First Industrial Realty Trust, Inc. 8,400,000 Shares Common Stock Underwriting Agreement
EXHIBIT 1.1
First Industrial Realty Trust, Inc.
8,400,000 Shares
Common Stock
8,400,000 Shares
Common Stock
Underwriting Agreement
May 31, 2011
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the “Company”), by this
agreement (the “Agreement”) proposes to issue and sell to UBS Securities LLC (the
“Underwriter”), a total of 8,400,000 shares of common stock (the “Securities”), par
value $0.01 per share (“Common Stock”).
The Company and First Industrial, L.P., a Delaware limited partnership whose sole general
partner is the Company (the “Operating Partnership”), have prepared and filed with the
Securities and Exchange Commission (the “Commission”) in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement (file number 333-157771) on
Form S-3, including the related prospectus (the “Base Prospectus”), relating to certain
securities (the “Shelf Securities”) to be issued from time to time by the Company or the
Operating Partnership, as the case may be. The Company also has filed, or proposes to file, with
the Commission pursuant to Rule 424 under the Securities Act (“Rule 424”) a prospectus
supplement specifically relating to the Securities (a “Prospectus Supplement”). The
registration statement, as amended to the date of this Agreement, and including any registration
statement filed pursuant to Rule 462(b) under the Securities Act (a “Rule 462(b) Registration
Statement”) and any required information deemed to be a part thereof at the time of
effectiveness pursuant to Rule 430B under the Securities Act, is hereinafter referred to as the
“Registration Statement.” Any preliminary prospectus supplement that describes the
Securities and the offering thereof and is used prior to the filing of the Prospectus (as defined
below) is hereafter called, together with the Base Prospectus, a “preliminary prospectus.”
For purposes of this Agreement, “Effective Time” with respect to the Registration
Statement means if the Company has advised the Underwriter that it does not propose to amend such
registration statement, the date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become effective upon filing pursuant to
Rule 462(c). Any reference in this Agreement to the Registration Statement, the Base Prospectus,
the Prospectus as defined hereunder or any preliminary prospectus, as the case may be, previously
filed with the Commission pursuant to Rule 424 shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act which were filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Exchange Act”) on or before
the date of this Agreement or the date of the Registration Statement or the Prospectus, as the case
may be; and any reference to “amend,” “amendment” or “supplement” with
respect to the Registration Statement or the Prospectus shall be deemed to refer to and
include any documents filed under the Exchange Act after the date of this Agreement, or the date of
the Registration Statement or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein. “Registration Statement” without reference to a time means the
Registration Statement as of its Effective Time. “Registration Statement” as of any specified time
means the Registration Statement in the form then filed with the Commission immediately prior to
that time, including any amendment thereto or any document incorporated by reference therein and
any prospectus deemed or retroactively deemed to be a part thereof that has not been superseded or
modified. For purposes of the previous sentence, information contained in a form of prospectus or
prospectus supplement that is deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430A shall be considered to be included in the Registration Statement as of the
time specified in Rule 430A. “Statutory Prospectus” as of any specified time means the
prospectus included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein and any prospectus supplement deemed or retroactively
deemed to be a part thereof that has not been superseded or modified. For purposes of the
preceding sentence, information contained in a form of prospectus that is deemed retroactively to
be a part of the Registration Statement pursuant to Rule 430A shall be considered to be included in
the Statutory Prospectus as of the actual time that form of prospectus is filed with the Commission
pursuant to Rule 424(b) (“Rule 424(b)”) under the Securities Act. “Prospectus”
means the Statutory Prospectus in the form first used (or made available upon request of purchasers
pursuant to Rule 173) in connection with confirmation of sales of the Securities that discloses the
public offering price and other final terms of the Securities and otherwise satisfies Section 10(a)
of the Securities Act. “Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities Act, relating to the Securities in the
form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g), including any “road show for an offering
that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required
to be filed with the Commission. “General Use Issuer Free Writing Prospectus” means any
Issuer Free Writing Prospectus that is intended for general distribution to prospective investors,
as evidenced by its being specified as such in Schedule I to this Agreement. “Limited
Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Issuer Free Writing Prospectus. “Applicable Time” means 4:15 P.M. (Eastern
time) on the date of this Agreement. All references in this Agreement to financial statements and
schedules and other information which is “contained,” “included,” “described” or “stated” in the
Registration Statement or the Prospectus (and all other references of like import) shall be deemed
to mean and include all such financial statements and schedules and other information which is or
is deemed to be incorporated by reference in the Registration Statement or Prospectus, as the case
may be.
At or prior to the Applicable Time, the Company had prepared the following information (the
“Applicable Time Information”): (1) the Base Prospectus and the preliminary prospectus, if
any, as amended or supplemented, (2) any Issuer Free Writing Prospectus identified on Schedule
I attached hereto, if any, (3) the pricing information orally conveyed to prospective investors
set forth on Schedule II attached hereto (the “Pricing Information”) and (4) any
filing under the Exchange Act which is deemed incorporated by reference in the Base Prospectus, the
preliminary prospectus or the Registration Statement.
The Company hereby agrees with the Underwriter as follows:
1. The Company agrees to issue and sell the Securities to the Underwriter as hereinafter
provided, and the Underwriter, on the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees to purchase from the
Company, at a purchase price per share of $12.01 (the “Purchase Price”), the Securities.
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2. The Company understands that the Underwriter intends (i) to make a public offering (the
“Offering”) of the Securities as soon after the execution of this Agreement as in the
judgment of the Underwriter is advisable and (ii) initially to offer the Securities upon the terms
to be set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order in immediately
available funds at the offices of Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 10:00 A.M., New York City time, on June 6, 2011 (or at such other time and place on the
same or such other date, not later than the third Business Day thereafter, as you and the Company
may agree in writing). Such payment will be made upon delivery to the Underwriter of the
Securities registered in such names and in such denominations as you shall request not less than
two full Business Days prior to the date of delivery, with any transfer taxes payable in connection
with transfer to the Underwriter duly paid by the Company. As used herein, the term “Business
Day” means any day other than a day on which banks are permitted or required to be closed in
New York City or the City of Chicago. The time and date of such payment and delivery with respect
to the Securities are referred to herein as the “Closing Date.” The Securities will be
delivered through the book-entry facilities of The Depository Trust Company (“DTC”).
4. Each of the Company and the Operating Partnership severally covenants and agrees with the
Underwriter as follows:
(a) In respect of the offering of the Securities, the Company will (i) prepare a Prospectus
Supplement setting forth the number of Securities covered thereby, the name of the Underwriter
participating in the offering and the number of Securities which the Underwriter has agreed to
purchase, the price at which the Securities are to be purchased by the Underwriter from the
Company, the initial public offering price, the selling concession and reallowance, if any, and
such other information as the Underwriter and the Company deem appropriate in connection with the
offering of the Securities, (ii) file the Statutory Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act within the applicable time period prescribed by such rule for
such filing (iii) file any Issuer Free Writing Prospectus to the extent required by Rule 433 under
the Securities Act; and file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale of the Securities;
and (iv) furnish copies of the Statutory Prospectus to the Underwriter and to such dealers as you
shall specify in New York City prior to 10:00 A.M., New York City time as soon as practicable after
the date of this Agreement in such quantities as you may reasonably request. The Company has
complied and will comply with Rule 433;
(b) The Company will comply with the Securities Act and the Exchange Act so as to permit the
completion of the distribution of the Securities contemplated in this Agreement and in the
Registration Statement and the Prospectus. At any time when the Prospectus is (or but for the
exemption in Rule 172 would be) required to be delivered under the Securities Act or the Exchange
Act in connection with sales of Securities, the Company will advise you promptly and, if requested
by you, confirm such advice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the transmittal to the Commission for filing of any Prospectus or
other supplement or amendment to the Prospectus to be filed pursuant to the Securities Act, (iii)
the receipt of any comments from the Commission relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any of the transactions contemplated by this Agreement,
(iv) any request by the Commission for post-effective amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in
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any jurisdiction, or the initiation of any proceeding for such purposes, and (vi) the
happening of any event which makes any statement of a material fact made in the Registration
Statement, the Prospectus or the Applicable Time Information untrue or which requires the making of
any additions to or changes in the Registration Statement, the Prospectus or the Applicable Time
Information 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;
(c) The Company will furnish to you, without charge, such number of conformed copies of the
Registration Statement as first filed with the Commission and of each amendment to it, including
all exhibits and documents incorporated by reference, as you may reasonably request. If
applicable, the copies of the Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Commission’s Electronic Data Gathering and Retrieval System
(“XXXXX”), except to the extent permitted by Regulation S-T;
(d) At any time when the Prospectus is (or but for the exemption in Rule 172 would be)
required to be delivered under the Securities Act or the Exchange Act in connection with sales of
Securities, not to prepare, use, authorize, approve, refer to or file any Issuer Free Writing
Prospectus or any amendment to the Registration Statement or any Rule 462(b) Registration Statement
or to make any amendment or supplement to the Prospectus of which you shall not previously have
been advised or to which you or counsel for the Underwriter 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, Issuer Free Writing Prospectus, or
amendment or supplement to the Prospectus which, in the opinion of counsel for the Underwriter, may
be necessary in connection with the distribution of the Securities by you, and to use its
reasonable best efforts to cause the same to become promptly effective. If applicable, the
Prospectus and any amendments or supplements thereto furnished to the Underwriter will be identical
to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T;
(e) (i) If, at any time when the Prospectus is (or but for the exemption in Rule 172 would be)
required to be delivered under the Securities Act or the Exchange Act in connection with sales of
Securities, any event shall occur as a result of which, in the opinion of counsel for the
Underwriter, 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 Underwriter) 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
the Underwriter and to such dealers as the Underwriter may designate, such number of copies thereof
as the Underwriter or dealers may reasonably request and (ii) if any time prior to the Closing Date
(1) any event shall occur or condition shall exist as a result of which the Applicable Time
Information as then amended or supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements therein, in the light
of the circumstances, not misleading or (2) it is necessary to amend or supplement the Applicable
Time Information to comply with law, the Company will immediately notify the Underwriter thereof
and forthwith prepare and, subject to paragraph (c) above; file with the Commission (to the extent
required) and furnish to the Underwriter and to such dealers as the Underwriter may designate, such
amendments or
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supplements to the Applicable Time Information as may be necessary so that the statements in
the Applicable Time Information as so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Applicable Time Information will comply with law;
(f) The Company will use its reasonable best efforts, in cooperation with the Underwriter, to
qualify, register or perfect exemptions for the Securities for offer and sale by the Underwriter to
qualified institutions under the applicable state securities, Blue Sky and real estate syndication
laws of such jurisdictions as you may reasonably request; provided, however, the
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 Securities 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 Underwriter may reasonably
request for the distribution of the Securities and to file such consents to service of process or
other documents as may be necessary in order to effect such qualification or registration;
provided, however, the 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;
(g) To make generally available to the Company’s stockholders as soon as reasonably
practicable but not later than 40 days after the close of the period covered thereby (75 days in
the event the close of such period is the close of the Company’s fiscal year), an earning statement
(in form complying with the provisions of Rule 158 of the Securities Act) covering a period of at
least twelve months after the effective date of the Registration Statement (but in no event
commencing later than 75 days after such date) which shall satisfy the provisions of Section 11(a)
of the Securities Act, and, if required by Rule 158 of the Securities Act, to file such statement
as an exhibit to the next periodic report required to be filed by the Company under the Exchange
Act covering the period when such earning statement is released;
(h) During the period when the Prospectus is (or but for the exemption in Rule 172 would be)
required to be delivered under the Securities Act or the Exchange Act in connection with sales of
the Securities, to file all documents required to be filed by it with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required by the Exchange Act;
(i) The Company will use its reasonable 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 and to satisfy
all conditions precedent to the delivery of the Securities;
(j) The Company will use the net proceeds received by it from the sale of the Securities in
the manner specified in the Registration Statement, the Applicable Time Information and the
Prospectus Supplement under “Use of Proceeds;”
(k) 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”), unless the Company’s board of directors determines that it is no
longer in the best interests of the Company to be so qualified;
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(l) The Company will not, at any time, directly or indirectly, take any action intended, or
which might reasonably be expected to cause or result in, or which will constitute stabilization of
the price of the Securities to facilitate the sale or resale of any Securities in violation of the
Securities Act;
(m) The Company will cooperate with the Underwriter and use commercially reasonable efforts to
permit the Securities to be eligible for clearance and settlement through the facilities of DTC;
(n) The Company will use its best efforts to list, subject to notice of issuance, the
Securities on The New York Stock Exchange, Inc. (the “NYSE”);
(o) For the period specified below (the “Lock-Up Period”), the Company will not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or
filing, or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities or any such other securities, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Securities
or such other securities, in cash or otherwise, without the prior written consent of the
Underwriter, except (1) (a) issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities pursuant to the contractual terms of those securities or (b)
the exercise of warrants or options or vesting of restricted stock units, in each case of clauses
(1)(a) and (b) above, outstanding on the date hereof, (2) sales of Common Stock under the Company’s
Dividend Reinvestment and Direct Stock Purchase Plan, (3) grants of Common Stock, employee stock
options or restricted stock units pursuant to the terms of a plan in effect on the date hereof, (4)
issuances of Securities pursuant to the exercise of such options or the exercise of any other
employee stock options outstanding on the date hereof or (5) the redemption, repurchase or other
acquisition by the Company or the Operating Partnership of any of their outstanding debt securities
(including, without limitation, the Operating Partnership’s Exchangeable Senior Notes due 2011).
