5,000,000 Shares
FIRST INDUSTRIAL REALTY TRUST, INC.
Common Stock
UNDERWRITING AGREEMENT
October 21, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
Xxxxxxx Xxxxx & Co.
Prudential Securities Incorporated
Xxxxx Xxxxxx Inc.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 5,000,000 shares of common stock of the
Company, par value $.01 per share, (the "Firm Shares"), to the several
underwriters named in Schedule I hereto (the "Underwriters"). The Company also
proposes to issue and sell to the several Underwriters not more than 750,000
additional shares of its common stock, par value $.01 per share (the "Additional
Shares"), if requested by the Underwriters as provided in Section 2 hereof. The
Firm Shares and the Additional Shares are herein collectively called the
"Shares." The shares of common stock, par value $.01 per share, of the Company
to be outstanding after giving effect to the sales contemplated hereby are
hereinafter referred to as the Common Stock.
1. Registration Statement and Prospectus. The Company has 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 called the
"Act"), a registration statement on Form S-3 (Registration No. 333-13225)
including a preliminary prospectus relating to the registration of the Shares
and such other securities which may be offered from time to time by the Company
in accordance with Rule 415 under the Act. Such registration statement (as
amended, if applicable), has been declared effective by the Commission on
October 4, 1996. Such registration statement (as amended, if applicable), on the
one hand, and the prospectus constituting a part thereof and the prospectus
supplement relating to the offering of the Shares provided to the Underwriters
by the Company for use (whether or not such prospectus supplement is required to
be filed with the Commission by the Company pursuant to the Act) (the
"Prospectus
Supplement"), on the other hand, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the Act, the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively called the "Exchange Act") are referred
to herein as the "Registration Statement" and the "Prospectus," respectively;
provided, however, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of the Shares to
which it relates. Any registration statement (including any amendment or
supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) of the Act (a "Rule 462(b) Registration Statement")
shall be deemed to be part of the "Registration Statement" as defined herein and
any prospectus or any term sheet as contemplated by Rule 434 of the Act (a "Term
Sheet") (including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be deemed to
be part of the "Prospectus," as defined herein. 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; and all references in
this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even though
not specifically stated, any document filed under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell the Firm Shares and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per share of $24.16 (the "Purchase Price"), the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, the Additional Shares from the Company at
the Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional Shares
in whole or in part from time to time by giving written notice thereof to the
Company within 30 days after the date of this Agreement, provided that if such
thirtieth day is not a New York Stock Exchange trading day, the
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thirtieth day will be the next succeeding New York Stock Exchange trading day.
Such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than seven
business days after such notice has been given and (iii) no earlier than two
business days after such notice has been given; unless otherwise agreed upon by
the Underwriters and the Company. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Company
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Additional Shares to be purchased from the Company as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering (the "Offering") of their
respective portions of the Shares as soon after the execution and delivery
hereof as in your judgment is advisable and (ii) initially to offer the Shares
upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of certificates
for, and payment of the Purchase Price for the Firm Shares shall be made,
subject to Section 9, at 10:00 A.M., New York City time, on the fourth business
day (or the third business day if required under Rule 15c6-1 of the Exchange
Act) following the date hereof, or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called the "Closing
Date") at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Closing Date and the location of, delivery of and the form of payment
for the Firm Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of certificates for, and payment of the
Purchase Price for any Additional Shares to be purchased by the Underwriters
shall be made at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as you shall designate, at 10:00 A.M., New
York City time, on the date specified in the applicable exercise notice given by
you pursuant to Section 2 (an "Option Closing Date"). Any such Option Closing
Date and the location of, delivery of and the form of payment for such
Additional Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an applicable Option Closing
Date, as the case may be. Such certificates shall be made available to you for
inspection not
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later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or an applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or an applicable Option Closing Date, as the case may be,
with any transfer taxes thereon duly paid by the Company, for the respective
accounts of the several Underwriters, against payment of the Purchase Price
therefor by intra-bank transfer or wire transfer of same day funds to such
account as may be designated by the Company at least two business days prior to
the Closing Date. Any Underwriter may (but shall not be obligated to) make
payment of the Purchase Price for the Firm Shares or the Additional Shares, if
any, to be purchased by any other Underwriter whose payment has not been
received by the Closing Date or the applicable Option Closing Date, as the case
may be, but any such payment shall not relieve such Underwriter from its
obligations hereunder.
5. Agreements of the Company and the Operating Partnership. Each of
the Company and the Operating Partnership severally agrees with you as follows:
(a) The Registration Statement became effective on October 4, 1996. 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, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the 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.
(b) In respect of the offering of Shares, the Company will prepare a
Prospectus Supplement setting forth the number of Shares covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which
the Shares are being issued, the names of the Underwriters participating in
the offering and the number of Shares which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Shares are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as
the Underwriters and the Company deem appropriate in connection with the
offering of the Shares. The Company will furnish to the Underwriters named
in the Prospectus and to such dealers as you shall specify as many copies
of the Prospectus as the Underwriters shall reasonably request for the
purposes contemplated by the Act or the Exchange Act.
(c) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the Company
will advise you promptly and, if
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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 1933 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
Shares 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
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Company 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 Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time.
(d) The Company will furnish to you without charge, one signed copy of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, as you may reasonably request.
(e) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to 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 Shares by you, and
to use its best efforts to cause the same to become promptly effective.
(f) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of
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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 Company 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 to 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.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify or register the Shares for offer and sale by the
several Underwriters under the applicable state securities or Blue Sky laws
and real estate syndication laws of such jurisdictions as you may
reasonably request; provided, however, the Company will not be required to
qualify as a foreign corporation, 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 charter or by-laws
that the Board of Directors of the Company reasonably determines to be
contrary to the best interests of the Company and its stockholders. In each
jurisdiction in which the Shares have been so qualified or registered, the
Company 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 Shares 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 Company will not be required to qualify as a foreign
corporation, 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 charter or by-laws that the Board of
Directors of the Company reasonably determines to be contrary to the best
interests of the Company and its stockholders.
