DISTRIBUTION AGREEMENT
Exhibit 10.1
May 4, 2010
X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the “Company”) and First
Industrial, L.P., a Delaware limited partnership whose sole general partner is the Company (the
“Operating Partnership”), confirm their agreement with X.X. Xxxxxx Securities Inc., as agent and/or
principal under any Terms Agreement (as defined in Section 1(a) below) (“you” or “JPMS”), with
respect to the issuance and sale from time to time by the Company, in the manner and subject to the
terms and conditions described below (this “Agreement”), of 10,000,000 shares of Common Stock (the
“Maximum Amount”), $0.01 par value per share, of the Company (the “Common Stock”) on the terms set
forth in Section 1 of this Agreement. Such shares are hereinafter collectively referred to as the
“Shares” and are described in the Prospectus referred to below.
The Company and the Operating Partnership have filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (No. 333-157771) (the
“registration statement”) for the registration of the Shares and other securities of the Company or
the Operating Partnership, as the case may be, under the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the “Act”); and such
registration statement sets forth the terms of the offering, sale and plan of distribution of the
Shares and contains additional information concerning the Company and its business. Except where
the context otherwise requires, “Registration Statement,” as used herein, means the registration
statement, as amended at the time of such registration statement’s effectiveness for purposes of
Section 11 of the Act, as such section applies to JPMS, including (1) all documents filed as a part
thereof or incorporated or deemed to be incorporated by reference therein and (2) any information
contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule
424(b) under the Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C
under the Act, to be part of the registration statement at the effective time. “Basic Prospectus”
means the prospectus dated September 18, 2009, filed as part of the Registration Statement,
including the documents incorporated by reference therein as of the date of such prospectus;
“Prospectus Supplement” means the most recent prospectus supplement relating to the Shares, to be
filed by the Company with the Commission pursuant to Rule 424(b) under the Act on or before the
second business day after the date of its first use in connection with a public offering or sale of
Shares pursuant hereto (or such earlier time as may be required under the Act), in the form
furnished by the Company to JPMS in connection with the offering of the Shares; “Prospectus” means
the Prospectus Supplement (and any additional prospectus supplement prepared in accordance with the
provisions of Sections 4(b) or 4(g) of this Agreement and filed in accordance with the provisions
of Rule 424(b)) together with the Basic
Prospectus attached to or used with the Prospectus
Supplement; and “Permitted Free Writing Prospectuses” has the meaning set forth in Section 3(b).
Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Permitted Free Writing Prospectus shall, unless otherwise stated,
be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be
incorporated by reference, therein (the “Incorporated Documents”), including, unless the context
otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any
reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free
Writing Prospectus shall, unless stated otherwise, be deemed to refer to and include the filing of
any document under the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “Exchange Act”) on or after the initial effective date of the
Registration Statement, or the date of the Basic Prospectus, the Prospectus Supplement, the
Prospectus or such Permitted Free Writing Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
The Company and the Operating Partnership have also entered into distribution agreements (the
“Alternative Distribution Agreements”), dated as of even date herewith, with Xxxxx Fargo
Securities, LLC, Xxxxxx Xxxxxx & Company, Inc., Xxxxx Xxxxxxx & Co. and Lazard Capital Markets LLC
(each, an “Alternative Agent” and together with JPMS, the “Agents”). The aggregate number of the
Shares that may be sold pursuant to this Agreement, any Terms Agreement, the Alternative
Distribution Agreements and any Alternative Terms Agreement shall not exceed the Maximum Amount.
This Agreement and the Alternative Distribution Agreements are sometimes hereinafter referred to as
the “Distribution Agreements.”
The Company and JPMS agree as follows:
1. Issuance and Sale.
(a) Upon the basis of the representations, warranties and agreements and subject to the terms
and conditions set forth herein, on any Exchange Business Day (as defined below) selected by the
Company, the Company and JPMS shall enter into an agreement in accordance with Section 2 hereof
regarding the number of Shares to be placed by JPMS and the manner in which and other terms upon
which such placement is to occur (each such transaction being referred to as an “Agency
Transaction”). The Company may also offer to sell the Shares directly to JPMS, as principal, in
which event such parties shall enter into a separate agreement (each, a “Terms Agreement”) in
substantially the form of Exhibit A hereto, relating to such sale in accordance with Section 2(g)
of this Agreement (each such transaction being referred to as a “Principal Transaction”). Whenever
the Company determines to sell the Shares directly to an Alternative Agent as principal, it will
enter into a separate agreement (each, an “Alternative Terms Agreement”) in substantially the form
of Exhibit A to the Alternative Distribution Agreements. As used herein, (i) the “Term” shall be
the period commencing on the date hereof and ending on the earliest of (x) the date on which the
number of Shares issued and sold pursuant to the Distribution Agreements, any Terms Agreements and
any Alternative Terms Agreements is equal to the Maximum Amount and (y) any termination of this
Agreement pursuant to Section 8, (ii) an “Exchange Business Day” means any day during the Term that
is a trading day
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for the Exchange other than a day on which trading on the Exchange is scheduled to
close prior to its regular weekday closing time, and (iii) “Exchange” means the New York Stock
Exchange.
(b) Subject to the terms and conditions set forth below, the Company appoints JPMS as agent in
connection with the offer and sale of Shares in any Agency Transactions entered into hereunder.
JPMS will use commercially reasonable efforts to sell such Shares in accordance with the terms and
conditions hereof and of the applicable Transaction Notice (as defined below). Neither the Company
nor JPMS shall have any obligation to enter into an Agency Transaction. The Company shall be
obligated to issue and sell through JPMS, and JPMS shall be obligated to use commercially
reasonable efforts, as provided herein and in the applicable Transaction Notice, to place Shares
issued by the Company only if and when a Transaction Notice related to such an Agency Transaction
has been delivered by JPMS and accepted by the Company as provided in Section 2 below.
(c) JPMS, as agent in any Agency Transaction, hereby covenants and agrees not to make any
sales of the Shares on behalf of the Company, pursuant to this Agreement, other than (A) by means
of ordinary brokers’ transactions between members of the Exchange that qualify for delivery of a
Prospectus in accordance with Rule 153 under the Act and meet the definition of an “at the market
offering” under Rule 415(a)(4) under the Act (each such transaction is hereinafter referred to as
an “At the Market Offering”) and (B) such other sales of the Shares on behalf of the Company in its
capacity as agent of the Company as shall be agreed by the Company and JPMS in writing.
