGN QUALIFICATION OF THE COMPANY,
THE
CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
|
ENTITY:
|
JURISDICTION
|
|
First
Industrial, L.P.
|
Arizona
California
Colorado
Connecticut
Florida
Georgia
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Missouri
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
Utah
Virginia
Wisconsin
|
|
First
Industrial Realty Trust, Inc.
|
California
Florida
Georgia
Illinois
Indiana
Michigan
Minnesota
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Utah
|
III-1
SCHEDULE
IV
Time
of Sale Information
Term
Sheet dated January 5, 2006
IV-1
Schedule
V
FIRST
INDUSTRIAL, L.P.
Pricing
Term Sheet
|
Size:
|
$200,000,000
|
|
Coupon
(Interest Rate):
|
5¾%
per annum
|
|
Interest
Payment Dates:
|
January
15 and July 15
|
|
Maturity:
|
January
15, 2016
|
|
Price
to Public:
|
99.653%
of principal amount, plus accrued interest, if any, from the date
of
original issuance
|
|
Settlement
Date:
|
T+3;
January 10, 2006
|
|
Net
Proceeds:
|
$198,006,000
(before $200,000 of offering expenses)
|
|
Redemption
Provision:
|
Make-whole
call at any time based on U.S. Treasury plus 0.25% (twenty-five
one-hundredths of one percent)
|
|
Yield
to maturity:
|
5.796%
|
|
Spread
to Benchmark Treasury:
|
143
basis points
|
|
Benchmark
Treasury:
|
U.S.
Treasury 4½% due November 2015
|
|
Benchmark
Treasury Price and Yield:
|
101-02;
4.366%
|
The
issuer has filed a registration statement (including a prospectus) with the
Securities and Exchange Commission, or SEC, for the offering to which this
communication relates. Before you invest, you should read the prospectus in
that
registration statement and other documents the issuer has filed with the SEC
for
more complete information about the issuer and this offering. You may get these
documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx.
Alternatively, the issuer or any underwriter participating in the offering
will
arrange to send you the prospectus supplement and accompanying prospectus if
you
request it by contacting First Industrial’s Investor Relations at 000-000-0000
(call collect) or xxxxxxx@xxxxxxxxxxxxxxx.xxx
or the underwriters at X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
XX 00000 (phone: (000) 000-0000 (call collect)) or Wachovia Capital Markets,
LLC
at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (phone: 0-000-000-0000)
or xxxxxxxxx.xxx@xxxxxxxx.xxx.
V-1