(h) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty (60) days after the
close of the period covered thereby (ninety (90) days in the event the
close of such
6
period is the close of the Company's fiscal year), an earnings statement
(in form complying with the provisions of Rule 158 of the Act) covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than ninety (90)
days after such date) which shall satisfy the provisions of Section 11(a)
of the Act, and, if required by Rule 158 of the Act, to file such statement
as an exhibit to the next periodic report required to be filed by the
Company under the Exchange Act covering the period when such earnings
statement is released.
(i) During the period of five years after the date of this Agreement,
the Company will furnish to you as soon as available (x) a copy of each
regular and periodic report or other publicly available information of the
Company and any of its subsidiaries mailed to the holders of the Shares or
filed with the Commission or any securities exchange and (y) such other
publicly available information concerning the Company and any of its
subsidiaries as you may reasonably request.
(j) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares,
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.
(k) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of
the Registration Statement and any amendment thereto (including financial
statements and exhibits), each preliminary prospectus, the Prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph (c), (ii) the printing and delivery of this
Agreement and the Blue Sky Memorandum, (iii) the qualification or
registration of the Shares for offer and sale under the securities or Blue
Sky laws and the real estate syndication laws of the several states in
accordance with Section 5(g) hereof, (iv) the fee of and the filings and
clearance, if any, with the National Association of Securities Dealers,
Inc. (the "NASD") in connection with the Offering, (v) the fee of and the
listing of the Shares on the New York Stock Exchange, Inc. ("NYSE"), (vi)
furnishing such copies of the Registration Statement, the Prospectus and
all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriters or
by dealers to whom Shares may be sold, (vii) the preparation, issuance and
delivery of certificates for the Shares to the Underwriters, (viii) the
costs and charges of any transfer agent or registrar, (ix) any transfer
taxes imposed on the sale by the Company of the Shares to the Underwriters
and (x) the fees and disbursements of the Company's counsel and
accountants.
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(l) The Company will use its best efforts to maintain the listing of
the Shares on the NYSE for a period of two years after the Closing Date and
thereafter unless the Company's Board of Directors determines that it is no
longer in the best interests of the Company for the Shares to continue to
be so listed.
(m) The Company will use its best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior
to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(n) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus Supplement under
"Use of Proceeds."
(o) The Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Act copies of the
Prospectus.
(p) The Company will use its best efforts to continue to qualify as a
"real estate investment trust" ("REIT") under Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code") until October
21, 1999 and thereafter unless the Company's Board of Directors determines
that it is no longer in the best interests of the Company to be so
qualified.
(q) The Company hereby agrees not to, directly or indirectly, register
the sale of, offer to sell, sell, contract to sell, grant any option to
purchase or otherwise dispose of any Shares of common stock, par value $.01
per share, of the Company ("Common Shares") or any securities convertible
into or exercisable or exchangeable for such Common Shares or in any other
manner transfer all or a portion of the economic consequences associated
with the ownership of any such Common Shares, except to the Underwriters
pursuant to this Agreement, for a period of 90 days after the date of the
Prospectus Supplement without the prior written consent of Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding the foregoing,
during such period the Company may (i) grant shares of common stock and
stock options pursuant to any employee benefit plan of the Company, (ii)
issue Common Shares upon the exercise of such options, (iii) redeem Units
for Common Shares, (iv) issue shares of, or securities convertible into or
exercisable or exchangeable for, Common Shares in connection with private
placements for the acquisition of real property or direct or indirect
interests in real property by the Company or its affiliates.
6. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating
8
Partnership, jointly and severally, represent and warrant to each Underwriter as
of the date hereof and the Closing Date that:
(a) The Company meets 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 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 Act
and will contain all statements required to be stated therein in accordance
with the Act. 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 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 Act and will
contain all statements required to be stated therein in accordance with the
Act. On the date the Registration Statement was declared effective, on the
date hereof, 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
its date, on the date of filing of any Rule 462(b) Registration Statement
and at the Closing Date, the Prospectus and the Prospectus Supplement did
not or will not contain any 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 Shares, the Company will have complied or will comply with the
requirements of Rule 111 under the Act relating to the payment of filing
fees therefor. The foregoing representations and warranties in this Section
6(b) do not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in
writing to the Company by the Underwriters specifically for inclusion in
the Registration Statement or Prospectus or any amendment or supplement
9
thereto. The Company has not distributed any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus (as hereinafter
defined), the Prospectus or any other materials, if any, permitted by the
Act.
(c) The preliminary prospectus supplement, dated October 7, 1996,
filed pursuant to Rule 424 under the Act (the "Preliminary Prospectus") 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 Act;
and did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the 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 in and
incorporated by reference in the Prospectus, at the time the Registration
Statement became effective, and as of the Closing Date, or during the
period specified in Section 5(c) did not 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 6(d) do not apply to any statements or omissions
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Underwriters
specifically for inclusion in the Registration Statement or Prospectus or
any amendment or supplement thereto.