(d) If Shares are sold in an Agency Transaction in an At The Market Offering, JPMS, will
confirm in writing to the Company the number of Shares sold on any Exchange Business Day and the
related Gross Sales Price and Net Sales Price (as each of such terms is defined in Section 2(b)
below) no later than the opening of trading on the immediately following Exchange Business Day.
(e) If the Company shall default on its obligation to deliver Shares to JPMS pursuant to the
terms of any Agency Transaction or Terms Agreement, the Company shall (i) indemnify and hold JPMS
and its successors and assigns harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) notwithstanding any such default, pay to JPMS the
commission to which it would otherwise be entitled in connection with such sale in accordance with
Section 2(b) below.
(f) The Company acknowledges and agrees that (i) there can be no assurance that JPMS will be
successful in selling the Shares, (ii) JPMS shall incur no liability or obligation to the Company
or any other person or entity if it does not sell Shares for any reason other than a failure by
JPMS to use its commercially reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Shares in accordance with the terms of
this Agreement, and (iii) JPMS shall be under no obligation to purchase Shares on a principal basis
pursuant to this Agreement, except as may otherwise be specifically agreed by JPMS and the Company
in a Terms Agreement.
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2. Transaction Notices and Terms Agreements.
(a) The Company may, from time to time during the Term, propose to JPMS that they enter into
an Agency Transaction to be executed on a specified Exchange Business Day or over a specified
period of Exchange Business Days. If JPMS agrees to the terms of such proposed Agency Transaction
or if the Company and JPMS mutually agree to modified terms for such proposed Agency Transaction,
then JPMS shall promptly send to the Company (by any means permissible under Section 10 hereof) a
notice, substantially in the form of Exhibit B hereto (each, a “Transaction Notice”), confirming
the agreed terms of such proposed Agency Transaction. If the Company wishes such proposed Agency
Transaction to become a binding agreement between it and JPMS, the Company shall promptly indicate
its acceptance thereof by countersigning and returning such Transaction Notice to JPMS or sending a
written notice to JPMS (by any means permissible under Section 10 hereof) indicating its
acceptance. The terms reflected in a Transaction Notice shall become binding on JPMS and the
Company only if accepted by the Company no later than the dates and times specified in such
Transaction Notice. Each Transaction Notice shall specify, among other things:
(i) the Exchange Business Day(s) on which the Shares subject to such Agency Transaction are
intended to be sold (each, a “Purchase Date”);
(ii) the maximum number of Shares that the Company intends to sell (the “Specified Number of
Shares”) on, or over the course of, such Purchase Date(s), provided that the number of Shares sold
on each Purchase Date shall be no less than 5% and no more than 25% of the average daily trading
volume in the Common Stock on the Exchange for the thirty (30) Exchange Business Days preceding the
date of delivery of the Transaction Notice, or as otherwise agreed between the Company and JPMS and
documented in the relevant Transaction Notice; and
(iii) the lowest price, if any, at which the Company is willing to sell Shares on each such
Purchase Date or a formula pursuant to which such lowest price shall be determined (each, a “Floor
Price”).
A Transaction Notice shall not set forth a Specified Number of Shares that, when added to the
aggregate number of Shares previously purchased and to be purchased pursuant to pending Transaction
Notices (if any) hereunder, any Terms Agreement, an Alternative Distribution Agreement and any
Alternative Terms Agreement, results in a total number of shares that exceeds the Maximum Amount.
Provided that JPMS confirms to the Company the number of Shares sold in accordance with Section
1(d) above, the Company shall have responsibility for maintaining records with respect to the
aggregate dollar amount of Shares sold, or for otherwise monitoring the availability of Shares for
sale under the Registration Statement. In the event that more than one Transaction Notice with
respect to any Purchase Date(s) is accepted by the Company, the latest executed Transaction Notice
shall govern any sales of Shares for the relevant Purchase Date(s), except to the extent of any
action occurring pursuant to a prior accepted Transaction Notice and prior to the acceptance of
such latest Transaction Notice. The Company or JPMS may, upon notice to the other party hereto by
telephone (confirmed promptly by e-mail or facsimile), suspend the offering of the Shares for any
reason; provided, however, that such suspension or termination shall not affect or impair the
parties’ respective
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obligations with respect to the Shares sold hereunder prior to the giving of
such notice. Notwithstanding the foregoing, if the terms of any Agency Transaction contemplate
that Shares shall be sold on more than one Purchase Date, then the Company and JPMS shall mutually
agree to such additional terms and conditions as they deem reasonably necessary in respect of such
multiple Purchase Dates, and such additional terms and conditions shall be set forth in the
relevant Transaction Notice and be binding to the same extent as any other terms contained therein.
(b) The Purchase Date in respect of the Shares deliverable pursuant to any Transaction Notice
shall be set forth in the Transaction Notice. Except as otherwise agreed between the Company and
JPMS, JPMS’s commission shall be 2.0% of the actual sales price of the Shares (the “Gross Sales
Price”) sold pursuant to this Agreement, provided, however, that such commission shall not apply to
any Principal Transaction with respect to which any commission or discount shall be set forth in
the applicable Terms Agreement. The Gross Sales Price less JPMS’s commission is referred to herein
as the “Net Sales Price.”
(c) Payment of the Net Sales Price for Shares sold by the Company on any Purchase Date
pursuant to a Transaction Notice shall be made to the Company by federal funds wire transfer to the
account of the Company, the details of which are set forth on Schedule I hereto, against delivery
of such Shares to JPMS’s account, or an account of JPMS’s designee, at The Depository Trust Company
through its Deposit and Withdrawal at Custodian System (“DWAC”) or by such other means of delivery
as may be agreed to by the Company and JPMS. Such payment and delivery shall be made at or about
10:00 a.m. (New York City time), on the third Exchange Business Day (or such other day as may, from
time to time, become standard industry practice for settlement of such a securities issuance or as
agreed to by the Company and JPMS) following each Purchase Date (each, an “Agency Settlement
Date”), provided, however, that in no event shall the Company be obligated to deliver Shares to
JPMS unless the Company shall have received the payment of the Net Sale Price for Shares sold on
any Purchase Date prior to or simultaneously with the delivery of such Shares. If the Company
fails for any reason to make timely delivery of such Shares after receiving payment for such
Shares, the Company shall indemnify JPMS and its successors and assigns and hold them harmless from
and against any loss, damage, expense, liability or claim that JPMS may incur as a result of such
failure.