The initial Lock-Up Period will commence on the date hereof and will continue and include the date
60 days after the date of the Prospectus or such earlier date that the Underwriter consents to in
writing;
(p) The Company will prepare and file or transmit for filing with the Commission in accordance
with Rule 424(b) of the Securities Act the Prospectus;
(q) For 12 months after the date hereof, the Company will furnish to the Underwriter, as soon
as they are available, copies of all reports or other communications (financial or other) furnished
to holders of the Securities, and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange or automatic quotation system;
provided the Company will be deemed to have furnished such reports and financial statements
to the Underwriter to the extent they are filed on XXXXX; and
(r) The Company will, pursuant to reasonable procedures developed in good faith, retain copies
of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with
Rule 433 under the Securities Act.
5. Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Underwriter, and the Underwriter represents and agrees that,
unless they obtain the prior consent of the Company, neither the Company nor the Underwriter has
made nor will make any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus, or that would
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otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed
with the Commission. Any such free writing prospectus consented to by the Company and the
Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company represents that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping.
6. The Company and the Operating Partnership, jointly and severally, represent and warrant to
the Underwriter as of the date hereof and at the Closing Date that:
(a) The Company and the Operating Partnership meet the requirements for use of Form S-3. The
Registration Statement was filed by the Company and the Operating Partnership with the Commission
not earlier than three years prior to the date hereof and has been declared effective by the
Commission;
(b) As of the applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement and any such post-effective amendment complied and
will comply in all material respects with all applicable provisions of the Securities Act, and did
not and will not contain any 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.
As of the date of the Prospectus and any amendment or supplement thereto and the Closing Date, the
Prospectus will comply in all material respects with all applicable provisions of the Securities
Act and will not contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. If a Rule 462(b) Registration Statement is filed in connection
with the offering and sale of the Securities, the Company and the Operating Partnership will have
complied or will comply with the requirements of Rule 111 under the Securities Act relating to the
payment of filing fees therefor. The foregoing representations and warranties in this Section 6(b)
do not apply to any statements or omissions made in reliance on and in conformity with information
relating to the Underwriter furnished in writing to the Company or the Operating Partnership by the
Underwriter specifically for inclusion in the Registration Statement or Prospectus or any amendment
or supplement thereto. Neither the Company nor the Operating Partnership has distributed, and
prior to the later of the Closing Date and the completion of the distribution of the Securities,
will not distribute, any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the preliminary prospectus, the Prospectus or any
other materials, if any, permitted by the Securities Act (which were disclosed to the Underwriter
and the Underwriter’s counsel and are listed on Schedule I hereof);
(c) The preliminary prospectus, filed as part of the Registration Statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied or will comply when so filed in all material respects with all applicable provisions of
the Securities Act; did not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; each preliminary prospectus and the Prospectus delivered to
the Underwriter for use in connection with the offering of Securities will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(d) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the Prospectus and the Applicable Time Information pursuant to Item 12 of Form S-3 under
the Securities Act, at the time they were, or hereafter are, filed with the Commission,
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complied and will comply in all material respects with the requirements of the Exchange Act, and, when
read together with other information included in, and incorporated by reference in, the
Registration Statement, the Prospectus and the Applicable Time Information, at the time the
Registration Statement became effective, as of the date of the Prospectus, the Applicable Time and
as of the Closing Date, or during the period specified in Section 4(e) 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 the Underwriter
furnished in writing to the Company or the Operating Partnership by the Underwriter specifically
for inclusion in the Registration Statement, the Prospectus or the Applicable Time Information or
any amendment or supplement thereto;
(e) At the time of filing the Registration Statement and at the date of this Agreement, each
of the Company and the Operating Partnership was not and is not an “ineligible issuer,” as defined
in Rule 405, including as a result of (x) the Company, the Operating Partnership or any other
subsidiary in the preceding three years having been convicted of a felony or misdemeanor or having
been made the subject of a judicial or administrative decree or order as described in Rule 405 and
(y) the Company or the Operating Partnership in the preceding three years having been the subject
of a bankruptcy petition or insolvency or similar proceeding, having had a registration statement
be the subject of a proceeding under Section 8 of the Securities Act or being the subject of a
proceeding under Section 8A of the Securities Act in connection with the offering of the
Securities, all as described in Rule 405. The Company has paid the registration fee for this
offering pursuant to Rule 457 under the Securities Act.
(f) As of the Applicable Time, neither the Applicable Time Information nor any individual
Limited Use Issuer Free Writing Prospectus included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any prospectus included in the Applicable Time Information
or any Issuer Free Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of the information
described in the second paragraph of Section 7 hereof. No statement of material fact included in
the Prospectus has been omitted from the Applicable Time Information and no statement of material
fact included in the Applicable Time Information that is required to be included in the Prospectus
has been omitted therefrom;
(g) Each Issuer Free Writing Prospectus identified in Schedule I hereto, as of its
issue date and at all subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or notifies the Underwriters as
described in the second following sentence, will comply in all material respects with all
applicable provisions of the Securities Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Each Issuer Free
Writing Prospectus identified in Schedule I hereto, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Securities or until any
earlier date that the Company notified or notifies the Underwriter as described in the next
sentence, did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement or included or would include an
untrue statement of a material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, (i) the Company has promptly notified
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or will promptly notify the Underwriter and (ii) the Company has promptly amended or will
promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in
or omissions from any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished by the Underwriter consists of
the information described as such in the second paragraph of Section 7 hereof;
(h) The Company (including its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) any documents listed on Schedule
I hereto and other written communications approved in writing in advance by the Underwriter.
Each such Issuer Free Writing Prospectus, if any, complied in all material respects with the
Securities Act, has been filed in accordance with the Securities Act (to the extent required
thereby) and did not, and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or omissions made in
each such Issuer Free Writing Prospectus in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company in writing by the Underwriter through the
Underwriter expressly for use in any Issuer Free Writing Prospectus
(i) The Company has been duly organized and is validly existing as a corporation under and by
virtue of the laws of the State of Maryland, and is in good standing with the State Department of
Assessments and Taxation of Maryland. The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under and by virtue of the Delaware
Revised Uniform Limited Partnership Act. Each of First Industrial Financing Partnership, L.P. (the
“Financing Partnership”), First Industrial Securities, L.P. (“Securities, L.P.”),
First Industrial Mortgage Partnership, L.P. (the “Mortgage Partnership”), First Industrial
Pennsylvania, L.P. (“FIP”), First Industrial Harrisburg, L.P. (“FIH”), FI
Development Services, L.P. (“FIDS”), First Industrial Texas, L.P. (“FIT”) and First
Industrial Indianapolis, L.P. (“FII”), FR FirstCal, LLC (“FRFC”), First Industrial
Investment II, LLC (successor by merger to First Industrial Investment, Inc.) (“FIII”) and
FR Investment Properties, LLC (“FRIP”) (the Financing Partnership, Securities, L.P., the
Mortgage Partnership, FIP, FIH, FIDS, FIT, FII, FRFC, FIII and FRIP are referred to collectively
herein as the “Partnership Subsidiaries”) has been duly organized and is validly existing
as a limited partnership or a limited liability company, as the case may be, in good standing under
and by virtue of the laws of its jurisdiction of organization. Each of First Industrial Harrisburg
Corporation (“FIHC”), First Industrial Securities Corporation (“FISC”), First
Industrial Indianapolis Corporation (“FIIC”), First Industrial Finance Corporation
(“FIFC”), First Industrial Mortgage Corporation (“FIMC”), FI Development Services
Corporation (“FIDSC”), First Industrial Pennsylvania Corporation (“FIPC”) and First
Industrial Investment Properties, Inc. (“FIIP”) (FIHC, FISC, FIIC, FIFC, FIMC, FIDSC, FIPC
and FIIP 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” or individually as a “Subsidiary”) has been duly organized and is
validly existing as a corporation in good standing under and by virtue of the laws of its
jurisdiction of incorporation. Other than the Subsidiaries, no entity in which the Company owns
any equity securities constitutes, individually or in the aggregate, a “significant subsidiary”
under Rule 1-02 of Regulation S-X (substituting “net income” for “income from continuing
operations”) promulgated under the Exchange Act. The Company is the sole general partner of the
Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole general
partner of the Financing Partnership. FIMC is a wholly-owned subsidiary of the Company and is the
sole general partner of the Mortgage Partnership.