(e) 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. Each of the Operating Partnership, 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
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services Group, L.P. ("DSG") and First
Industrial Pennsylvania, L.P. ("FIP") (the Operating Partnership, the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FII,
FIH, DSG 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
10
of its jurisdiction of organization. Each of First Industrial Securities
Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First
Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania
Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"),
First Industrial Harrisburg Corporation ("FIHC"), FI Development Services
Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"), First Industrial
Management Corporation ("FIMC") and First Industrial Third-Party Management
Corporation ("FITP," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM,
FIDSG, FRA and FIMC are referred to collectively herein as the "Corporate
Subsidiaries," and the Partnership Subsidiaries and the Corporate
Subsidiaries are referred to herein collectively as the "Subsidiaries"),
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
organization. Other than the Corporate Subsidiaries and the Partnership
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a "significant subsidiary"
under Rule 1-02 of Regulation S-X 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. FIM 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. DSG is a wholly-owned subsidiary of the
Company. FIPC is a 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 FII. FIDSG is a
wholly-owned subsidiary of the Company and is the sole general partner of
DSG. The Company and each of the Subsidiaries has, and at the Closing Date
and, if later, an Option Closing Date, will have, full corporate or
partnership 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 Registration
Statement or the Prospectus and the transactions contemplated hereby and
thereby. The Company and each of the Corporate Subsidiaries is, and at the
Closing Date or, if later, an Option 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 the condition, financial or otherwise, or the earnings,
assets or business affairs of the
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Company and its Subsidiaries, taken as whole or on the Properties taken as
a whole (a "Material Adverse Effect"), which jurisdictions of foreign
qualification or registration are attached on Schedule II hereto. Each of
the Partnership Subsidiaries is, and at the Closing Date or, if later, an
Option 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 qualifications
or registration will not have a Material Adverse Effect, which
jurisdictions of foreign qualification or registration are attached on
Schedule II hereto. Complete and correct copies of the articles of
incorporation and of the by-laws of the Company and the charter documents,
partnership agreements and other organizational documents of the
Subsidiaries and all amendments thereto as have been requested by the
Underwriters or their counsel have been delivered to the Underwriters or
their counsel.
(f) The Company's authorized capitalization consists of 10,000,000
shares of preferred stock, par value $.01 per share, 100,000,000 shares of
common stock, par value $.01 per share, and 65,000,000 shares of excess
stock, par value $.01 per share. The Shares have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
validly issued and delivered pursuant to this Agreement against payment of
the Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right
and will have been offered and sold in compliance, in all material
respects, with all applicable laws (including, without limitation, federal
or state securities laws). The description of the Shares, and the
statements related thereto, contained in the Registration Statement or the
Prospectus are, and at the Closing Date, will be, complete and accurate in
all material respects. Except for stock options under the Company's 1994
Stock Incentive Plan, limited partnership interests in the Operating
Partnership ("Units"), in connection with agreements relating to the
purchase of properties, which agreements provide for the issuance of Units,
or as set forth in the Prospectus, the Company does not have outstanding,
and at the Closing Date or, if later, an Option Closing Date, will not have
outstanding, any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into,
redeemable or exchangeable for, or any contracts or commitments to issue or
sell, any Shares, any shares of capital stock of the Company or any
Subsidiary or any such warrants, convertible securities or obligations.
Upon payment of the Purchase Price and delivery of certificates
representing the Shares in accordance herewith, each of the Underwriters
will receive good, valid and marketable title to the Shares, free and clear
of all
12
security interests, mortgages, pledges, liens, encumbrances, claims and
equities. The form of share certificates to be used to evidence the Shares
will be in due and proper form and will comply, in all material respects,
with all applicable legal requirements. Other than the Additional Shares
and shares of common stock issuable upon exercise of stock options pursuant
to the Company's 1994 Stock Incentive Plan or upon exchange of Units, no
shares of common or preferred stock of the Company are reserved for any
purpose, except as disclosed in the Prospectus.
(g) As of the Closing Date, the partnership agreement of each
Partnership Subsidiary will have been duly authorized, validly executed and
delivered by each partner thereto and is valid, legally binding and
enforceable in accordance with its terms; immediately following the Closing
Date, all of the issued and outstanding shares of capital stock of each
Corporate Subsidiary will have been duly authorized and validly issued,
fully paid and non-assessable and (except as described in the Prospectus)
will be owned directly or indirectly by the Company or the Operating
Partnership, free and clear of all security interests, liens and
encumbrances, (except for pledges in connection with the loan agreements of
the Company and the Subsidiaries) and all of the partnership interests in
each Partnership Subsidiary will have been duly authorized and validly
issued, fully paid and (except as described in the Prospectus) will be
owned directly or indirectly by the Company or the Operating Partnership,
free and clear of all security interests, liens and encumbrances (except
for pledges in connection with the loan agreements of the Company and the
Subsidiaries).
(h) The financial statements, supporting schedules and related notes
included in, or incorporated by reference into, the Registration Statement
and the Prospectus 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 and the Prospectus present fairly the
information included 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 in the Registration Statement 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
Prospectus, pro forma and/or as adjusted financial information included in
the Prospectus has been prepared in accordance with the applicable
requirements of the Act and the American Institute of Certified Public
Accountants ("AICPA")
13
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.
Coopers & Xxxxxxx L.L.P. (the "Accountants") who have reported on such
financial statements, schedules and related notes, are independent public
accountants with respect to the Company as required by the Act.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement 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 and the Prospectus,
any change in the capitalization, long term or short term debt or in the
capital stock or equity of the Company or any of its Subsidiaries which
would be material to the Company and its Subsidiaries considered as one
enterprise (anything which would be material to the Company and its
Subsidiaries, considered as one enterprise, being hereinafter referred to
as "Material"), (ii) except as described in the Prospectus, neither the
Company nor any of its Subsidiaries has incurred nor will it incur any
liabilities or obligations, direct or contingent, which would be Material,
nor has it entered into nor will it enter into any transactions, other than
pursuant to this Agreement and the transactions referred to herein or as
contemplated in the Prospectus, which would be Material, (iii) there has
not been any Material Adverse Effect, and (iv) except for regular quarterly
distributions on the Common Shares and the dividends on the shares of the
Company's Series A Preferred Stock, par value $.01 per share (the
"Preferred Shares"), 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.