(d) If, as provided in the related Transaction Notice, a Floor Price has been agreed to by the
parties with respect to a Purchase Date, and JPMS thereafter determines and notifies the Company
that the Gross Sales Price for such Agency Transaction would not be at least equal to such Floor
Price, then the Company shall not be obligated to issue and sell through JPMS, and JPMS shall not
be obligated to place, the Shares proposed to be sold pursuant to such Agency Transaction on such
Purchase Date, unless the Company otherwise agrees in writing.
(e) If either party has reason to believe that the exemptive provisions set forth in Rule
101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Shares, it
shall promptly notify the other party and sales of the Shares under this Agreement, any Transaction
Notice or any Terms Agreement shall be suspended until that or other exemptive provisions have been
satisfied in the judgment of each party. On or prior to the delivery of a prospectus that is
required (whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with the offering or sale of the Shares, JPMS and the
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Company shall each calculate
the average daily trading volume (as defined under “ADTV” by Rule 100 of Regulation M under the
Exchange Act) of the Common Stock based on market data provided by Bloomberg L.P. or such other
sources as agreed upon by JPMS and
the Company.
(f) If the Company wishes to issue and sell the Shares pursuant to this Agreement but other
than as set forth in Section 2(a) of this Agreement, it will notify JPMS of the proposed terms of
the Principal Transaction. If JPMS, acting as principal, wishes to accept such proposed terms
(which it may decline to do for any reason in its sole discretion) or, following discussions with
the Company, wishes to accept amended terms, the Company and JPMS shall enter into a Terms
Agreement setting forth the terms of such Principal Transaction. The terms set forth in a Terms
Agreement shall not be binding on the Company or JPMS unless and until the Company and JPMS have
each executed such Terms Agreement accepting all of the terms of such Terms Agreement. In the
event of a conflict between the terms of this Agreement and the terms of a Terms Agreement, the
terms of such Terms Agreement shall control.
(g) Each sale of the Shares to JPMS in a Principal Transaction shall be made in accordance
with the terms of this Agreement and a Terms Agreement, which shall provide for the sale of such
Shares to, and the purchase thereof by, JPMS. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Shares by JPMS. The commitment of JPMS to purchase
the Shares pursuant to any Terms Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Any such Terms Agreement shall specify the number of
the Shares to be purchased by JPMS pursuant thereto, the price to be paid to the Company for such
Shares, any provisions relating to rights of, and default by, underwriters acting together with
JPMS in the reoffering of the Shares, and the time and date (each such time and date being referred
to herein as a “Principal Settlement Date”; and, together with any Agency Settlement Date, a
“Settlement Date”) and place of delivery of and payment for such Shares. The Company acknowledges
and agrees that compensation in a Principal Transaction shall be customary for similar
transactions.
(h) The Company shall provide JPMS with a copy of its policy on xxxxxxx xxxxxxx and advise
JPMS in writing of any changes thereto. Without the prior written consent of each of the Company
and JPMS, the Company shall not request the sale of any Shares that would be sold, and JPMS need
not make any sale of Shares, (i) during any period in which the Company is in possession of
material non-public information, (ii) during any period in which the Company’s xxxxxxx xxxxxxx
policy, as it exists on the date of the request, would prohibit the purchases or sales of the
Company’s Common Stock by its officers or directors; provided that, unless otherwise agreed between
the Company and JPMS, for purposes of this clause (ii), such period shall be deemed to end on the
date on which the Company’s next subsequent Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, is filed with the Commission or (iii) except as provided in Section 2(i)
below, at any time from and including the date (each, an “Announcement Date”) on which the Company
shall issue a press release containing, or shall otherwise publicly announce, its earnings,
revenues or other results of operations (each, an “Earnings Announcement”) through and including
the time that is 24 hours after the time that the Company files (a “Filing Time”) a Quarterly
Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial
statements as of and for the same period or periods, as the case may be, covered by such Earnings
Announcement.
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(i) If the Company wishes to offer, sell or deliver Shares on any time during the period from
and including an Announcement Date through and including the time that is 24 hours after the
corresponding Filing Time, the Company shall (i) prepare and deliver to JPMS (with a copy to
counsel to JPMS) a Current Report on Form 8-K which shall include substantially the same financial
and related information as was set forth in the relevant Earnings Announcement (other than any
earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings
8-K”), in form and substance reasonably satisfactory to JPMS, (ii) provide JPMS with the officers’
certificate, accountants’ letter and opinions and letters of counsel called for by Sections
(5)(a)(i) through (iv) hereof, respectively, (iii) afford JPMS the opportunity to conduct a due
diligence review in accordance with Section 6(f) hereof and (iv) file such Earnings 8-K with the
Commission, then the provisions of clause (iii) of Section 2(h) shall not be applicable for the
period from and after the time at which the foregoing conditions shall have been satisfied (or, if
later, the time that is 24 hours after the time that the relevant Earnings Announcement was first
publicly released) through and including the time that is 24 hours after the Filing Time of the
relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as the case may be. For
purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate,
accountants’ letter and opinions and letters of counsel pursuant to this Section 2(i) shall not
relieve the Company from any of its obligations under this Agreement with respect to any Quarterly
Report on Form 10-Q or Annual Report on Form 10-K, as the case may be, including, without
limitation, the obligation to deliver officers’ certificates, accountants’ letters and legal
opinions and letters as provided in Section 6 hereof and (B) this Section 2(i) shall in no way
affect or limit the operation of the provisions of clauses (i) and (ii) of Section (h), which
shall have independent application.
(j) The Company agrees that any offer to sell, any solicitation of an offer to buy, or any
sales of Shares or any other equity security of the Company by the Company shall only be effected
by or through only one of JPMS or an Alternative Agent on any single given day (subject to the
exceptions set forth in Section 4(o) below), but in no event by more than one Agent, and the
Company shall in no event request that JPMS and an Alternative Agent sell Shares on the same day;
provided, however, that the foregoing limitation shall only apply with respect to an Agency
Transaction and not to any Principal Transaction effected at any time by any Agent.