- 9 -
FISC is a wholly-owned subsidiary of the Company and is the sole general partner of
Securities, L.P. 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 FIH. FIDSC is
a wholly-owned subsidiary of the Company and is the sole general partner of FIDS. The Operating
Partnership is the sole limited partner of each Partnership Subsidiary. The Company, the Operating
Partnership and each of the Subsidiaries has, and at the Closing Date will have, full corporate,
limited partnership or limited liability company power and authority, as the case may be, (i) to
conduct all the activities conducted by it, (ii) to own, lease or operate all the properties and
other assets owned, leased or operated by it, (iii) to conduct its business in which it engages or
proposes to engage as described in the Prospectus and (iv) to consummate the transactions
contemplated hereby. The Company and each of the Corporate Subsidiaries is, and at the Closing
Date will be, duly qualified or registered to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted by it or the
character of the properties and assets owned, leased or operated by it makes such qualification or
registration necessary, except where failure to obtain such qualifications or registration will not
have a material adverse effect on (i) the condition, financial or otherwise, or the earnings,
assets or business affairs or prospects of the Operating Partnership, Company and their
Subsidiaries, taken as a whole, or on the 761 in service properties owned, directly or indirectly,
by the Company as of March 31, 2011 (the “Properties”), taken as a whole, (ii) the
issuance, validity or enforceability of the Securities or (iii) the consummation of any of the
transactions contemplated by this Agreement (each a “Material Adverse Effect”). The
Operating Partnership and each of the Partnership Subsidiaries is, and at the Closing Date will be,
duly qualified or registered to do business and in good standing as a foreign limited partnership
or limited liability company, as the case may be, in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned, leased or operated by it makes
such qualification or registration necessary, except where failure to obtain such qualification or
registration will not have a Material Adverse Effect. Complete and correct copies of the charter
documents, partnership agreements and other organizational documents of the Company and its
Subsidiaries and all amendments thereto as have been requested by the Underwriter or their counsel
have been delivered to the Underwriter or its counsel;
(j) The Company’s authorized capitalization consists of 10,000,000 shares of preferred stock,
par value $0.01 per share, 150,000,000 shares of Common Stock and 65,000,000 shares of excess
stock, par value $0.01 per share. All of the Company’s issued and outstanding shares of Common
Stock and preferred stock have been duly authorized and are validly issued, fully paid and
non-assessable 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
Securities have been duly authorized for issuance and sale to the Underwriter 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 Securities, 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. Upon payment of the Purchase Price therefor and delivery of the
Securities in accordance herewith, the Underwriter will receive good, valid and marketable title to
the Securities, free and clear of all security interests, mortgages, pledges, liens, encumbrances,
claims and equities. If certificates are to be used to evidence the Securities, the form of
certificate will be in due and proper form and will comply, in all material respects, with all
applicable legal requirements. No shares of common or preferred stock of the Company are reserved
for any purpose other than (i) Securities to be issued pursuant to this Agreement, (ii) the Common
Stock to be issued in exchange for limited partnership units of the Operating Partnership
outstanding as of the date hereof or (iii) (A) the Common Stock available for future issuance under
the Company’s 1997 Stock Incentive Plan, 2001 Stock Incentive Plan, 2009 Stock Incentive Plan and
2011 Stock Incentive Plan, (B)
- 10 -
the Common Stock issuable in respect of unvested restricted stock units or stock options
outstanding as of the date hereof, or (C) the Common Stock issuable in connection with the exchange
of the Operating Partnership’s 4.625% Exchangeable Senior Notes due 2011;
(k) (i) The partnership agreement of the Operating Partnership is duly authorized, executed
and delivered by the Company, as general partner and a limited partner, (ii) the partnership
agreement of each Partnership Subsidiary that is a limited partnership is duly authorized, validly
executed and delivered by each partner thereto and (iii) the limited liability company agreement of
each Partnership Subsidiary that is a limited liability company is duly authorized, validly
executed and delivered by each member party thereto, and, in each case (assuming in the case of the
Operating Partnership the due authorization, execution and delivery of the partnership agreement by
each limited partner other than the Company) each such partnership agreement or limited liability
company agreement will be a valid, legally binding and enforceable in accordance with its terms
immediately following the Closing Date subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefor may be brought. All of the issued
and outstanding shares of capital stock of the Company and each Corporate Subsidiary, all of the
outstanding units of general, limited and/or preferred partnership interests or membership
interests of the Operating Partnership and each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid and non-assessable; and (except as described in the
Prospectus) will be owned directly or indirectly (except in the case of the Company) by the Company
or the Operating Partnership, as the case may be, free and clear of all security interests, liens
and encumbrances (except for pledges in connection with the loan agreements of the Company, the
Operating Partnership and the Subsidiaries), and all of the partnership interests or membership
interests in each Partnership Subsidiary will have been duly authorized and are validly issued,
fully paid, and (except as described in the Prospectus) will be owned directly or indirectly by the
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, the
Operating Partnership and the Subsidiaries);
(l) The financial statements, supporting schedules and related notes included in, or
incorporated by reference in, the Registration Statement, the Applicable Time Information and the
Prospectus comply in all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and present fairly the consolidated financial condition of the entity
or entities or group presented or included therein, as of the respective dates thereof, and its
consolidated results of operations and cash flows for the respective periods covered thereby, are
all in conformity with generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the Prospectus. The
financial information and data included in, or incorporated by reference in, the Registration
Statement, the Applicable Time Information and the Prospectus present fairly the information
included or incorporated by reference therein and have been prepared on a basis consistent, except
as may be noted therein, with that of the financial statements, schedules and notes included in, or
incorporated by reference in, the Registration Statement, the Applicable Time Information and the
Prospectus and the books and records of the respective entity or entities or group presented or
included therein. Except as otherwise noted in the Registration Statement, the Applicable Time
Information and the Prospectus, pro forma and/or as adjusted financial information included in, or
incorporated by reference in, the Registration Statement, Applicable Time Information and the
Prospectus has been prepared in accordance with the applicable requirements of the Securities Act
and the American Institute of Certified Public Accountants (“AICPA”) guidelines with
respect to pro forma and as adjusted financial information, and includes all adjustments necessary
to present fairly the pro forma and/or as adjusted financial condition of the entity or entities or
group presented or included therein at the respective dates indicated and the results of operations
and cash flows for the respective periods specified.
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The Company’s and the Operating Partnership’s respective ratio of combined fixed charges and
preferred stock dividends to earnings included in the Prospectus and in Exhibit 12.1 to the
Registration Statement has been calculated in compliance with Item 503(d) of Regulation S-K of the
Commission. No other financial statements (or schedules) of the Company, the Operating Partnership
and the Partnership Subsidiaries or any predecessor of the Company and/or the Operating Partnership
and the Partnership Subsidiaries are required by the Securities Act or the Exchange Act to be
included in the Registration Statement, the Applicable Time Information or the Prospectus.
PricewaterhouseCoopers LLP (the “Accountants”) who have reported on such financial
statements, schedules and related notes, are independent registered public accountants with respect
to the Company, the Operating Partnership and the Partnership Subsidiaries with the applicable
rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board
(United States) (“PCAOB”) and as required by the Securities Act, and there have been no
disagreements with any accountants or “reportable events” (as defined in Item 304 of Regulation S-K
promulgated by the Commission) required to be disclosed in the Prospectus or elsewhere pursuant to
such Item 304 which have not been so disclosed;
(m) Subsequent to the respective dates as of which information is given in the Registration
Statement, the Applicable Time Information and the Prospectus and prior to the Closing Date, (i)
there has not been and will not have been, except as set forth in or contemplated by the
Registration Statement, the Applicable Time Information, the Prospectus and this Agreement, any
change in the capitalization, long term or short term debt or in the capital stock or equity of
each of the Company, the Operating Partnership or any of the Subsidiaries which would be material
to the Company, the Operating Partnership and the Subsidiaries considered as one enterprise
(anything which would be material to the Operating Partnership, the Company and the Subsidiaries,
considered as one enterprise, being hereinafter referred to as “Material”), (ii) except as
described in the Registration Statement, the Applicable Time Information or the Prospectus, neither
the Operating Partnership, the Company nor any of the Subsidiaries has incurred nor will any of
them incur any liabilities or obligations, direct or contingent, which would be Material, nor has
any of them entered into nor will any of them enter into any transactions, other than pursuant to
this Agreement and the transactions referred to herein or as contemplated in the Registration
Statement, the Applicable Time Information, the Prospectus and this Agreement, which would be
Material, (iii) there has not been any change or development resulting in a Material Adverse
Effect, (iv) except for regular quarterly distributions on the Company’s shares of Common Stock,
and the dividends on, and any distributions on redemption of, the shares of the Company’s (a)
6.236% Series F Flexible Cumulative Redeemable Preferred Stock, (b) 7.236% Series G Flexible
Cumulative Redeemable Preferred Stock, (c) Series J Cumulative Redeemable Preferred Stock, or
(d) Series K Cumulative Redeemable Preferred Stock, the Company has not paid or declared
and will not pay or declare any dividends or other distributions of any kind on any class of its
capital stock, and (v) except for distributions in connection with regular quarterly distributions
on partnership units, the Operating Partnership has not paid any distributions of any kind on its
partnership units and (vi) neither the Company, the Operating Partnership nor their subsidiaries
have any material contingent obligation that is not disclosed in the Registration Statement, the
Prospectus or the Applicable Time Information;
(n) None of the Company, the Operating Partnership or any of the Subsidiaries is, or as of the
Closing Date will be, required to be registered under the Investment Company Act of 1940, as
amended (the “1940 Act”);
(o) To the knowledge of the Company or the Operating Partnership, after due inquiry, except as
set forth in the Registration Statement, the Applicable Time Information and the Prospectus, there
are no actions, suits, proceedings, investigations or inquiries, pending or, after due inquiry,
threatened against or affecting the Operating Partnership, the Company or any of the Subsidiaries
or any of their respective officers or directors in their capacity as such or of which any of their
respective properties or assets or any Property is the subject or bound, before or by any Federal
or state court,
- 12 -
commission, regulatory body, administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling, decision or finding would reasonably be expected to have a
Material Adverse Effect;
(p) The Company, the Operating Partnership and each of the Subsidiaries (i) has, and at the
Closing Date will have, (A) all governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to carry on its business as contemplated in the Registration
Statement, the Applicable Time Information or the Prospectus and are in material compliance with
such, and (B) complied in all material respects with all laws, regulations and orders applicable to
it or its business and (ii) are not, and at the Closing Date will not be, in breach of or default
in the performance or observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture,
note agreement, lease, contract, joint venture or partnership agreement or other agreement or
instrument (collectively, a “Contract or Other Agreement”) or under any applicable law,