(j) Neither the Company nor any of its Subsidiaries is, or as of the
Closing Date or, if later, an Option Closing Date, will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(k) To the knowledge of the Company, except as set forth in the
Registration Statement and the Prospectus, there are no actions, suits, or
proceedings pending or, after due inquiry, threatened against or affecting
the Company or any of its 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.
14
(l) The Company and each of its Subsidiaries (i) has, and at the
Closing Date or, if later, an Option 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
Prospectus, and (B) complied in all material respects with all laws,
regulations and orders applicable to it or its business and (ii) is not,
and at the Closing Date or, if later, an Option Closing Date, will not be,
in breach of or default (except as previously disclosed to you or your
counsel) 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 Company
and each of its 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. Neither the Company nor any of its Subsidiaries is, nor at the
Closing Date or, if later, an Option 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.
(m) 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 Shares hereunder except such as have been obtained under the Act and
the Exchange Act and such as may be required under state securities, Blue
Sky or real estate syndication laws, the by-laws and rules of the NASD or
the requirements of the NYSE in connection with the purchase and
distribution by the Underwriters of the Shares or such as have been
received prior to the date of this Agreement.
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by
the Company and the Operating Partnership and constitutes a valid and
binding agreement of the Company and the Operating Partnership and is
enforceable, against the Company and the Operating Partnership in
accordance with the terms hereof. The execution, delivery and performance
of this Agreement and the consummation of the
15
transactions contemplated hereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets or
properties of the Company or any of its 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, the certificate of incorporation,
by-laws, partnership agreement or other organizational documents of the
Company or any of its Subsidiaries, any Contract or Other Agreement to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of its assets or properties are
bound or affected, or violate or conflict with 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 Company or any of its Subsidiaries or to the
Properties, in each case 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.
(o) As of the Closing Date or, if later, an Option Closing Date, the
Company and each of its subsidiaries will have good and marketable title to
all Material properties and assets described in 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 or
the Prospectus, or such as secure the Company's loan facilities of the
Company and the Subsidiaries, or would not result in a Material Adverse
Effect.
(p) To the knowledge of the Company and the Operating Partnership: (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 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.
(q) The Company and the Partnership Subsidiaries have property, title,
casualty and liability insurance in favor of
16
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 Company and the Partnership
Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks.
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (A) to the knowledge of the Company and its Subsidiaries, after due
inquiry, the operations of the Company and its 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; (B) to the knowledge
of the Company and its Subsidiaries, after due inquiry, none of the Company
or its 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; (C) none of the
Company or its 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; (D)
none of the Company or its 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 (E) no Property is included or, to the
knowledge of the Company and its 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 Company and its 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
17
or waste, asbestos or asbestos-containing materials, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or
any constituent of any such substance, pollutant or waste which is subject
to 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. ss. 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. ss. 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss.
6901, et seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the
Toxic Substances Control Act, as amended (15 U.S.C. ss. 2601, et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss. 651,
et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 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 Company or any of its Subsidiaries, and none of them nor
any of their directors, officers or employees is connected with the Company
or any of its Subsidiaries as a promoter, selling agent, voting trustee,
director, officer or employee.
(s) The Company and its Subsidiaries are organized and operate in a
manner so as to qualify as a REIT under Sections 856 through 860 of the
Code, as amended (the "Code"), and have
18
elected to be taxed as a REIT under the Code commencing with the taxable
year ending December 31, 1994. The Company and its Subsidiaries intend to
continue to qualify as a REIT for the foreseeable future.
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, and the descriptions thereof or references
thereto are accurate in all material respects.
(u) Except for persons holding Common Shares issued on or prior to
June 30, 1994 and persons holding Units, there are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the Act.
(v) As of the date hereof, the outstanding shares of common stock of
the Company are listed on the NYSE. Prior to the Closing Date, the Common
Stock will be duly authorized for listing on the NYSE upon official notice
of issuance.
(w) None of the Company or any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company or its Subsidiaries,
after due inquiry, is any such dispute threatened which would be Material.
(x) The Company and its 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 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 Company and its Subsidiaries, of
such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(y) The Company and each of its 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.
19
(z) Each of the Partnership Subsidiaries is properly treated as a
partnership for federal income tax purposes and not as a "publicly traded
partnership."
(aa) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, and delivered
to the Underwriters or to counsel for the Underwriters in connection with
the sale of the Shares 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.
(bb) 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, threatened
by the Commission or by the state securities authority of any jurisdiction.
No order preventing or suspending the use of the 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.
7. Indemnification. (a) The Company and the Operating Partnership,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, expenses, liabilities and judgments caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company 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, expenses, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon and in
conformity with information relating to any Underwriters furnished in writing to
the Company by or on behalf of any Underwriter through you expressly for use
therein provided, that this indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, liabilities, claims, damages or expenses
purchased Shares, or any person controlling such Underwriter, if a copy of the
prospectus (as then amended or supplemented if the Company shall have furnished
any such amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if such is required by law, at or
prior to the written confirmation of the sale of such Shares to such person and
if the Prospectus (as so amended or supplemented) would have corrected the
defect giving rise to such loss, liability, claim, damage or expense.