3. Representations, Warranties and Agreements of the Company and the Operating Partnership.
The Company and the Operating Partnership, jointly and severally, represent and warrant to, and
agree with, JPMS, on and as of (i) the date hereof, (ii) each date on which the Company accepts a
Transaction Notice (the “Time of Acceptance”) or executes and delivers a Terms Agreement, (iii)
each Time of Sale (as defined below), (iv) each Settlement Date and (v) each Bring-Down Delivery
Date (as defined in Section 6(b)) (each such date listed in (i) through (v), a “Representation
Date”), as follows:
(a) There is no order preventing or suspending the use of the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus, and, to the knowledge of the Company, no
proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to
the offering of the Shares pursuant to the Distribution Agreements has been initiated or threatened
by the Commission; no notice of objection of the Commission to the use of such Registration
Statement pursuant to Rule 401(g)(2) under the Act has been received by the
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Company; the
Registration Statement complied when it initially became effective, complies as of the date hereof
and, as then amended or supplemented, as of each other Representation Date will comply, in all
material respects, with the requirements of the Act; the conditions to the use of Form S-3 in
connection with the offering and sale of the Shares as contemplated hereby have been satisfied; the
Registration Statement meets, and the offering and sale of the Shares as contemplated hereby
complies with, the requirements of Rule 415 under the Act (including, without limitation, Rule
415(a)(5)); the Prospectus and any Permitted Free Writing Prospectus complied or will comply, at
the time it was or will be filed with the Commission, and will comply, as then amended or
supplemented, as of each Representation Date, in all material respects, with the requirements of
the Act and each Prospectus or any Permitted Free Writing Prospectus delivered to the Agents for
use in connection with the offering of Shares will, at the time of such delivery, be identical to
the electronically transmitted copies thereof filed with the Commission pursuant to the
Commission’s Electronic Data Gathering and Retrieval System or any successor system thereto
(“XXXXX”), except to the extent permitted by Regulation S-T; the Registration Statement did not, as
of the time of its initial effectiveness, and does not or will not, as then amended or
supplemented, as of each Representation Date, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; as of each Representation Date, the Prospectus, as then amended or
supplemented, together with all of the then issued Permitted Free Writing Prospectuses, if any,
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 under which they were
made, not misleading; provided, however, that the Company makes no representation or warranty with
respect to any statement or omission in the Registration Statement, the Prospectus or any Permitted
Free Writing Prospectus in reliance upon and in conformity with information concerning any Agent
and furnished in writing by or on behalf of any Agent expressly for use in the Registration
Statement, the Prospectus or such Permitted Free Writing Prospectus (it being understood that such
information consists solely of the information specified in Section 9(b)). As used herein, “Time
of Sale” means (i) with respect to each offering of Shares pursuant to this Agreement, the time of
JPMS’s initial entry into contracts with investors for the sale of such Shares and (ii) with
respect to each offering of Shares pursuant to any relevant Terms Agreement, the time of sale of
such Shares.
(b) Prior to the execution of this Agreement, the Company has not, directly or indirectly,
offered or sold any of the Shares by means of any “prospectus” (within the meaning of the Act) or
used any “prospectus” (within the meaning of the Act) in connection with the offer or sale of the
Shares, in each case other than the Basic Prospectus. The Company represents and agrees that,
unless it obtains the prior consent of JPMS, until the termination of this Agreement, it has not
made and will not make any offer relating to the Shares that would constitute an “issuer free
writing prospectus” (as defined in Rule 433 under the Act) or that would otherwise constitute a
“free writing prospectus” (as defined in Rule 405 under the Act) other than any Permitted Free
Writing Prospectus made pursuant to this Agreement or any Terms Agreement. Any such free writing
prospectus relating to the Shares consented to by the Agents is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company represents that it has complied and will comply
in all material respects with the requirements of Rule 433 under the Act applicable to any
Permitted Free Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping. The conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and
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the registration statement
relating to the offering of the Shares contemplated hereby, as initially filed with the Commission,
includes a prospectus that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies
the requirements of Section 10 of the Act; the Company is not disqualified, by reason of Rule
164(f) or (g) under the Act, from using, in connection with the offer and sale of the Shares, “free
writing prospectuses” (as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under
the Act.
(c) The Incorporated Documents, at the time they were, or hereafter are, filed with the
Commission, complied and will comply in all material respects with the requirements of the Exchange
Act, and, when read together with other information included in, and incorporated by reference in,
the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, at the time
the Registration Statement became effective, as of the date of the Prospectus, and as of each
Representation Date, or during the period specified in Section 4(c) did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The foregoing representations and warranties in this Section 3(c) do not apply to any statements or
omissions made in reliance on and in conformity with information relating to any Agents furnished
in writing to the Company or the Operating Partnership by the Agents specifically for inclusion in
the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus or any
amendment or supplement thereto.
(d) 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 Act or being the subject of a proceeding
under Section 8A of the Act in connection with the offering of the Shares, all as described in Rule
405. The Company has paid the registration fee for this offering pursuant to Rule 457 under the
Act.
(e) Each Permitted Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Shares or until any earlier date that
the Company notified or notifies the Agents 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
Permitted Free
Writing Prospectus there occurred or occurs an event or development as a result of
which such Permitted 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 or will promptly notify the Agents and (ii) the
Company has promptly amended or will promptly amend or supplement such Permitted 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 Permitted Free
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Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by the Agents
specifically for use therein, it being understood and agreed that the only such information
furnished by the Agents consists of the information described as such in Section 9(b) hereof.
(f) 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. 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 each Representation 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
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contemplated hereby. The Company and each of the Corporate Subsidiaries is, and at
each Representation 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 780 in service properties owned, directly or
indirectly, by the Company as of March 31, 2010 (the “Properties”), taken as a whole, (ii) the
issuance, validity or enforceability of the Shares 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 each Representation 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 Agents or their counsel have
been delivered to the Agents or their counsel.
(g) The Company’s authorized capitalization consists of 10,000,000 shares of preferred stock
par value $0.01 per share, 100,000,000 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 Shares
have been duly authorized for issuance and sale to the Agents pursuant to this Agreement, any
Alternative Distribution Agreement or any Terms Agreement and, when Shares are validly issued and
delivered to the Agents pursuant to this Agreement, any Alternative Distribution Agreement or any
Terms Agreement against payment of the Net Sales Price, will be duly authorized, validly issued,
fully paid and non-assessable and will not be subject to any preemptive or similar right and will
have been offered and sold in compliance, in all material respects, with all applicable laws
(including, without limitation, federal or state securities laws). The description of the Shares,
and the statements related thereto, contained in the Registration Statement or the Prospectus are,
and at each Representation Date, will be, complete and accurate in all material respects. Upon
payment of the Net Sales Price therefor and delivery of the Shares in accordance herewith, JPMS
will receive good, valid and marketable title to the purchased Shares, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims and equities. If certificates
are to be used to evidence the Shares, 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 securities (i) to be
issued pursuant to this Agreement, (ii) to be issued in exchange for limited partnership units of
the Operating Partnership outstanding as of the date hereof or (iii) (A) available for future
issuance under the Company’s 1997 Stock Incentive Plan, 2001 Stock Incentive Plan and 2009 Stock
Incentive Plan, (B) issuable in respect of unvested restricted stock units or stock options
outstanding as of the date hereof, or (C)
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issuable in connection with the exchange of the Operating
Partnership’s 4.625% Exchangeable Senior Notes due 2011.