rule, order, administrative regulation or administrative or court decree to which it is a party or
by which any of its other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in the aggregate, have a
Material Adverse Effect. To the knowledge of the Operating Partnership, the Company and each of
the Subsidiaries, after due inquiry, no other party under any Material contract or other agreement
to which it is a party is in default thereunder, except where such default will not have a Material
Adverse Effect. None of the Operating Partnership, the Company or any of the Subsidiaries is, nor
at any Closing Date will any of them be, in violation of any provision of its articles of
incorporation, by-laws, certificate of limited partnership, partnership agreement or other
organizational document, as the case may be;
(q) No Material consent, approval, authorization or order of, or any filing or declaration
with, any court or governmental agency or body or any other entity is required in connection with
the offering, issuance or sale of the Securities hereunder except such as have been obtained under
the Securities Act, the Exchange Act and such as may be required under state securities, Blue Sky
or real estate syndication laws or the by-laws, the corporate financing rules or the conflict of
interest rules of the Financial Industry Regulatory Authority (“FINRA”) in connection with
the purchase and distribution by the Underwriter of the Securities or such as have been received
prior to the date of this Agreement, and except for the filing of this Agreement with the
Commission as an exhibit to a Form 8-K, which the Company agrees to make in a timely manner;
(r) 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, to the extent a party thereto,
constitutes a valid and binding agreement of the Company and the Operating Partnership, and
assuming due authorization, execution and delivery by the Underwriter, and is enforceable against
the Operating Partnership in accordance with the terms hereof and thereof, subject to (i) the
effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether enforcement is considered in
a proceeding in equity or at law, and the discretion of the court before which any proceeding
therefor may be brought. The execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, and compliance by each of the Company, the
Operating Partnership and the Subsidiaries with its obligations hereunder to the extent each is a
party thereto, will not result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets or properties of the Operating Partnership, the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the acceleration of any obligation under, (a)
the certificate of
- 13 -
incorporation, by-laws, certificate of limited partnership, partnership
agreement or other organizational
documents of the Operating Partnership, the Company or any of the Subsidiaries, (b) any
Contract or Other Agreement to which the Company, the Operating Partnership or any of the
Subsidiaries is a party or by which the Company, the Operating Partnership or any of the
Subsidiaries or any of their assets or properties are bound or affected, or violate or conflict
with (c) any judgment, ruling, decree, order, statute, rule or regulation of any court or other
governmental agency (foreign or domestic) or body applicable to the business or properties of the
Operating Partnership, the Company or any of the Subsidiaries or to the Properties, in each case
(other than with respect to subclause (a) of this sentence as it applies to the Company, the
Operating Partnership and their significant subsidiaries (as defined in Section 6(h)) except for
liens, charges, encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not have a Material Adverse
Effect;
(s) As of the Closing Date, the Company, the Operating Partnership and each of the
Subsidiaries will have good and marketable title to all properties and assets described in the
Registration Statement, the Applicable Time Information and the Prospectus as owned by it, free and
clear of all liens, encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement, the Applicable Time Information or the Prospectus, or such
as secure the loan facilities of the Operating Partnership, the Company and the Subsidiaries, or
would not result in a Material Adverse Effect;
(t) The Company is subject to the reporting requirements of either Section 13 or Section 15(d)
of the Exchange Act and files reports with the Commission on XXXXX;
(u) To the knowledge of the Company: (i) no lessee of any portion of the Properties is in
default under any of the leases governing such Properties and there is no event which, but for the
passage of time or the giving of notice, or both, would constitute a default under any of such
leases, except in each case such defaults that would not 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;
(v) The Operating Partnership, the Company and the Partnership Subsidiaries have property,
title, casualty and liability insurance in favor of the Operating Partnership, the Company or the
Partnership Subsidiaries with respect to each of the Properties, in an amount and on such terms as
is reasonable and customary for businesses of the type conducted by the Operating Partnership, the
Company and the Partnership Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks;
(w) Except as disclosed in the Registration Statement, the Applicable Time Information and the
Prospectus, and except for activities, conditions, circumstances or matters that would not have a
Material Adverse Effect, (i) to the knowledge of the Company and the Subsidiaries, after due
inquiry, the operations of the Operating Partnership, the Company and the Subsidiaries are in
compliance with all Environmental Laws (as defined below) and all requirements of applicable
permits, licenses, approvals and other authorizations issued pursuant to Environmental Laws; (ii)
to the knowledge of the Operating Partnership, the Company and the Subsidiaries, after due inquiry,
none of the Operating Partnership, the Company or the Subsidiaries has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance (as defined below) into the Environment
(as defined below) on, in, under or from any Property, and no condition exists on, in, under or
adjacent to any Property that could reasonably be
- 14 -
expected to result in the incurrence of
liabilities under, or any violations of, any Environmental Law or give rise to the imposition of any Lien (as defined below), under any Environmental Law; (iii)
none of the Operating Partnership, the Company or the Subsidiaries has received any written notice
of a claim under or pursuant to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (iv) none of the Operating Partnership,
the Company or the Subsidiaries has actual knowledge of, or received any written notice from any
Governmental Authority (as defined below) claiming, any violation of any Environmental Law or a
determination to undertake and/or request the investigation, remediation, clean-up or removal of
any Hazardous Substance released into the Environment on, in, under or from any Property; and (v)
no Property is included or, to the knowledge of the Operating Partnership, the Company or the
Subsidiaries, after due inquiry, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States Environmental Protection Agency (the
“EPA”), or included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the Operating Partnership,
the Company or the Subsidiaries has actual knowledge that any Property has otherwise been
identified in a published writing by the EPA as a potential CERCLA removal, remedial or response
site or, to the knowledge of the Company and its Subsidiaries, is included on any similar list of
potentially contaminated sites pursuant to any other Environmental Law;
As used herein, “Hazardous Substance” shall include any hazardous substance,
hazardous waste, toxic substance, pollutant or hazardous material, including, without
limitation, oil, petroleum or any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, 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. § 172.101, or in the EPA’s List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 302); “Environment” shall mean any surface
water, drinking water, ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor and outdoor air; “Environmental
Law” shall mean the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. § 9601 et seq.) (“CERCLA”), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. § 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. § 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. § 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. § 2601, et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. § 651, et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801, et seq.), and all
other federal, state and local laws, ordinances, regulations, rules and orders relating to
the protection of the environment or of human health from environmental effects;
“Governmental Authority” shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement or enforce any
Environmental Law; “Lien” shall mean, with respect to any Property, any mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such Property; and
“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation, underground storage tanks) or
other receptacles containing or previously containing and containing a residue of any
Hazardous Substance.
None of the environmental consultants which prepared environmental and asbestos
inspection reports with respect to any of the Properties was employed for such purpose on a
contingent basis or has any substantial interest in the Operating Partnership, the Company
or any
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of the Subsidiaries, and none of them nor any of their directors, officers or
employees is connected with the Operating Partnership, the Company or any of the Subsidiaries as a
promoter, selling agent, voting trustee, director, officer or employee.
(x) The Company, the Operating Partnership and the Subsidiaries are organized and operate in a
manner so that the Company qualifies as a real estate investment trust (“REIT”) under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”) and
the Company has elected to be taxed as a REIT under the Code commencing with the taxable year ended
December 31, 1994. The Company, the Operating Partnership and the Subsidiaries intend to continue
to be organized and operate so that the Company shall qualify as a REIT for the foreseeable future,
unless the Company’s board of directors determines that it is no longer in the best interests of
the Company to be so qualified;
(y) (i) Each employee benefit plan, within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), for which the Company or any
member of its “Controlled Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Code) would have any liability
(each, a “Plan”) has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Code, except for noncompliance that could not reasonably be expected to result in material
liability to the Company or its subsidiaries; (ii) no prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
excluding transactions effected pursuant to a statutory or administrative exemption that could
reasonably be expected to result in a material liability to the Company or its subsidiaries; (iii)
for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA, the minimum funding standard of Section 412 of the Code or Section 302 of ERISA, as
applicable, has been satisfied (without taking into account any waiver thereof or extension of any
amortization period) and is reasonably expected to be satisfied in the future (without taking into
account any waiver thereof or extension of any amortization period); (iv) the fair market value of
the assets of each Plan equal the present value of all benefits accrued under such Plan; (v) no
“reportable event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that either has resulted, or could reasonably be expected to result, in material
liability to the Company or its subsidiaries; (vi) neither the Company nor any member of the
Controlled Group has incurred, nor reasonably expects to incur, any liability under Title IV of
ERISA (other than contributions to the Plan or premiums to the PBGC, in the ordinary course and
without default) in respect of a Plan (including a “multiemployer plan”, within the meaning of
Section 4001(a)(3) of ERISA); and (vii) there is no pending audit or investigation by the Internal
Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any
other governmental agency or any foreign regulatory agency with respect to any Plan that could
reasonably be expected to result in material liability to the Company or its subsidiaries;
(z) Neither the Company nor any member of its Controlled Group maintains, sponsors,
contributes to, or has had any liability with respect to an employee pension benefit plan subject
to the provisions of Title IV of ERISA;
(aa) There is no material document or contract of a character required to be described or
referred to in the Registration Statement, the Applicable Time Information or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or filed as required
therein, except for the filing of this Agreement with the Commission as an exhibit to a Form 8-K,
which the Company agrees to make in a timely manner, and the descriptions thereof or references
thereto in the Registration Statement, the Applicable Time Information or the Prospectus are
accurate in all material respects;
- 16 -
(bb) None of the Operating Partnership, the Company or any of the Subsidiaries is involved in
any labor dispute nor, to the knowledge of the Operating Partnership, the Company or the
Subsidiaries, after due inquiry, is any such dispute threatened which would be Material;
(cc) The Operating Partnership, the Company and the Subsidiaries own, or are licensed or
otherwise have the full exclusive right to use, all material trademarks and trade names which are
used in or necessary for the conduct of their respective businesses as described in the Prospectus.