20
(b) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company or the
Operating Partnership, such Underwriter shall promptly notify the Company and
the Operating Partnership in writing and the Company and the Operating
Partnership may, at their election, assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. Any Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall, if the Company or the Operating Partnership has assumed the defense as
indicated above, be at the expense of such Underwriter or such controlling
person unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company or the Operating Partnership, (ii) the
Company or the Operating Partnership shall have failed to assume the defense and
employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the Company and the Operating Partnership and such Underwriter or such
controlling person shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Company and the Operating Partnership (in which case the
Company and the Operating Partnership shall not have the right to assume the
defense of such action on behalf of such Underwriter or such controlling person,
it being understood, however, that the Company and the Operating Partnership
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all such Underwriters and controlling persons, which firm shall be designated in
writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and that all such
fees and expenses shall be reimbursed as they are incurred). Neither the Company
nor the Operating Partnership shall be liable for any settlement of any such
action effected without its written consent but if settled with the written
consent of the Company or the Operating Partnership, the Company and the
Operating Partnership, jointly and severally, agree to indemnify and hold
harmless any Underwriter and any such controlling person from and against any
loss or liability by reason of such settlement. Notwithstanding the immediately
preceding sentence, if in any case where the fees and expenses of counsel are at
the expense of the indemnifying party and an indemnified party shall have
requested the indemnifying party to reimburse the indemnified party for such
fees and expenses of counsel as incurred, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its written
consent if (i) such settlement is entered into more than forty business days
after the receipt by such indemnifying party of the
21
aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Operating Partnership, and the Company's
officers and directors who sign the Registration Statement and any person
controlling the Company or the Operating Partnership within the meaning of
Section 15 of the Act or Section 20 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 and in conformity with information
relating to such Underwriter furnished in writing by or on behalf of such
Underwriter expressly for use in the Registration Statement, the Prospectus or
any preliminary prospectus. In case any action shall be brought against the
Company or the Operating Partnership, any of their officers, directors, or any
person controlling the Company or the Operating Partnership, based on the
Registration Statement, the Prospectus or any preliminary prospectus and in
respect of which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the Company and the
Operating Partnership (except that if the Company or the Operating Partnership
shall have assumed the defense thereof, such Underwriter shall not be required
to do so, but may employ separate counsel therein and participate in the defense
thereof but the fees and expenses of such counsel shall, except as otherwise
provided herein, be at the expense of such Underwriter), and the Company and the
Operating Partnership, their officers, directors, and any person controlling the
Company or the Operating Partnership shall have the rights and duties given to
the Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
expenses, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses, liabilities and judgments (i) 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 Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
22
above but also the relative fault of the Company and the Operating Partnership
on the one hand, and the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
expenses, liabilities or judgments, 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 hand, shall be
deemed to be in the same proportion as the total net proceeds from the Offering
(before deducting expenses) received by the Company and the Operating
Partnership and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Shares, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Operating Partnership on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
Company and the Operating Partnership, or the Underwriters 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 7(d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, expenses, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective number of Shares purchased by each of the Underwriters hereunder and
not joint.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares and the Additional Shares, as the
case may be, under this Agreement
23
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and correct, in
all material respects, on the Closing Date, with the same force and effect as if
made on and as of the Closing Date; and as of an Option Closing Date, if any, to
the knowledge of the Company, such representations and warranties were true and
correct, in all Material respects, as of the date of this Agreement and on the
Closing Date. On or before any Option Closing Date, if any, the Company shall
disclose to the Underwriters the information which would make such
representations and warranties not true and correct, in all Material respects,
as of such Option Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or threatened by the Commission to the
knowledge, after due inquiry, of the Company. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that 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.
(c) (i) Since the date of the latest balance sheet incorporated by
reference in the Registration Statement and the Prospectus, there shall not have
been any Material Adverse Effect, (ii) other than as set forth in the
Prospectus, no proceedings shall be pending or, to the knowledge of the Company,
after due inquiry, threatened against the Company or the Operating Partnership
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, and on the
Closing Date and any Option Closing Date, as the case may be, you shall have
received a certificate dated the Closing Date and the Option Closing Date, as
the case may be, signed by the Chief Executive Officer and the Chief Financial
Officer of the Company, in their capacities as the Chief Executive Officer and
Chief Financial Officer of the Company, on behalf of the Company for itself and
as general partner of the Operating Partnership, confirming the matters set
forth in paragraphs (a), (b) and (c) of this Section 8.
(d) You shall have received on the Closing Date and, if later, an
Option Closing Date an opinion or opinions (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, and the Option Closing Date, as the
case may be, of Xxxxxx Xxxxxx & Xxxxxxx, 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
24
standing in each jurisdiction identified in Schedule I thereto. Each
of the Corporate Subsidiaries is duly qualified or registered as a
foreign corporation to transact business and is in good standing in
each jurisdiction identified in Schedule I thereto.
(ii) 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. Each of the Partnership
Subsidiaries has all requisite partnership power and authority to own,
lease and operate its properties and other assets, 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. Each of the Partnership Subsidiaries is duly qualified or
registered as a foreign partnership and is in good standing in each
jurisdiction identified in Schedule I thereto.
(iii) To the knowledge of such counsel, other than the Additional
Shares, no shares of common or preferred stock of the Company are
reserved for any purpose, except in connection with (1) the possible
issuance of shares of common stock upon redemption of Units and (2)
the Company's 1994 Stock Option Plan. To the knowledge of such
counsel, except for Units and stock options issued under stock option
plans, there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company and no outstanding
options other than as provided in this Agreement, rights (preemptive
or otherwise) or warrants to purchase or to subscribe for shares of
such stock or any other securities of the Company. To the knowledge of
such counsel, no shares of capital stock of any of the Corporate
Subsidiaries are reserved for any purpose, and there are no
outstanding securities convertible into or exchangeable for any
capital stock of the Corporate Subsidiaries, and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or
to subscribe for shares of such capital stock or any other securities
of the Corporate Subsidiaries, except as disclosed in the Prospectus.