(h) (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 each Representation Date subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in equity or at law, and
the discretion of the court before which any proceeding therefor may be brought. All of the issued
and outstanding shares of capital stock of the Company and each Corporate Subsidiary, all of the
outstanding units of general, limited and/or preferred partner interests 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 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).
(i) The financial statements, supporting schedules and related notes included in, or
incorporated by reference in, the Registration Statement, the Prospectus and any Permitted Free
Writing Prospectus comply in all material respects with the requirements of the 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, or incorporated by reference in, in the Registration
Statement, the Prospectus and any Permitted Free Writing 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 Prospectus and any Permitted Free
Writing 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
Prospectus and any Permitted Free Writing Prospectus, pro forma and/or as
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adjusted financial
information included in, or incorporated by reference in, the Registration Statement, the
Prospectus and any Permitted Free Writing Prospectus have been prepared in accordance with the
applicable requirements of the Act and the American Institute of Certified Public Accountants
(“AICPA”) guidelines with respect to pro forma and as adjusted financial information, and include
all adjustments necessary to present fairly the pro forma and/or as adjusted financial condition of
the entity or entities or group presented or included therein at the respective dates indicated and
the results of operations and cash flows for the respective periods specified. The 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 Act or the Exchange Act to be included in the Registration
Statement, the Prospectus or any Permitted Free Writing 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 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.
(j) Subsequent to the respective dates as of which information is given in the Registration
Statement, the Prospectus and any Permitted Free Writing Prospectus and prior to each
Representation Date, (i) there has not been and will not have been, except as set forth in or
contemplated by the Registration Statement, the Prospectus, any Permitted Free Writing 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 Prospectus or any
Permitted Free Writing 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 Prospectus, any Permitted Free Writing
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,
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(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 any Permitted Free Writing Prospectus.
(k) None of the Company, the Operating Partnership or any of the Subsidiaries is, or as of
each Representation Date will be, required to be registered under the Investment Company Act of
1940, as amended (the “1940 Act”).
(l) To the knowledge of the Company or the Operating Partnership, after due inquiry, except as
set forth in the Registration Statement, the Prospectus and any Permitted Free Writing Prospectus,
there are no actions, suits, proceedings, investigations or inquiries, pending or, after due
inquiry, threatened against or affecting the Operating Partnership, the Company or any of the
Subsidiaries or any of their respective officers or directors in their capacity as such or of which
any of their respective properties or assets or any Property is the subject or bound, before or by
any Federal or state court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect.
(m) The Company, the Operating Partnership and each of the Subsidiaries (i) has, and at each
Representation 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 Prospectus or any Permitted Free Writing 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 each Representation 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 Representation 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.
(n) No Material consent, approval, authorization or order of, or any filing or declaration
with, any court or governmental agency or body or any other entity is required in connection with
the offering, issuance or sale of the Shares hereunder except such as have been obtained under the
Act, 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
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conflict of interest rules of
the Financial Industry Regulatory Authority (“FINRA”) in connection with the purchase and
distribution by the Agents of the Shares 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.
(o) The Company and the Operating Partnership have full corporate or partnership power, as the
case may be, to enter into this Agreement and any Terms Agreement. This Agreement has been, and
any Terms Agreement will have been, duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, to the extent a party thereto, constitute a valid and
binding agreement of the Company and the Operating Partnership, and assuming due authorization,
execution and delivery by the Agents, 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 or any Terms Agreement, and the consummation of the
transactions contemplated hereby and thereby, and compliance by each of the Company, the Operating
Partnership and the Subsidiaries with its obligations hereunder and thereunder to the extent each
is a party thereto, will not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets or properties of the Operating Partnership, the Company or any
of the Subsidiaries pursuant to the terms or provisions of, or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or give any other party a right
to terminate any of its obligations under, or result in the acceleration of any obligation under,
(a) the certificate of incorporation, by-laws, certificate of limited partnership, partnership
agreement or other organizational documents of the Operating Partnership, the Company or any of the
Subsidiaries, (b) any Contract or Other Agreement to which the 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(i)) 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.
(p) As of each Representation 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 Prospectus and any Permitted Free Writing 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 Prospectus or any Permitted Free Writing
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.
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(q) 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.
(r) 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.
(s) 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.
(t) Except as disclosed in the Registration Statement, the Prospectus and any Permitted Free
Writing 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 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
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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 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.
(u) 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
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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.
(v) 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.
(w) 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.
(x) There is no material document or contract of a character required to be described or
referred to in the Registration Statement, the Prospectus or any Permitted Free Writing 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 Prospectus or any Permitted Free Writing
Prospectus are accurate in all material respects.
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(y) 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.
(z) 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.
(aa) 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.
(bb) 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.
(cc) 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 Act to be described in the Registration Statement, the Prospectus
and any Permitted Free Writing Prospectus which is not so described in such documents.
(dd) 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 Shares, 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 Shares other than the Prospectus, any preliminary prospectus filed with
the Commission or other material permitted by the Act (which were disclosed to you and your
counsel).
(ee) 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
- 19 -
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.
(ff) Any certificate or other document signed by any officer or authorized representative of
the Operating Partnership, the Company or any Subsidiary, and delivered to JPMS or to counsel for
JPMS in connection with the sale of the Shares shall be deemed a representation and warranty by
such entity or person, as the case may be, to JPMS as to the matters covered thereby.
(gg) The Registration Statement has been declared effective by the Commission under the 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.
(hh) 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.
(ii) 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 quarterly report
on Form 10-Q for the quarter ended March 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.
(jj) Based on its evaluation of its internal controls over financial reporting at December 31,
2009, 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.
- 20 -
(kk) 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.
(ll) 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 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.
(mm) 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.
(nn) 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
Shares hereunder or under any Terms Agreement, 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.
(oo) 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.