To the knowledge of the Company or the Operating Partnership, no claims have been asserted by any
person to the use of any such trademarks or trade names or challenging or questioning the validity
or effectiveness of any such trademark or trade name. The use, in connection with the business and
operations of the Operating Partnership, the Company and the Subsidiaries, of such trademarks and
trade names does not, to the Company’s or the Operating Partnership’s knowledge, infringe on the
rights of any person;
(dd) Each of the Operating Partnership, the Company and the Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been required to be filed (except
in any case in which the failure to so file would not result in a Material Adverse Effect) and has
paid all taxes required to be paid and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing would otherwise be delinquent, except, in all cases, for any
such tax, assessment, fine or penalty that is being contested in good faith and except in any case
in which the failure to so pay would not result in a Material Adverse Effect;
(ee) The Operating Partnership and each of the Partnership Subsidiaries is properly treated as
a partnership for U.S. federal income tax purposes and not as a “publicly traded partnership”
taxable as a corporation for U.S. federal income tax purposes;
(ff) No relationship, direct or indirect, exists between or among the Company, the Operating
Partnership or the Subsidiaries on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company, the Operating Partnership or the Subsidiaries on the other
hand, which is required by the Securities Act to be described in the Registration Statement and the
Prospectus which is not so described in such documents and in the Applicable Time Information;
(gg) The Company has not taken and will not take, directly or indirectly, any action designed
to, or that might be reasonably expected to, cause or result in stabilization or manipulation of
the price of the Securities, and the Company and the Operating Partnership have not distributed and
have agreed not to distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than the Prospectus, any preliminary prospectus filed
with the Commission or other material permitted by the Securities Act (which were disclosed to you
and your counsel);
(hh) The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets, financial and corporate books and records is
permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(ii) Any certificate or other document signed by any officer or authorized representative of
the Operating Partnership, the Company or any Subsidiary, and delivered to the Underwriter or to
counsel for the Underwriter in connection with the sale of the Securities shall be deemed a
representation
- 17 -
and warranty by such entity or person, as the case may be, to the Underwriter as to the
matters covered thereby;
(jj) The Registration Statement has been declared effective by the Commission under the
Securities Act; no stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceeding for that purpose has been instituted, or to the
knowledge of the Company or the Operating Partnership, threatened by the Commission or by the state
securities authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus or any preliminary prospectus has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the Commission or by the state
securities authority of any jurisdiction;
(kk) Except for contracts, agreements or understandings entered into in connection with the
transfer of properties or other assets to the Operating Partnership, there are no contracts,
agreements or understandings between the Company and any person granting such person the right to
require the Company to include any Common Stock owned or to be owned by such person in the offering
contemplated by this Agreement;
(ll) The Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15 under the Exchange Act), which (i) are designed to ensure that
material information relating to the Company, including its consolidated subsidiaries, is made
known to each of the Company’s principal executive officer and principal financial officer by
others within those entities, particularly during the period which the Company’s annual report on
Form 10-K for the year ended December 31, 2010 was prepared; (ii) have been evaluated for
effectiveness as of the date of the filing of the Prospectus Supplement with the Commission; and
(iii) are effective in all material respects to perform the functions for which they were
established, except where a failure to be so effective will not have a Material Adverse Effect;
(mm) Based on its evaluation of its internal controls over financial reporting at December 31,
2010, the Company, the Operating Partnership and their subsidiaries are not aware of (i) any
significant deficiency or material weakness in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting. Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no changes in internal controls over financial
reporting of the Company, the Operating Partnership or their subsidiaries or in other factors that
has materially affected, or is reasonably likely to materially affect, the Company, the Operating
Partnership or their subsidiaries’ internal control over financial reporting;
(nn) There is and has been no failure on the part of the Operating Partnership or any of the
Operating Partnership’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes Oxley Act”), including Section 402 related to loans and Sections
302 and 906 related to certifications;
(oo) Neither the Company, the Operating Partnership, nor any of the Subsidiaries nor, to the
knowledge of the Company and the Operating Partnership, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company and the Operating Partnership or
any of the Subsidiaries has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or employee from corporate
funds; (iii) violated or is in
- 18 -
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any
bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
(pp) The operations of the Company, the Operating Partnership and the Subsidiaries are and
have been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Subsidiaries with respect to the Money Laundering Laws is
pending or, to the knowledge of the Company and the Operating Partnership, threatened;
(qq) None of the Company, the Operating Partnership, any of the Subsidiaries or, to the
knowledge of the Company and the Operating Partnership, any director, officer, agent, employee or
affiliate of the Company or any of the Subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not, directly or indirectly, use the proceeds of the
offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC;
(rr) No Subsidiary of the Company is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying
to the Company any loans or advances to such Subsidiary from the Company or from transferring any
of such subsidiary’s properties or assets to the Company or any other Subsidiary of the Company;
(ss) Neither the Company, the Operating Partnership, nor any of the Subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company, the Operating Partnership or any of the
Subsidiaries or the Underwriter for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Securities;
(tt) Nothing has come to the attention of the Company or the Operating Partnership that has
caused the Company or the Operating Partnership to believe that the statistical and market-related
data included in the Registration Statement, the Applicable Time Information and the Prospectus is
not based on or derived from sources that are reliable and accurate in all material respects;
(uu) The Common Stock is an “actively-traded security” excepted from the requirements of Rule
101 of Regulation M under the Exchange Act by Rule 101(c)(1) thereunder;
(vv) With respect to the stock options (the “Stock Options”) granted pursuant to the
stock-based compensation plans of the Company, the Operating Partnership and their subsidiaries
(the “Company Stock Plans”), (i) each Stock Option intended to qualify as an “incentive
stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Stock Option was
duly authorized no later than the date on which the grant of such Stock Option was by its terms to
be effective (the “Grant Date”) by all necessary corporate action, including, as
applicable, approval by the board of directors of the Company (or a duly constituted and authorized
committee thereof) and any required stockholder approval by the necessary number of votes or
written consents, and the award agreement governing such grant (if any) was duly executed and
delivered by each party thereto, (iii) each such grant was made in accordance
- 19 -
with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and
regulatory rules or requirements, including the rules of the NYSE and any other exchange on which
Company securities are traded, and (iv) each such grant was properly accounted for in accordance
with generally accepted accounting principles in the financial statements (including the related
notes) of the Company and, if required, disclosed in the Company’s filings with the Commission in
accordance with the Exchange Act and all other applicable laws. The Company has not knowingly
granted, and there is no and has been no policy or practice of the Company of granting, Stock
Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other
public announcement of material information regarding the Company or its subsidiaries or their
results of operations or prospects;
(ww) No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained or incorporated by reference in the Registration
Statement, the Applicable Time Information or the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith; and
(xx) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the
Company has taken no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common Stock from the
NYSE, nor has the Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing. The outstanding shares of the Common Stock
have been approved for listing and on or before the Closing Date, the Securities being sold
hereunder shall have been approved for listing, subject only to official notice of issuance, on the
NYSE.
7. The Company and the Operating Partnership, jointly and severally, agree to indemnify,
defend and hold harmless the Underwriter, its partners, directors, officers and members, any person
who controls the Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, and any “affiliate” (within the meaning of Rule 405 under the
Securities Act) of the Underwriter, and the successors and assigns of all of the foregoing persons,
from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted), that arise out of, or are based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement or caused by
any omission or alleged omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or the Applicable Time Information, or
caused by any omission or alleged omission to state therein a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities are caused
by any untrue statement or omission or alleged untrue statement or omission made in reliance upon
and in conformity with information relating to the Underwriter furnished to the Company or the
Operating Partnership in writing by the Underwriter through you expressly for use therein.
The Underwriter agrees to indemnify, defend and hold harmless the Company and the Operating
Partnership, and their respective officers and directors and any person who controls the Company or
the Operating Partnership within the meaning of Section 15 of the Securities Act and Section 20(a)
of the Exchange Act, and the successors and assigns of all of the foregoing persons, to the same
extent as the foregoing indemnity from the Company and the Operating Partnership to the
Underwriter, but only with respect to any losses, claims, damages or liabilities that arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to the Underwriter furnished to the
Company in writing by the Underwriter through the Underwriter expressly for use in the Registration
Statement, the Prospectus (or any
- 20 -
amendment or supplement thereto), any Issuer Free Writing Prospectus or the Applicable Time
Information. For purposes of this Section 7 and Sections 8(b), (f) and (g) the only written
information furnished by the Underwriter to the Company expressly for use in the Registration
Statement and the Prospectus Supplement is the information contained in the selected paragraphs
attached hereto as Exhibit B that will be included in the “Underwriting” section of the
Prospectus.
If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnity may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses according to a final non-appealable judgment) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying
Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory
to the Indemnified Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm for the Underwriter and such control persons of the Underwriter shall be
designated in writing by the Underwriter and any such separate firm for the Company, the Operating
Partnership, their directors, their officers and such control persons of the Company and the
Operating Partnership or authorized representatives shall be designated in writing by the Company
or the Operating Partnership. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or judgment. If it is
ultimately determined that an Indemnified Person was not entitled to indemnification hereunder,
such Indemnified Person shall be responsible for repaying or reimbursing the Indemnifying Person
for any amounts so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by or behalf of an
Indemnified Person. In no event shall any Indemnified Person have any liability or responsibility
in respect of the settlement or compromise of, or consent to the entry of any judgment with respect
to any pending or threatened action or claim effected without its prior written consent.
- 21 -
If the indemnification provided for in the first and second paragraphs of this Section 7 is
unavailable or insufficient to hold harmless an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or
liabilities (a) in such proportion as is appropriate to reflect the relative benefits received by
the Company and the Operating Partnership on the one hand and the Underwriter on the other hand
from the offering of the Securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (a) above but also the relative fault of the Company and the
Operating Partnership on the one hand and the Underwriter on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received by the Company and the
Operating Partnership on the one hand and the Underwriter on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the Operating Partnership and the total
underwriting discounts and the commissions received by the Underwriter bear to the aggregate public
offering price of the Securities. The relative fault of the Company and the Operating Partnership
on the one hand and the Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company and the
Operating Partnership on the one hand or by the Underwriter on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Operating Partnership and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Person as
a result of the losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall the
Underwriter be required to contribute any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that the Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 7 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any Indemnified Person at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and the representations,
warranties and covenants of the Company and the Operating Partnership set forth in this Agreement
shall remain operative and in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of the Underwriter or any person controlling
the Underwriter or by or on behalf of the Company, its officers or directors or any other person
controlling the Company or the Operating Partnership and (c) acceptance of and payment for any of
the Securities.