To the knowledge of such counsel, all of the outstanding partnership
interests of the Operating Partnership, the Financing Partnership,
Securities, L.P. and the Mortgage Partnership have been duly
authorized, validly issued and fully paid and, except for Units not
owned by the Company, are owned directly or indirectly by the Company
or the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P.,
FISC, FIFC, FIMC or the Mortgage Partnership is in violation of or
default under its charter, by-laws, certificate of limited partnership
or partnership agreement, as the case may be, and (except as
previously disclosed to the
25
Underwriters or their counsel by the Company) none of such entities is
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument 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 or any Property is subject to or bound by, (it
being understood that such counsel need express no opinion with
respect to matters relating to any contract, indenture, mortgage, loan
agreement (other than the 1994 Mortgage Loan), note, lease, joint
venture or partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
management or financing of the Properties) except in each case for
violations or defaults which in the aggregate are not reasonably
expected to have a Material Adverse Effect.
(v) This Agreement was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership and
assuming due authorization, execution and delivery by any other party
thereto, 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 of general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(vi) The execution and delivery of this Agreement and the
performance of the obligations set forth herein by the Company and the
Operating Partnership 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 Act or other securities
laws) and did not and do not conflict with or constitute a breach or
violation of or default under: (1) any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement 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 (it being understood that such
counsel need express no opinion with respect to matters relating to
any contract, indenture, mortgage, loan agreement (other than the 1994
Mortgage Loan), note, lease, joint venture or partnership agreement or
other instrument or agreement relating to the acquisition, transfer,
operation, maintenance, management or financing of the Properties) and
of which such counsel is aware; (2) the certificate of limited
partnership or partnership agreement, as the case may be, of the
Operating Partnership; (3) any applicable law, rule or administrative
regulation of the United States or the State of Delaware; or
26
(4) any order or administrative or court decree of which 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.
(vii) None of the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries is required to be registered under the
Investment Company Act of 1940.
(viii) 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 Shares hereunder, except such as
may be required under the Act or the by-laws and 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.
(ix) 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 documents incorporated therein by reference and
the financial statements and supporting schedule and other financial
and statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Act.
(x) Each of the Underwriters is receiving good, valid and
marketable title to the Shares, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities if the Underwriters acquire such Shares in good faith and
without notice of any such security interests, mortgages, pledges,
liens, encumbrances, claims or equities.
(xi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Registration Statement or the Prospectus, other
than those disclosed therein.
(xii) The information in the Prospectus under "Risk Factors,"
"Restrictions on Transfers of Capital Stock" and "Certain Federal
Income Tax Matters," and in the Annual Report of the Company on Form
10-K for the year ended December 31, 1995, (the "10-K") under
"Mortgage Loans" (with respect to the 1994 Mortgage Loan only) 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 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
27
or referred to in the Registration Statement and Prospectus or to be
filed as exhibits thereto by the Act other than those described or
referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto are accurate in all material respects.
(xiv) To such counsel's knowledge, except for persons holding
Units and for persons holding Common Shares issued on or prior to June
30, 1994, the Prospectus, there are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the Act.
(xv) As of the date hereof, the outstanding shares of common
stock of the Company are listed on the NYSE. The Shares have been
approved for listing on the NYSE upon official notice of issuance.
(xvi) The partnership agreement of each Partnership Subsidiary
has been duly authorized, validly executed and delivered by each of
the Company and the 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 of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
At the Underwriters' request, Xxxxxx Xxxxxx & Xxxxxxx shall also
confirm to the Underwriters that it has been informed by the Staff of the
Commission that the Registration Statement is effective under the Act and, to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act or proceedings therefor
initiated or threatened by the Commission.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall confirm that the opinion
filed as Exhibit 8 to the Registration Statement is true and correct as of the
date thereof and permit the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall state that they have
participated in conferences with officers and other representatives of the
Company and the Operating Partnership, representatives of the independent public
accountants for the Company and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed. On the basis thereof (relying as to materiality to a large
extent upon the opinions of officers and other representatives of the Company),
but without independent verification by such counsel of, and without passing
upon or assuming any responsibility for, the accuracy, completeness or
28
fairness of the statements contained in the Registration Statement or the
Prospectus 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, at the time such 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 or (ii) the Prospectus, as of its date or at the Closing
Date, or, if later, an Option 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 (it being understood that such
counsel need express no opinion with respect to the financial statements,
schedules and other financial and statistical data included in the Registration
Statement or the Prospectus).
In giving its opinion, such counsel may rely (A) as to all matters of
fact, upon certificates and written statements of officers, directors, partners
and employees of and accountants for each of the Company, the Corporate
Subsidiaries and the Partnership Subsidiaries, (B) as to matters of Maryland
law, on the opinion of McGuire, Woods, Battle & Xxxxxx, L.L.P., Baltimore,
Maryland, which opinion shall be in form and substance reasonably satisfactory
to counsel for the Underwriters, (C) as to matters of Illinois law, on the
opinion of Barack, Ferazzano, Xxxxxxxxxx & Xxxxxxx, Chicago, Illinois, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Underwriters, and (D) as to the good standing and qualification of the
Company, the Corporate Subsidiaries and the Partnership Subsidiaries to do
business in any state or jurisdiction, upon certificates of appropriate
government officials or opinions of counsel in such jurisdictions. Counsel need
express no opinion (i) as to the enforceability of forum selection clauses in
the federal courts or (ii) with respect to the requirements of, or compliance
with, any state securities or "Blue Sky" or real estate syndication laws.
(e) You shall have received on the Closing Date and, if later, an
Option Closing Date, an opinion or opinions (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, and the Option Closing Date, as the
case may be, of McGuire, Woods, Battle & Xxxxxx, L.L.P., 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
29
corporate power and authority to enter into and perform its obligations
under this Agreement.
(iii) The Company's authorized capitalization consists of 10,000,000
shares of preferred stock, par value $.01 per share, 100,000,000 shares of
common stock, par value $.01 per share and 65,000,000 shares of excess
stock, par value $.01 per share. All of the issued and outstanding shares
of capital stock of the Company have been duly authorized and are validly
issued, fully paid and non-assessable. All the issued and outstanding
shares of capital stock of the Corporate Subsidiaries have been duly
authorized and are validly issued, fully paid and non-assessable.