(pp) 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
- 21 -
the
Subsidiaries or any Agent for a brokerage commission, finder’s fee or like payment in connection
with the offering and sale of the Shares.
(qq) 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 Prospectus and any Permitted Free Writing
Prospectus is not based on or derived from sources that are reliable and accurate in all material
respects.
(rr) 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.
(ss) 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 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.
(tt) No forward-looking statement (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) contained or incorporated by reference in the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(uu) 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 the Shares being sold hereunder have been approved for listing,
subject only to official notice of issuance, on the NYSE.
- 22 -
4. Certain Covenants of the Company and the Operating Partnership. The Company and the
Operating Partnership, jointly and severally, hereby agree with JPMS as follows:
(a) For so long as the delivery of a prospectus is required (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with the offering or sale
of Shares, before using or filing any Permitted Free Writing Prospectus and before amending or
supplementing the Registration Statement or the Prospectus (in each case, other than due to the
filing of an Incorporated Document), to furnish to JPMS a copy of each such proposed Permitted Free
Writing Prospectus, amendment or supplement within a reasonable period of time before filing any
such Permitted Free Writing Prospectus, amendment or supplement with the Commission and the Company
will not use or file any such Permitted Free Writing Prospectus or file any such proposed amendment
or supplement to which JPMS reasonably objects, unless the Company’s legal counsel has advised the
Company that use or filing of such document is required by law.
(b) As promptly as practicable after the close of each of the Company’s fiscal quarters, to
prepare a Prospectus Supplement, with respect to any Shares sold by the Company pursuant to this
Agreement in a form previously approved by JPMS and to file such Prospectus Supplement pursuant to
Rule 424(b) under the Act (and within the time periods required by Rule 424(b) and Rules 430A, 430B
or 430C under the Act) and to file any Permitted Free Writing Prospectus to the extent required by
Rule 433 under the Act and to provide copies of the Prospectus and such Prospectus Supplement and
each Permitted Free Writing Prospectus (to the extent not previously delivered or filed on XXXXX)
to JPMS via e-mail in “.pdf” format on such filing date to an e-mail account designated by JPMS
and, at JPMS’s request, to also furnish copies of the Prospectus and such Prospectus Supplement to
each exchange or market on which sales were effected as may be required by the rules or regulations
of such exchange or market.
(c) To file promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with the offering
or sale of the Shares, and during such same period to advise JPMS, promptly after the Company
receives notice thereof, (i) of the time when any amendment to the Registration Statement has been
filed or has become effective or any supplement to the Prospectus or any Permitted Free Writing
Prospectus or any amended Prospectus has been filed with the Commission; (ii) of the issuance by
the Commission of any stop order or any order preventing or suspending the use of any prospectus
relating to the Shares or the initiation or threatening of any proceeding for that purpose,
pursuant to Section 8A of the Act; (iii) of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose; (iv) of any request by the Commission for the amendment of the Registration Statement
or the amendment or supplementation of the Prospectus or for additional information; (v) of the
occurrence of any event as a result of which the Prospectus or any Permitted Free Writing
Prospectus as then amended or supplemented includes any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus or any such
Permitted Free Writing
- 23 -
Prospectus is delivered to a purchaser, not misleading; and (vi) of the
receipt by the Company of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto.
(d) In the event of the issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such qualification to use promptly its
commercially reasonable efforts to obtain its withdrawal.
(e) To furnish such information as may be required and otherwise to cooperate in qualifying
the Shares for offering and sale under the securities or blue sky laws of such states as JPMS may
reasonably designate and to maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be required to qualify as a foreign
corporation, become a dealer of securities, or become subject to taxation in, or to consent to the
service of process under the laws of, any such state (except service of process with respect to the
offering and sale of the Shares); and to promptly advise JPMS of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation of any proceeding for such purpose.
(f) To make available to JPMS at its offices in New York City, without charge, as soon as
reasonably practicable after the Registration Statement becomes effective, and thereafter from time
to time to furnish to JPMS, as many copies of the Prospectus and the Prospectus Supplement (or of
the Prospectus or Prospectus Supplement as amended or supplemented if the Company shall have made
any amendments or supplements thereto and documents incorporated by reference therein after the
effective date of the Registration Statement) and each Permitted Free Writing Prospectus as JPMS
may reasonably request for so long as the delivery of a prospectus is required (whether physically
or through compliance with Rule 172 under the Act or any similar rule); and for so long as this
Agreement is in effect, the Company will prepare and file promptly such amendment or amendments to
the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as may be
necessary to comply with the requirements of Section 10(a)(3) of the Act.
(g) To furnish or make available to JPMS during the term of this Agreement and for a period of
two years thereafter (i) copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly disseminate and (ii) copies of
all annual, quarterly and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar form as may be designated by the Commission, and to furnish to JPMS from time to
time during the term of this Agreement such other information as JPMS may reasonably request
regarding the Company, the Operating Partnership or their subsidiaries, in each case as soon as
such reports, communications, documents or information becomes available or promptly upon the
request of JPMS, as applicable; provided, however, that the Company, the Operating Partnership and
their subsidiaries shall have no obligation to provide JPMS with any document filed on XXXXX or
included on the Company’s Internet website.
(h) If, at any time during the term of this Agreement, any event shall occur or condition
shall exist as a result of which it is necessary in the reasonable opinion of counsel for JPMS or
counsel for the Company, to further amend or supplement the Prospectus or any
- 24 -
Permitted Free
Writing Prospectus as then amended or supplemented in order that the Prospectus or any such
Permitted Free Writing Prospectus will not include an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order to make the
statements therein not misleading, in light of the circumstances existing at the time the
Prospectus or any such Permitted Free Writing Prospectus is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, to amend or supplement the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in order to comply
with the requirements of the Act, in the case of such a determination by counsel to the Company,
immediate notice shall be given, and confirmed in writing, to JPMS to cease the solicitation of
offers to purchase the Shares in JPMS’s capacity as agent, and, in either case, the Company will
promptly prepare and file with the Commission such amendment or supplement, whether by filing
documents pursuant to the Act, the Exchange Act or otherwise, as may be necessary to correct such
untrue statement or omission or to make the Registration Statement, the Prospectus or any such
Permitted Free Writing Prospectus comply with such requirements.
(i) 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 earnings
statement (in form complying with the provisions of Rule 158 of the Act) covering a period of at
least twelve months after the effective date of the Registration Statement (but in no event
commencing later than 75 days after such date) which shall satisfy the provisions of Section 11(a)
of the Act, and, if required by Rule 158 of the act, to file such statement as an exhibit to the
next periodic report required to be filed by the Company under the Exchange Act covering the period
when such earning statement is released.