8. The obligations of the Underwriter hereunder shall be subject to the performance by the
Company and the Operating Partnership of their respective obligations hereunder and to satisfaction
of each of the following conditions:
- 22 -
(a) the Registration Statement, including any Rule 462(b) Registration Statement, shall have
been filed by the Company and the Operating Partnership with the Commission not earlier than three
years prior to the date hereof and shall have become effective under the Securities Act; the
Statutory Prospectus and each Issuer Free Writing Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) (in the case of such Issuer Free Writing Prospectus, to the
extent required under Rule 433 of the Securities Act) within the applicable time period prescribed
for such filing by such Rule; no stop order suspending the effectiveness of the Registration
Statement or the Statutory Prospectus shall be in effect, and no proceedings for such purpose shall
have been commenced or shall be pending before or threatened by the Commission to the knowledge,
after due inquiry, of the Company or the Operating Partnership; no stop order suspending the
effectiveness of the Registration Statement or the Statutory Prospectus shall be in effect and no
proceedings for such purpose shall have been commenced or shall be pending before or threatened by
the state securities authority of any jurisdiction, to the knowledge of the Company or the
Operating Partnership; and all requests for additional information on the part of the Commission
shall have been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the Operating Partnership
contained in this Agreement shall be true and correct on the Closing Date, with the same force and
effect as if made on and as of such Closing Date, and each of the Company and the Operating
Partnership shall have complied with all agreements and all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the Company or the Operating
Partnership by any “nationally recognized statistical rating organization,” as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the Registration Statement
and the Prospectus there shall not have been any material change in the capital stock, partners’
equity or long-term debt of the Company, the Operating Partnership or any of the Subsidiaries on a
consolidated basis, except as described or contemplated in the Prospectus or the Applicable Time
Information, or any material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects, management, properties,
financial position, stockholders’ equity, partners’ equity or results of operations of the Company,
the Operating Partnership and the Subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus or the Applicable Time Information, the effect of which in the
judgment of Underwriter makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus or
the Applicable Time Information; and other than as set forth in the Prospectus, no proceedings
shall be pending or, to the knowledge of the Company or the Operating Partnership, after due
inquiry, threatened against the Operating Partnership or the Company or any Property before or by
any federal, state or other commission, board or administrative agency, where an unfavorable
decision, ruling or finding could reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a certificate signed by the Chief
Executive Officer of the Company and the Chief Financial Officer of the Company, in their
capacities as officers of the Company, on behalf of the Company for itself and as general partner
of the Operating Partnership, satisfactory to you to the effect set forth in subsections (a)
through (d) of this Section 8;
- 23 -
(f) you shall have received on the Closing Date, an opinion or opinions (satisfactory to you
and counsel for the Underwriter), dated as of such Closing Date, of Barack Xxxxxxxxxx Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel for the Company and the Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction listed on
Schedule III hereto.
(ii) The Operating Partnership and each of the Partnership Subsidiaries is
validly existing as a limited partnership or a limited liability company, as the
case may be, in good standing under the laws of its state of organization. The
Operating Partnership has the requisite limited partnership power and authority to
own, lease and operate its properties and other assets and to conduct the business
in which it is engaged and proposes to engage, in each case, as described in the
Prospectus, and the Operating Partnership has the requisite limited partnership
power to enter into and perform its obligations under this Agreement. The Operating
Partnership is duly qualified or registered as a foreign partnership and is in good
standing in each jurisdiction listed on Schedule III hereto.
(iii) To the knowledge of such counsel, other than stock options and restricted
stock units issued to employees or directors of the Company or the Operating
Partnership, the 4.625% Exchangeable Senior Notes due 2011 issued by the Operating
Partnership and units of the Operating Partnership exchangeable for Common Stock or
as otherwise described in the Prospectus or the Applicable Time Information, there
are no outstanding securities convertible into or exchangeable for any Common Stock
and no outstanding options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for Common Stock. To the knowledge of such counsel, all of the
outstanding partnership interests of the Operating Partnership and each of the
Partnership Subsidiaries have been duly authorized and validly issued.
(iv) To the knowledge of such counsel, none of the Company, the Operating
Partnership or the Subsidiaries is in violation of or default under its charter,
bylaws, certificate of limited partnership or partnership agreement, as the case may
be, and none of such entities is in default in the performance or observance of any
obligation, agreement, covenant or condition (other than any financial covenants,
upon which such counsel expresses no opinion) contained in (1) that certain
Sixth Amended and Restated Unsecured Revolving Credit and Term Loan Agreement, dated
as of October 22, 2010, among the Operating Partnership, the Company, JPMorgan Chase
Bank, N.A., and certain other banks (the “Loan Agreement”), as modified by
that certain Waiver to Sixth Amended and Restated Unsecured Revolving Credit and
Term Loan Agreement, dated as of April 21, 2011, among the Operating Partnership,
the Company, JPMorgan Chase Bank, N.A., and certain other banks (the
“Waiver,” and together with the Loan Agreement, the “Credit
Agreement”), or (2) any agreements and instruments filed as exhibits to the
Registration Statement, the Company’s and the Operating Partnership’s Annual Report
on Form 10-K for the year ended December 31, 2010 and the Company’s Current Reports
on Form 8-K filed with the Commission on March 1, 2011, March 8, 2011, April 22,
2011 and April 28, 2011 (the “Exhibit Filings”), in each case as amended, if
applicable, to which such entity is a party or by which such entity may be bound, or
to which any of the property or assets of such entity may be subject or by which
they may be bound (it being understood
- 24 -
that such counsel may assume compliance with the financial covenants contained
in any such document), except in each case for violations or defaults which in the
aggregate are not reasonably expected to have a Material Adverse Effect.
(v) This Agreement was duly and validly authorized, executed and delivered by
each of the Company and the Operating Partnership.
(vi) The Registration Statement has been declared effective under the
Securities Act, the Prospectus was filed with the Commission pursuant to Rule 424,
within the applicable time period prescribed by Rule 424, and, to such counsel’s
knowledge, no stop order suspending the effectiveness of the Registration Statement
or the Prospectus has been issued and no proceeding for that purpose is pending or
threatened by the Commission.
(vii) The execution and delivery of this Agreement, the issuance and sale of
the Securities, the performance by the Company and the Operating Partnership of
their respective obligations under this Agreement, and the consummation of the
transactions herein contemplated will not require, to such counsel’s knowledge, any
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such as may be required
under the Securities Act, the by-laws, corporate financing rules and the conflict of
interest rules of FINRA, the rules of the NYSE or state securities, Blue Sky or real
estate syndication laws in connection with the purchase and distribution of the
Securities by the Underwriter, or such as have been received prior to the date of
this letter) and did not and do not conflict with or constitute a breach or
violation of or default under: (1) the Credit Agreement; (2) any Exhibit Filing, in
each case as amended, if applicable, to which any such entity is a party or by which
it or any of them or any of their respective properties or other assets may be bound
or subject and of which such counsel is aware; (3) the certificate of limited
partnership or partnership agreement, as the case may be, of the Operating
Partnership, Securities, L.P. and the Financing Partnership or the articles of
incorporation or bylaws, as the case may be, of the Company, FIFC or FISC; (4) any
applicable law, rule or administrative regulation of the federal government (or
agency thereof) of the United States, or (5) any order or administrative or court
decree issued to or against, or concerning any or all of the Company, the Operating
Partnership and the Subsidiaries (it being understood that such counsel may assume
compliance with the financial covenants contained in any such document), except in
each case for conflicts, breaches, violations or defaults that in the aggregate are
not reasonably expected to have a Material Adverse Effect.
(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
Securities hereunder, except such as may be required under the Securities Act, the
by-laws, corporate financing rules and the conflict of interest rules of FINRA, the
rules of the NYSE 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, the Base
Prospectus, as of its date, and the Prospectus, as of the date of the Prospectus
Supplement (in each case, other than the financial statements, including the notes
and schedules thereto, and other financial data set forth or incorporated by
reference therein, statistical data set forth or incorporated by reference therein
that is found in or derived from the
- 25 -
internal accounting records of the Company as to which no opinion need be
rendered), complied as to form in all material respects with the applicable
requirements of the Securities Act and the Exchange Act.
(x) The instruments and actions required under this Agreement are sufficient to
convey to the Underwriter good and valid title to the Securities, free and clear of
all security interests, mortgages, pledges, liens, encumbrances, claims and equities
if the Underwriter acquires such Securities in good faith and without notice of any
such security interests, mortgages, pledges, liens, encumbrances, claims or
equities.
(xi) The information in the Prospectus Supplement and the Applicable Time
Information under “Certain U.S. Federal Income Tax Considerations,” and in the
Prospectus under “Certain U.S. Federal Income Tax Considerations” (as modified by
the information in the Prospectus Supplement), to the extent that it constitutes
statements of law, descriptions of statutes, rules or regulations, or summaries of
documents or legal conclusions, has been reviewed by us and is correct in all
material respects and presents fairly the information required to be disclosed
therein.
(xii) To such counsel’s knowledge, there is no document or contract of a
character required to be described or referred to in the Registration Statement, the
Base Prospectus, as of its date, and the Prospectus by the Securities Act other than
those described or referred to therein, and the descriptions thereof or references
thereto are accurate in all material respects; and to such counsel’s knowledge,
there is no document or contract required to be filed as an exhibit to the
Registration Statement which is not filed as required.
(xiii) The partnership agreement of each of the Operating Partnership,
Securities, L.P. and the Financing Partnership has been duly authorized, validly
executed and delivered by each of the Company and the Partnership Subsidiaries, to
the extent they are parties thereto, and is valid, legally binding and enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity
or at law).
(xiv) The Company and the Operating Partnership satisfied all conditions and
requirements for filing the Registration Statement on Form S-3 under the Securities
Act.
(xv) Neither the Company nor the Subsidiaries is required to be registered as
an investment company under the 0000 Xxx.
(xvi) Commencing with the Company’s taxable year ended December 31, 1994, the
Company has been organized and operated in conformity with the requirements for
qualification and taxation as a REIT under the Code, and the Company’s current and
proposed method of operation (as represented by the Company to such counsel in a
written certificate) will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
(xvii) To the knowledge of such counsel, there are no legal or governmental
proceedings pending or threatened against the Company, the Operating Partnership,
the
- 26 -
Partnership Subsidiaries, the Corporate Subsidiaries or the Additional
Subsidiaries that do, or are reasonably expected to, have a Material Adverse Effect.
In addition, Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP shall state, in a separate
letter, that they have participated in conferences with officers and other representatives of the
Company and the Operating Partnership, representatives of the independent registered public
accounting firm for the Company and representatives of the Underwriter at which the contents of the
Registration Statement, the Applicable Time Information and the Prospectus and related matters were
discussed. On the basis thereof, (relying to the extent such counsel deems appropriate upon the
opinions of officers and other representatives of the Company as to the materiality to the Company
of the matters discussed) but without independent verification by such counsel of, and without
passing upon or assuming any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Applicable Time Information 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, including the documents
incorporated therein by reference, at the time the Registration Statement became effective,
contained any untrue statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not misleading, (ii) the
Prospectus, as of its date or as of such Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading or (iii) the
Applicable Time Information, as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it being understood
that such counsel need express no comment with respect to the financial statements, including the
notes and schedules thereto, or any other financial or statistical data that is found in or derived
from the internal accounting records of the Company or the Operating Partnership, in each case as
set forth in or incorporated by reference into the Registration Statement, the Prospectus or the
Applicable Time Information).
In giving its opinion, such counsel may rely (i) as to all matters of fact, upon
representations, statements or certificates of public officials and statements of officers,
directors, partners, employees and representatives of and accountants for each of the Company and
its Subsidiaries, (ii) as to matters of Maryland law, on the opinion of McGuireWoods LLP,
Baltimore, Maryland, and (iii) as to the good standing and qualification of the Company and the
Operating Partnership to do business in any state or jurisdiction, upon certificates of appropriate
government officials and letters from Corporation Service Company, copies of which have been
furnished to you.