(iv) Each of the Shares has been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when validly issued and
delivered pursuant to this Agreement against payment of the Purchase Price,
will be duly authorized, validly issued, fully paid and non-assessable. To
the extent Maryland law provides the basis for determination, each of the
Underwriters is receiving good, valid and marketable title to the Shares,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities if the Underwriters acquire such Shares
in good faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities. The terms of the Shares
conform in all material respects to all statements and descriptions related
thereto contained in the Registration Statement and Prospectus. The form of
stock certificates evidencing the Shares are in due and proper form and
comply in all material respects with all applicable legal requirements. The
issuance of the Shares is not subject to any preemptive or other similar
rights arising under Maryland General Corporation Law, the Company's
charter or by-laws, as amended to date, or any agreement of which such
counsel is aware.
(v) This Agreement was duly and validly authorized and executed by the
Company.
(vi) The execution and delivery of this Agreement and the performance
of the obligations set forth herein 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 Act or
other securities laws) and did not and do not conflict with or constitute a
breach or violation of or default under: (1) the charter or by-laws, as the
case may be, of the Company; (2) any applicable Maryland law, rule or
administrative regulation or any order or administrative or court decree of
which 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.
30
(vii) 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 Shares hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication laws.
(viii) The information in the Prospectus under "Description of Common
Stock," "Restrictions on Transfers of Capital Stock" and Item 15 of Part II
of the Registration Statement 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.
(ix) The Company and each of the Corporate Subsidiaries was authorized
to enter into the partnership agreement of each Partnership Subsidiary for
which the Company or such Corporate Subsidiary, as the case may be, is the
general partner.
(f) You shall have received on the Closing date and, if later, an
Option Closing Date, an opinion or opinions (satisfactory to you and counsel for
the Underwriters), dated the Closing Date, or the Option Closing Date, as the
case may be, of Barack, Ferazzano, Xxxxxxxxxx & Xxxxxxx, special Illinois
counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company, the
Operating Partnership, FIFC, the Financing Partnership, FIP, FIPC,
Securities, L.P.; FRA, FIMC, the Mortgage Partnership, and FISC is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in (a) the documentation evidencing and/or
securing (1) a certain revolving credit facility made available to the
Operating Partnership and FIP by The First National Bank of Chicago, on
behalf of itself and as agent for various co-lenders, (2) a certain loan
made available to Harrisburg, L.P. by ORIX USA, Inc., (3) a certain
revolving loan facility made available to the Operating Partnership by
Madison Bank, N.A., (4) a certain mortgage loan made available to the
Mortgage Partnership by Nomura Asset Capital Corporation, and (5) a certain
revolving credit facility made available to the Operating Partnership by
The First National Bank of Chicago (such documentation, collectively, the
"Credit Documents") and (b) various pending agreements of purchase and sale
into which FR Acquisitions, Inc. has entered into for the purchase of
certain real properties (collectively, the "Pending Contracts"), except in
each case for defaults which in the aggregate are not reasonably expected
to have a Material Adverse Effect.
31
(ii) The execution and delivery of this Agreement and the performance
of the obligations set forth herein by the Company and the Operating
Partnership did not and do not conflict with or constitute a breach or
violation of or default under: (1) the Credit Documents and the Pending
Contracts; (2) any applicable law, rule or administrative regulation of the
United States; or (3) any order or administrative or court decree issued to
or against or concerning the Company, the Operating Partnership, FIFC, the
Financing Partnership, FIP, FIPC, FIMC, the Mortgage Partnership,
Securities, L.P., FRA or FISC, of which 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 that do or are likely to
have a Material Adverse Effect.
(iv) The information in the Prospectus Supplement under "Prospectus
Supplement Summary - Recent Developments Debt Financing", and in the 10-K
under Item 2 "The Properties, - Mortgage Loans and - Acquisition
Facilities" to the extent that it constitutes statements of law,
descriptions of statutes, summaries of documents or legal conclusions, has
been reviewed by such counsel and is correct in all material respects and
presents fairly the information disclosed therein.
(g) You shall have received on the Closing Date and the Option Closing
Date, as the case may be, an opinion, dated the Closing Date and the Option
Closing Date, as the case may be, of Xxxxxx & Xxxxx, counsel for the
Underwriters, as to the matters referred to in clauses (iv) (with respect to the
first and last sentences only) of Section 8(e) and clauses (v), and (ix) of
Section 8(d) and in addition, Xxxxxx & Xxxxx shall make statements similar to
those contained in the first and third paragraphs following Section 8(d)(xvi)
hereto and shall be entitled to rely on those persons described in the fourth
paragraph following Section 8(d)(xvi) hereto with respect to the matters
described therein.
(h) On the date hereof, Coopers & Xxxxxxx L.L.P. 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
its counsel), confirming that they are independent public accountants with
respect to the Company and its Subsidiaries as required by the Act and with
respect to the financial and other statistical and numerical information
contained in the Registration Statement. At the Closing Date and, as to the
Additional Shares, at any Option Closing Date, Coopers & Xxxxxxx L.L.P. 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
32
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
and the applicable Option Closing Date, as the case may be, 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 and the applicable Option Closing Date, as the
case may be.
(i) At the Closing Date, the Shares shall have been approved for
listing on the NYSE upon official notice of issuance.
(j) The Company and its Subsidiaries shall not have failed at or prior
to the Closing Date and any applicable Option Closing Date, as the case may be,
to perform or comply with any of the agreements pursuant to Section 5 herein
contained and required to be performed or complied with by the Company at or
prior to the Closing Date and the Option Closing Date, as the case may be.