(j) To apply the net proceeds from the sale of the Shares in the manner described in the
Registration Statement or the Prospectus under the caption “Use of Proceeds.”
(k) Not to, and to cause its subsidiaries not to, take, directly or indirectly, any action
designed to cause or result in, or that constitutes or might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares; provided that nothing herein shall prevent the Company from filing or
submitting reports under the Exchange Act or issuing press releases in the ordinary course of
business.
(l) The Company will use its best efforts to continue to qualify as a REIT under Sections 856
through 860 of the Code, unless the Company’s board of directors determines that it is no longer in
the best interests of the Company to be so qualified.
(m) (i) Except as otherwise agreed between the Company and JPMS, to pay all costs, expenses,
fees and taxes in connection with (i) the preparation and filing of the Registration Statement, the
Prospectus, any Permitted Free Writing Prospectus and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to JPMS and to dealers (including costs of
mailing and shipment), (ii) the registration, issue and delivery of the Shares to JPMS, (iii) the
producing, word processing and/or printing of this Agreement, any powers of Attorney and any
closing documents (including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to JPMS
- 25 -
(including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including the reasonable legal fees and
filing fees and other disbursements of counsel to the Agents in connection therewith) and the
printing and furnishing of copies of any blue sky surveys or legal investment surveys to JPMS, (v)
the listing of the Shares on the Exchange and any registration thereof under the Exchange Act, (vi)
any filing for review of the public offering of the Shares by FINRA, (vii) the fees and
disbursements of counsel to the Company and of the Company’s independent registered public
accounting firm and (viii) the performance of the Company’s other obligations hereunder; provided
that JPMS shall be responsible for any transfer taxes on resale of Shares by it, any costs and
expenses associated with the sale and marketing of the Shares, and legal costs of JPMS other than
as specifically provided in (iv) above.
(ii) If this Agreement is terminated (A) by the Company in accordance with the provisions of
Section 8(a) hereof at any time prior to the offer and sale of Shares with an aggregate Gross Sales
Price of $25,000,000 sold under this Agreement or any Terms Agreement, Alternative Distribution
Agreement or Alternative Terms Agreement or (B) in accordance with provisions of Section 8(b)
hereof at December 31, 2010, and prior to the offer and sale of Shares with an aggregate Gross
Sales Price of $25,000,000 sold under this Agreement or any Terms Agreement, Alternative
Distribution Agreement or Alternative Terms Agreement, to reimburse JPMS for all of their
reasonable out-of-pocket expenses (including the reasonable and documented fees and disbursements
of a single counsel to JPMS) incurred by them in connection with the offering contemplated by this
Agreement; provided, that the Company will not be obligated to reimburse any expenses pursuant to
this Section 4(m)(ii) in excess of $125,000.
(n) With respect to the offering(s) contemplated hereby, that the Company will not offer
shares of its Common Stock or any other securities convertible into or exchangeable or exercisable
for shares of the Common Stock in a manner that violates the Act; the Company will not distribute
any offering material in connection with the offer and sale of the Shares, other than the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus and other materials
permitted by the Act or the rules and regulations promulgated thereunder.
(o) During each period commencing on the date of each Transaction Notice and ending after the
close of business on the Settlement Date for the related Agency Transaction, 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, any shares of its Common
Stock or any securities convertible into or exercisable or exchangeable for such shares or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of such shares, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of shares or such other securities, in cash or otherwise,
without the prior written consent of JPMS, except with respect to Shares to be sold hereunder or
under any Terms Agreement, Alternative Distribution Agreement, or Alternative Terms Agreement,
issuances of Shares pursuant to the conversion or exchange of convertible or exchangeable
securities pursuant to the contractual terms of those securities or the exercise of warrants or
options or vesting of restricted stock units, in each case outstanding on the date hereof, sales of
Common Stock under the Company’s Dividend Reinvestment and Direct Stock
- 26 -
Purchase Plan, grants of
Common Stock, employee stock options or restricted stock units pursuant to the terms of a plan in
effect on the date hereof, issuances of Shares pursuant to the exercise of such options or the
exercise of any other employee stock options outstanding on the date hereof. Any lock-up provisions
relating to a Principal Transaction shall be set forth in the applicable Terms Agreement.
(p) The Company will, pursuant to reasonable procedures developed in good faith, retain copies
of each Permitted Free Writing Prospectus that is not filed with the Commission in accordance with
Rule 433 under the Act.
(q) To use its commercially reasonable efforts to cause the Shares to be listed on the
Exchange.
(r) That it consents to JPMS trading in the Common Stock for JPMS’s own account and for the
account of its clients at the same time as sales of the Shares occur pursuant to this Agreement.
5. Execution of Agreement. JPMS’s obligation to execute and deliver this Agreement shall be
subject to the satisfaction of the following conditions in connection with and on the date of the
execution of this Agreement:
(a) the Company shall have delivered to JPMS:
(i) an officer’s certificate signed by two of its executive officers certifying as to the
matters set forth in Exhibit C hereto;
(ii) opinions and negative assurance letter of Barack Xxxxxxxxxx Xxxxxxxxx & Xxxxxxxxx LLP,
counsel for the Company, addressed to JPMS and dated the date of this Agreement, in the form of
Xxxxxxxx X-0, X-0 and D-3 hereto. 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;
(iii) an opinion of McGuireWoods LLP, special Maryland counsel to the Company, addressed to
JPMS and dated the date of this Agreement, in the form of Exhibit E hereto;
(iv) a “comfort” letter of PricewaterhouseCoopers LLP, addressed to the Agents and dated the
date of this Agreement, addressing such matters as the Agents may reasonably request;
(v) evidence reasonably satisfactory to JPMS and its counsel that the Shares have been
approved for listing on the Exchange, subject only to notice of issuance on or before the date
hereof;
- 27 -
(vi) resolutions duly adopted by the Company’s board of directors, and certified by an officer
of the Company, authorizing the Company’s execution of this Agreement and the consummation by the
Company of the transactions contemplated hereby, including the issuance of the Shares; and
(vii) such other documents as JPMS shall reasonably request; and
(b) JPMS shall have received an opinion and negative assurance letter of Xxxxxxxx Chance US
LLP, counsel to the Agents, addressed to the Agents and dated the date of this Agreement,
addressing such matters as the Agents may reasonably request. 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
Agents 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.