(g) You shall have received on the Closing Date, an opinion (satisfactory to you and counsel
for the Underwriter), dated as of such Closing Date, of McGuireWoods LLP, special Maryland counsel
for the Company, to the effect that:
(i) The Company and each of the Corporate Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Maryland.
(ii) The Company and each of the Corporate Subsidiaries has the 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 to
the extent described in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this Agreement.
- 27 -
(iii) The Company’s authorized capitalization consists of ten million
(10,000,000) shares of preferred stock, par value $0.01 per share, one hundred fifty
million (150,000,000) shares of common stock, par value $0.01 per share, and
sixty-five million (65,000,000) shares of excess stock, par value $0.01 per share.
Assuming (i) all of the issued and outstanding shares of capital stock of the
Company (the “Outstanding Shares”) have been issued in accordance with
previously issued written opinions of such counsel relating thereto and all
applicable resolutions, and (ii) receipt of adequate consideration in exchange
therefor, all of the Outstanding Shares have been duly authorized, are validly
issued, fully paid and nonassessable. All one hundred (100) shares of the common
stock of FISC subscribed for by the Company have been duly authorized and, assuming
receipt of the consideration as provided in that certain Written Consent to Action
of the Board of Directors Without a Meeting dated August 14, 1995 (and the Offering
Terms attached thereto as Exhibit C), are validly issued, fully paid and
nonassessable. All one million five hundred thousand (1,500,000) shares of the
9-1/2% Series A Cumulative Preferred Stock, $.01 par value per share, of FISC
subscribed for by the Company have been duly authorized and, assuming receipt of the
consideration as provided in those certain Minutes of Special Meeting of the Board
of Directors held on November 13, 1995 (and the Offering Terms attached thereto as
Exhibit C), are validly issued, fully paid and nonassessable. All one
thousand (1,000) shares of the common stock of FIIC subscribed for by the Company
have been duly authorized and, assuming receipt of the consideration as provided in
that certain Written Consent to Action of the Board of Directors Without a Meeting
dated March 13, 1996 (and the Offering Terms attached thereto as Exhibit C),
are validly issued, fully paid and nonassessable. All one hundred (100) shares of
the common stock of FIFC subscribed for by the Company have been duly authorized
and, assuming receipt of the consideration as provided in that certain Written
Consent to Action of the Board of the Directors Without a Meeting dated June 10,
1994 (and the Offering Terms attached thereto as Exhibit C), are validly
issued, fully paid and nonassessable. All one thousand (1,000) shares of the common
stock of FIMC subscribed for by the Company have been duly authorized and, assuming
receipt of the consideration as provided in that certain Written Consent to Action
of the Board of the Directors Without a Meeting dated December 14, 1995 (and the
Offering Terms attached thereto as Exhibit C), are validly issued, fully
paid and nonassessable. All one hundred (100) shares of the common stock of FIPC
subscribed for by the Company have been duly authorized and, assuming receipt of the
consideration as provided in that certain Written Consent to Action of the Board of
Directors Without a Meeting dated December 22, 1994 (and the Offering Terms attached
thereto as Exhibit C), are validly issued, fully paid and nonassessable.
All fifty (50) shares of the voting common stock of FIDSI subscribed for by the
Company have been duly authorized and, assuming receipt of the consideration as
provided in that certain Written Consent of the Board of Directors For Action In
Lieu of an Organizational Meeting dated as of May 21, 1996 (and the Subscription
Agreement of same date between the Company and FIDSI), are validly issued, fully
paid and nonassessable. All one hundred (100) shares of the voting common stock of
FIIP subscribed for by First Industrial Investment, Inc. (“FIII”) have been duly
authorized and, assuming receipt of the consideration as provided in that certain
Written Consent to Organizational Corporate Action by the Sole Director dated as of
August 19, 2009 (and the Pre-Incorporation Subscription Agreement of same date
between FIII and FIIP), are validly issued, fully paid and nonassessable. All one
hundred (100) shares of the common stock of FIHC subscribed for by the Company have
been duly authorized and, assuming receipt of the consideration as provided in that
certain Written Consent to Action of the Board of Directors Without a Meeting dated
June 7, 1995 (and the
- 28 -
Subscription Agreement attached thereto as Exhibit C), are validly
issued, fully paid and nonassessable.
(iv) The Securities have been duly authorized for issuance and sale to the
Underwriter pursuant to this Agreement and, when validly issued and delivered by the
Company pursuant to this Agreement against payment of the Purchase Price, will be
duly authorized, validly issued, fully paid and nonassessable. To the extent
Maryland law provides the basis for determination, the Underwriter is receiving
good, valid and marketable title to the Securities to be received by them free and
clear of all security interests, mortgages, pledges, liens, encumbrances, claims and
equities arising by or through the Company, provided that the Underwriter acquires
such Securities in good faith and without notice of any such security interests,
mortgages, pledges, liens, encumbrances, claims or equities. The issuance of the
Securities is not subject to any preemptive or other similar rights arising under
the Maryland General Corporation Law, the Company’s charter or bylaws, as amended to
date, or, to such counsel’s knowledge, any written agreement to which the Company is
a party.
(v) The terms of the Securities conform in all material respects to all
statements and descriptions related thereto contained in the Registration Statement
and the Prospectus.
(vi) The execution and delivery of this Agreement has been duly and validly
authorized by the Company on behalf of itself and the Operating Partnership.
(vii) The execution and delivery of this Agreement, the performance of the
obligations and the consummation of the transactions set forth herein by the Company
will not require, to such counsel’s knowledge, any consent, approval, authorization
or other order of any Maryland court, regulatory body, administrative agency or
other Maryland governmental body (except as such may be required under the
Securities Act or other federal or state securities, blue sky or real estate
syndication laws and regulations) and did not and do not conflict with or constitute
a breach or a violation of or default under: (1) the charter or bylaws, as the case
may be, of the Company; or (2) except with respect to Maryland securities or blue
sky laws or real estate syndication laws and regulations, any applicable Maryland
law, rule or administrative regulation or any Maryland order or administrative or
court decree known to such counsel, except in each case for conflicts, breaches,
violations or defaults that in the aggregate would not have a Material Adverse
Effect on the issuance and sale of the Securities or the performance by the Company
of the obligations set forth in this Agreement.
(viii) The information in the Prospectus under “Certain Provisions of Maryland
Law and the Company’s Charter and Bylaws” and “Restrictions on Transfer of Capital
Stock”, and “Description of Common Stock” and in Part II of the Registration
Statement under Item 15, to the extent that such information 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 disclosed
therein.
(ix) The Company was authorized, as general partner of the Operating
Partnership, to amend and restate the Operating Partnership’s Eleventh Amended and
Restated Limited Partnership Agreement, as amended to the date hereof (the
“Operating
- 29 -
Partnership Agreement”) by and among the Company and those limited
partners identified in the Operating Partnership Agreement.
(x) FISC was authorized by written consent of its board of directors dated
October 19, 1995 to enter into that certain Limited Partnership Agreement of First
Industrial Securities, L.P.
(xi) FIIC was authorized by written consent of its board of directors dated
October 18, 1996 to enter into that certain Limited Partnership Agreement of First
Industrial Indianapolis, L.P.
(xii) FIFC was authorized by written consent of its sole director dated June
22, 1994 to enter into that certain Limited Partnership Agreement by and between
FIFC and the Operating Partnership.
(xiii) FIMC was authorized by written consent of its board of directors dated
December 27, 1995 to enter into that certain Limited Partnership Agreement by and
between FIMC and the Operating Partnership.
(xiv) FIPC was authorized by written consent of its board of directors dated
January 26, 1996 to enter into that certain Limited Partnership Agreement of First
Industrial Pennsylvania, L.P. (the “Pennsylvania Partnership Agreement”) and
by written consent of its board of directors dated November 17, 1995 to enter into
that certain First Amendment to the Pennsylvania Partnership Agreement.
(xv) FIDSI was authorized by written consent of its board of directors dated
May 21, 1996 to enter into that certain Limited Partnership Agreement of First
Industrial Development Services, L.P.
(xvi) FIHC was authorized by written consent of its board of directors dated
October 18, 1996 to enter into that certain Limited Partnership Agreement of First
Industrial Harrisburg, L.P.
(h) On the date hereof, the Accountants shall have furnished to the Underwriter a letter,
dated the date of its delivery, addressed to the Underwriter and in form and substance satisfactory
to the Underwriter (and to its counsel), confirming that they are independent registered public
accountants with respect to the Company, the Operating Partnership and the Subsidiaries as required
by the Securities Act and with respect to the financial and other statistical and numerical
information contained in the Registration Statement and the Prospectus and containing statements
and information of the type ordinarily included in accountants’ “comfort letters” as set forth in
the AICPA’s Statement on Auditing Standards 72. At the Closing Date, the Accountants shall have
furnished to the Underwriter a letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in the letter from it, that nothing
has come to its attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to such Closing Date,
which would require any change in its letter dated the date hereof if it were required to be dated
and delivered at such Closing Date.
(i) You shall have received on the Closing Date an opinion, dated as of such Closing Date, of
Xxxxxxxx Chance US LLP (“CC”), counsel for the Underwriter, as to the matters referred to
in clauses (ii) (with respect to the Operating Partnership and the first sentence only), (v), (vi),
(ix) and (x) of Section 8(f), and to clause (i) (with respect to the Company only) of Section 8(g)
and, in addition, CC
- 30 -
shall make statements similar to those contained in the paragraph following Section 8(f)(xvii)
hereto and shall be entitled to rely on those persons described in the second paragraph following
Section 8(f)(xvii) hereto with respect to the matters described therein.
In giving its opinion, such counsel may rely (A) as to matters of Maryland law, on the opinion
of McGuireWoods LLP, Baltimore, Maryland, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriter and (B) 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 governmental officials or opinions of
counsel in such jurisdictions.
(j) If the Registration Statement or an offering of Securities has been filed with FINRA for
review, FINRA shall not have raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(k) The Company, the Operating Partnership and the Subsidiaries shall not have failed at or
prior to the Closing Date to perform or comply with any of the agreements pursuant to Section 4
herein contained or required to be performed or complied with by the Company and the Operating
Partnership at or prior to such Closing Date.
(l) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date prevent the issuance or sale of the Securities; and no
injunction or order of any federal, state or foreign court shall have been issued that would, as of
such Closing Date prevent the issuance or sale of the Securities.
(m) The Underwriter shall have received on and as of the Closing Date satisfactory evidence of
the good standing of the Company, the Operating Partnership and the Subsidiaries in their
respective jurisdictions of organization and their good standing as foreign entities in such other
jurisdictions as the Underwriter may reasonably request, in each case in writing or any standard
form of telecommunication from the appropriate governmental authorities of such jurisdictions.