(k) At the Closing Date and, if later, at any applicable Option
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 Shares, 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 Company in
connection with the issuance and sale of the Shares as herein contemplated shall
be reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(l) At the Closing Date, the Underwriters shall have received a letter
agreement from certain of the directors and executive officers of the Company,
as listed on Schedule III hereto, substantially in the form attached hereto as
Exhibit A.
9. Effective Date of Agreement; Termination; Default by One or More
Underwriters. This Agreement shall become effective upon the execution of this
Agreement.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been a Material Adverse
Effect, (ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus,
(iii) the suspension or material limitation of trading in securities on the NYSE
or the American Stock Exchange or material limitation on
33
prices for securities on either of such exchanges, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion would result in a Material Adverse Effect, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or on an applicable Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it or
they have agreed to purchase hereunder on such date and the aggregate number of
Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Firm Shares or
Additional Shares, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the non-defaulting
Underwriters, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or on an applicable Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares, or Additional Shares, as the case may be, and
the aggregate number of Firm Shares or Additional Shares, as the case may be,
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares or Additional Shares, as the case may be, to be
purchased on such date by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date or the applicable Option Closing Date, as
the case may be, 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
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 any such Underwriter under this Agreement.
34
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to First
Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx X.
Xxxxxxxxx, Esq. and (b) if to you, c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, with a copy to Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxx X. Xxxx, Xx., or in any case to such other address as
the person to be notified may have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and in
full force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Company, the
officers or directors of the Company or any controlling person of the Company
and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of
Sections 5(k) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriters 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,
the Company and the Operating Partnership agree to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Operating
Partnership and the Underwriters, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
35
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Operating Partnership, and the several Underwriters.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By:/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
as its sole general partner
By:/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & CO.
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:/s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
36
SCHEDULE I
Number of Firm
Shares to be
Underwriters Purchased
------------ ---------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation....... 1,250,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated........ 1,250,000
Prudential Securities Incorporated........................ 1,250,000
Xxxxx Xxxxxx Inc.......................................... 1,250,000
---------
Total........ 5,000,000
37
SCHEDULE II
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
First Industrial, L.P. Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Illinois
Corporation Michigan
First Industrial Pennsylvania, L.P. Pennsylvania
First Industrial Pennsylvania Pennsylvania
Corporation
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Pennsylvania
Corporation
38
First Industrial Financing Georgia
Partnership, L.P. Illinois
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia
Illinois
Michigan
Wisconsin
First Industrial Management Georgia
Corporation Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Third-Party Georgia
Management Corporation Illinois
Michigan
Minnesota
First Industrial (Atlanta) Management Georgia
Corporation Illinois
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
39
First Industrial Mortgage Partnership, Georgia
L.P. Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis None
Corporation
First Industrial Development Services None
Group, L.P.
FI Development Services Corporation None
40
SCHEDULE III
LIST OF DIRECTORS AND OFFICERS SUBJECT TO LOCKUP PROVISIONS
Xxx X. Xxxxxxx
Xxxxxxx X. Tomasz
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Johannson X. Xxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Draft
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
41
EXHIBIT A
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
XXXXXXX XXXXX & CO.
PRUDENTIAL SECURITIES INCORPORATED
XXXXX XXXXXX INC.
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated October 21, 1996 (the
"Underwriting Agreement") among First Industrial Realty Trust, Inc. (the
"Company") and First Industrial, L.P. and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, Xxxxxxx Xxxxx & Co., Prudential Securities Incorporated
and Xxxxx Xxxxxx Inc., (the "Underwriters") of the underwriters named in
Schedule I thereto, relating to the public offering of 5,000,000 shares of
common stock, par value $.01 per share, of the Company. This letter is delivered
by the undersigned to the Underwriters pursuant to Section 8(l) of the
Underwriting Agreement. Capitalized terms used herein shall, unless otherwise
defined herein, have the meaning set forth in the Underwriting Agreement.
The undersigned hereby agrees that the undersigned shall not, without
the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJ"), directly or indirectly sell, offer to sell, contract to sell, grant any
option to purchase or otherwise dispose of any shares of Common Stock
(including, without limitation, shares of Common Stock which may be deemed to be
beneficially owned in accordance with Rule 13d-3 under the Securities Exchange
Act of 1934, as amended, and shares of Common Stock which may be received upon
exercise of stock options or warrants) or any securities convertible into or
exercisable or exchangeable for Common Stock, or in any other manner transfer
all or a portion of the economic consequences associated with the ownership of
Common Stock (each of the foregoing actions, a "Transfer"), prior to the
expiration of 90 days from the date of the Prospectus Supplement.
Notwithstanding the foregoing, no such consent shall be required in
connection with (i) the delivery to the Company, in connection with the exercise
of options or the grant of Common Stock under the Company's stock incentive
plan, of shares of Common Stock in satisfaction of the exercise price of such
options or applicable withholding requirements, (ii) the exchange or redemption
of limited partnership interests in First Industrial, L.P. ("Units") for shares
of Common Stock, (iii) the Transfer of shares of Common Stock acquired by the
undersigned in the open market, (iv) grants of a bona fide security interest in,
or a bona fide pledge of, shares of Common Stock or Units to a recognized
financial institution and transactions contemplated by such grants or pledges
whether made before or after the date of the Underwriting Agreement, (v) any
Transfer to entities controlled by the undersigned and (vi) any Transfer to
members of the
42
immediate family of the undersigned (or to an entity for their benefit);
provided that, in the case of a Transfer of the type described in clause (vi),
prior to making any such Transfer, the undersigned shall have delivered a
written instrument to DLJ in which the transferee agrees to be bound by the
restrictions contained in this agreement with respect to the subject of such
Transfer.
The obligation of the undersigned shall survive the death or
incapacity of the undersigned and shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
Very truly yours,
Date: Name:
Address:
Agreed:
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
By:
-------------------------------------
Authorized Signature
43