(n) The “lock-up” agreements, each substantially in the form of Exhibit A hereto,
between you and certain stockholders, officers and directors of the Company listed on Schedule
IV hereto relating to sales and certain other dispositions of shares of the Securities or
certain other securities, delivered to you on or before the Closing Date with effect as of the date
hereof, shall be full force and effect on the Closing Date.
(o) The Securities shall be approved for listing on the NYSE.
(p) You shall have received on the Closing Date a Company certificate, executed on behalf of
the Company by the Chief Financial Officer of the Company, mutually agreeable relating to the
Company’s financial reporting in each of the (i) Registration Statement; (ii) Annual Report on Form
10-K for the fiscal year ended December 31, 2010; (iii) Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2011; and (iv) definitive proxy statement on Schedule 14A.
(q) At the Closing Date, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities, as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Operating Partnership and
the Company in
- 31 -
connection with the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
Except to the extent the text of such is as set forth herein, the opinions and certificates
mentioned in this Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in all material respects satisfactory to you and to CC, counsel for the Underwriter.
9. Notwithstanding anything herein contained, this Agreement may be terminated in your
absolute discretion by notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date, (a) the Company and the Operating Partnership shall have
failed, refused or been unable, at or prior to the Closing Date, to perform any agreements on its
part to be performed hereunder, (b) any other conditions to the Underwriter’s obligations hereunder
are not fulfilled, (c) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the NYSE, the American Stock Exchange, FINRA, the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (d) trading of any
securities of or guaranteed by the Company and the Operating Partnership shall have been suspended
on any exchange or in any over-the-counter market, (e) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York State authorities;
(f) there shall have occurred any major disruption of settlements of securities or clearance
services in the United States; or (g) there shall have occurred any outbreak or escalation of
hostilities or act of terrorism involving the United States or any change in financial markets or
any calamity or crisis that, in the judgment of the Underwriter is material and adverse and which,
in the judgment of the Underwriter makes it impracticable or inadvisable to proceed with the offer,
sale or delivery of the Securities on the terms and in the manner contemplated, by this Agreement,
the Applicable Time Information, and the Prospectus.
10. [Reserved]
11. (a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Operating Partnership will pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, each
preliminary prospectus, any Issuer Free Writing Prospectus, the Applicable Time Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the fees and expenses of the Company’s counsel and independent accountants; (iv) the
fees and expenses incurred in connection with the registration or qualification of the Securities
under the state or foreign securities or blue sky laws of such jurisdictions as the Underwriter may
designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the
related fees and expenses of counsel for the Underwriter); (v) the costs and charges of any
transfer agent and any registrar; (vi) all expenses and application fees incurred in connection
with any filing with, and clearance of the offering by, FINRA, if any; (vii) all expenses incurred
by the Company in connection with any “road show” presentation to potential investors; and (viii)
all expenses and application fees related to the listing of the Securities on the NYSE.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriter or (iii) the Underwriter declines to
purchase the Securities for any reason permitted under this Agreement, the Company agrees to
reimburse the Underwriter for all out-of-pocket costs and expenses (including the fees and expenses
of its counsel) reasonably incurred by the Underwriter in connection with this Agreement and the
offering contemplated hereby.
- 32 -
12. In the event of termination of this Agreement, the provisions of Sections 7, 11 and 13
remain operative and in full force and effect.
13. The respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Operating Partnership and the Underwriter contained in this
Agreement or made by or on behalf of the Company, the Operating Partnership or the Underwriter
pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery
of and payment for the Securities and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the Company, the
Operating Partnership or the Underwriter.
14. This Agreement shall inure to the benefit of and be legally binding upon the Company, the
Operating Partnership, the Underwriter, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein contained. No
purchaser of Securities from the Underwriter shall be deemed to be a successor by reason merely of
such purchase.
15. All notices and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of telecommunication. Notices
to the Underwriter shall be given to UBS Securities LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 hereto, with a copy to Xxxxxxxx Chance US LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall be given to it at
First Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000,
Attention: Xxxx X. Xxxxxxx, Esq., with a copy to Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Will Xxxxxx, Esq.
16. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) The Underwriter has been retained solely to act as underwriter in connection with the sale
of the Company’s securities and that no fiduciary, advisory or agency relationship between the
Company and the Underwriter has been created in respect of any of the transactions contemplated by
this Agreement, irrespective of whether the Underwriter has advised or is advising the Company on
other matters;
(b) the price of the securities set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Underwriter, and the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) it has been advised that the Underwriter and its affiliates are engaged in a broad range
of transactions which may involve interests that differ from those of Company and that the
Underwriter has no obligation to disclose such interests and transactions to Company by virtue of
any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims it may have against the
Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty in respect of the
transactions contemplated by this Agreement and agrees that the Underwriter shall have no liability
(whether direct or indirect) to Company in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
- 33 -
17. This Agreement may be signed in counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York, without giving effect to the conflicts of laws provisions thereof.
19. No amendment or waiver of any provision of this Agreement, nor any consent or approval to
any departure therefrom, shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
[Signatures begin on following page]
- 34 -
| Very truly yours, FIRST INDUSTRIAL REALTY TRUST, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | VP — Corporate Legal | |||
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., as its sole
general partner
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | VP — Corporate Legal | |||
- 35 -
| UBS SECURITIES LLC | ||||||
| By: | /s/ Xxxx Xxxxx | |||||
| Name: | Xxxx Xxxxx | |||||
| Title: | Executive Director | |||||
| By: | /s/ Xxxx Xxxxxxxxxxx | |||||
| Name: | Xxxx Xxxxxxxxxxx | |||||
| Title: | Associate Director | |||||
- 36 -
SCHEDULE I
None.
- 37 -
SCHEDULE II
Oral Pricing Information
Number of Shares:
|
8,400,000 shares of common stock | |
Price to the Public:
|
$12.15 per share |
The Company plans to use the net proceeds from the offering for general corporate purposes, which
may include, without limitation, repayment or repurchase of certain of its outstanding indebtedness
and acquisitions and development of properties.
- 38 -
SCHEDULE III
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY
AND THE OPERATING PARTNERSHIP
AND THE OPERATING PARTNERSHIP
| ENTITY: | JURISDICTION | |
First Industrial Realty Trust, Inc.
|
California | |
| Florida | ||
| Georgia | ||
| Illinois | ||
| Indiana | ||
| Michigan | ||
| Minnesota | ||
| New Jersey | ||
| North Carolina | ||
| Oregon | ||
| Utah | ||
First Industrial, L.P.
|
Arizona | |
| California | ||
| Colorado | ||
| Florida | ||
| Georgia | ||
| Illinois | ||
| Indiana | ||
| Kansas | ||
| Kentucky | ||
| Maryland | ||
| Michigan | ||
| Minnesota | ||
| Missouri | ||
| New Jersey | ||
| Ohio | ||
| Pennsylvania | ||
| Tennessee | ||
| Texas | ||
| Utah | ||
| Washington | ||
| Wisconsin |
- 39 -
SCHEDULE IV
Xxxxx X. Xxxxxx
H. Xxxxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxx
W. Xx Xxxxx
Xxxx Xxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
L. Xxxxx Xxxxxx
Xxxxx X. Xxxxx
Johannson X. Xxx
Xxxxx Xxxxxx
Xxxxx X. Xxxxxxx
H. Xxxxxxx Xxxxxxx, Xx.
Xxxxx X. Xxxxx
W. Xx Xxxxx
Xxxx Xxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx
L. Xxxxx Xxxxxx
Xxxxx X. Xxxxx
Johannson X. Xxx
Xxxxx Xxxxxx
Xxxxx X. Xxxxxxx
- 40 -
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
May 31, 2011
UBS SECURITIES LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: First Industrial Realty Trust Inc. — Public Offering of Common Stock
Ladies and Gentlemen:
The undersigned understands that you, as the underwriter, propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with First Industrial Realty Trust,
Inc., a Maryland corporation (the “Company”), and First Industrial, L.P., a Delaware
limited partnership (the “Operating Partnership”), providing for the public offering (the
“Public Offering”) of 8,400,000 shares of common stock, par value $0.01 per share (“Common
Stock”), of the Company (the “Securities”). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of your agreement to purchase and make the Public Offering of the Securities,
and for other good and valuable consideration receipt of which is hereby acknowledged, the
undersigned hereby agrees that, without your prior written consent, the undersigned will not,
during the period ending 60 days after the date of the prospectus relating to the Public Offering
(the “Lock-Up Period”), (1) offer, pledge, announce the intention to sell, sell, contract
to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock, any securities convertible into or exercisable or
exchangeable for Common Stock or any shares of Common Stock received upon exercise of options
granted to the undersigned or received by the undersigned in exchange for or redemption of limited
partnership interests in the Operating Partnership (“Units”) (including, without
limitation, Common Stock or such other securities which may be deemed to be beneficially owned by
the undersigned in accordance with the rules and regulations of the Securities and Exchange
Commission and securities which may be issued upon exercise of a stock option or warrant) or (2)
enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Common Stock or such other securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise or (3) make any demand for or exercise any right with respect to
the registration of any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock, in each case other than (A) any Securities to be surrendered by the
undersigned to the Company in connection with satisfying tax withholding obligations upon the
vesting of restricted securities, (B) the delivery to the Company, in connection with the exercise
of warrants or options or the grant of securities under the Company’s stock incentive plan, of
Securities in satisfaction of the exercise price of such warrants or options or other applicable
withholding requirements, (C) the exchange or redemption of Units for shares of Securities, (D)
grants of a bona fide security interest in, or a bona fide pledge of, subsequent to the expiration
of the initial Lock-Up Period, shares of Securities or Units to a recognized financial institution
and transaction contemplated by such grants or pledge, as applicable, whether made before or after
the date of the Underwriting Agreement, (E) transfers of shares of Common Stock as a bona fide gift
or gifts, and
A-1
(F) distributions of shares of Common Stock to members or stockholders of the undersigned;
provided that in the case of any transfer or distribution pursuant to clause (E) or (F),
each donee or distributee shall execute and deliver to you a lock-up letter in the form of this
paragraph; and provided, further, that in the case of any transfer or distribution
pursuant to clause (E) or (F), no filing by any party (donor, donee, transferor or transferee)
under the Securities Exchange Act of 1934, as amended, or other public announcement shall be
required or shall be made voluntarily in connection with such transfer or distribution (other than
a filing on a Form 5 made after the expiration of the 60-day period referred to above).
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of Common Stock to be sold thereunder,
the undersigned shall be released from, all obligations under this Letter Agreement. The
undersigned understands that you are entering into the Underwriting Agreement and proceeding with
the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws principles thereof.
[Signatures begin on following page.]
A-2
| Very truly yours, |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-3
EXHIBIT B
The information contained in the fourth, fifth, tenth and eleventh paragraphs under the
caption “Underwriting” in the Prospectus.
B-1