6. Additional Covenants of the Company and the Operating Partnership. The Company and the
Operating Partnership, jointly and severally, further covenant and agree with JPMS as follows:
(a) Each acceptance of a Transaction Notice by the Company and each execution and delivery by
the Company of a Terms Agreement shall be deemed to be (i) an affirmation that the representations,
warranties and agreements of the Company and the Operating Partnership herein contained and
contained in any certificate delivered to JPMS pursuant hereto are true and correct at such Time of
Acceptance or the date of such Terms Agreement, as the case may be, and (ii) an undertaking that
such representations, warranties and agreements will be true and correct on any applicable Time of
Sale and Settlement Date, as though made at and as of each such time (it being understood that such
representations, warranties and agreements shall relate to the Registration Statement, the
Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such
Transaction Notice or Terms Agreement, as the case may be).
(b) Each time that (i) the Registration Statement, the Prospectus or any Permitted Free
Writing Prospectus shall be amended or supplemented (including, except as noted in the proviso at
the end of this Section 6(b), by the filing of any Incorporated Document, but excluding any
prospectus supplement filed pursuant to Section 4(b) hereof), (ii) there is a Principal Settlement
Date pursuant to a Terms Agreement, or (iii) otherwise as JPMS shall reasonably request, provided
that JPMS shall not make such a request during periods that the Company is not proposing Agency
Transactions to JPMS (each date referred to clauses (i), (ii) and (iii) above, a “Bring-Down
Delivery Date”), the Company shall, unless JPMS agrees otherwise, furnish or cause to be furnished
to JPMS a certificate, dated and delivered as of the applicable Bring-Down Delivery Date, of the
same tenor as the certificate referred to in Section (a)(i) hereof, modified as necessary to relate
to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended
and supplemented to the time of delivery of such certificate, or, in lieu of such certificate, a
certificate to the effect that the statements contained in the certificate referred to in Section
5(a)(i) hereof furnished to JPMS are true and correct as of such Bring-Down Delivery Date as though
made at and as of such date (except that such statements shall be
- 28 -
deemed to relate to the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and
supplemented to the time of delivery of such certificate); provided, however, that the filing of a
Current Report on Form 8-K will not constitute a Bring-Down Delivery Date unless (A) (x) such
Current Report on Form 8-K is filed at any time during which either a Transaction Notice is binding
and the Company has not suspended the use thereof (and prior to the settlement of the Shares
specified therein) or a prospectus relating to the Shares is required to be delivered under the Act
and (y) JPMS has requested that such date be deemed to be a Bring-Down Delivery Date based upon the
reasonable judgment of JPMS that the event or events reported in such Current Report on Form 8-K
has a material adverse effect on 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 780 in service properties owned, directly or indirectly, by the Company taken
as a whole, or otherwise restates historical financial statements or contains financial statements
required by Rules 3-05 or 3-14 of Regulation S-X or (B) such Current Report on Form 8-K is required
pursuant to Section 2(i).
(c) Each Bring-Down Delivery Date, the Company shall, unless JPMS agrees otherwise, cause to
be furnished to JPMS (A) the written opinions and negative assurance letter of Barack Xxxxxxxxxx
Xxxxxxxxx & Xxxxxxxxx LLP, counsel to the Company and of McGuireWoods LLP, special Maryland counsel
to the Company, each dated and delivered as of the applicable Bring-Down Delivery Date, of the same
tenor as the opinions and letter referred to in Sections 5(a)(ii) and 5(a)(iii) hereof,
respectively, but modified as necessary to relate to the Registration Statement, the Prospectus or
any Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such
opinions and letter, or, in lieu of such opinions and letter, such counsel and Maryland counsel
shall furnish JPMS with letters substantially to the effect that JPMS may rely on the opinions and
letter referred to in Sections 5(a)(ii) and 5(a)(iii), furnished to JPMS, to the same extent as
though they were dated the date of such letters authorizing reliance (except that statements in
such last opinions shall be deemed to relate to the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus as amended and supplemented to the time of delivery of such
letters authorizing reliance).
(d) Each Bring-Down Delivery Date, the Company shall, unless JPMS agrees otherwise, cause
PricewatershouseCoopers LLP to furnish to JPMS a “comfort” letter, dated and delivered as of the
applicable Bring-Down Delivery Date, of the same tenor as the letter referred to in Section
5(a)(iv) hereof, but modified to relate to the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus as amended and supplemented to the date of such letter.
(e) (i) No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose or pursuant to Section 8A under the Act shall be pending
before or threatened by the Commission at the time the Company accepts a Transaction Notice; the
Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the
Commission under the Act (in the case of an Permitted Free Writing Prospectus, to the extent
required by Rule 433 under the Act); and all requests by the Commission for additional information
shall have been complied with to the satisfaction of JPMS and no suspension of the qualification of
the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes, will have occurred and be in effect at the time the Company
accepts a Transaction Notice; and (ii) the Registration Statement, the
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Prospectus or any Permitted
Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading at the time the Company
accepts a Transaction Notice.
(f) The Company shall reasonably cooperate with any reasonable due diligence review requested
by JPMS or its counsel from time to time in connection with the transactions contemplated hereby or
any Terms Agreement, including, without limitation, (i) at the commencement of each intended
Purchase Date and any Time of Sale or Settlement Date, making available appropriate corporate
officers of the Company and, upon reasonable request, representatives of PricewatershouseCoopers
LLP for an update on diligence matters with representatives of JPMS and (ii) at each Bring-Down
Delivery Date or otherwise as JPMS may reasonably request, providing information and making
available documents and appropriate corporate officers of the Company and representatives of
PricewatershouseCoopers LLP for one or more due diligence sessions with representatives of JPMS and
its counsel.
(g) The Company shall disclose, in its quarterly reports on Form 10-Q, in its annual report on
Form 10-K and, if requested by JPMS, in prospectus supplements to be filed by the Company from time
to time, including in accordance with Section 4(b), the number of the Shares sold through the
Agents under this Agreement and any Terms Agreement, the net proceeds to the Company from the sale
of the Shares and the compensation paid by the Company with respect to sales of the Shares pursuant
to this Agreement during the relevant quarter or such shorter period determined by the Company, as
the case may be.
All opinions, letters and other documents referred to in Sections 6(b) through (d) above shall
be reasonably satisfactory in form and substance to JPMS. JPMS will provide the Company with such
notice (which may be oral, and in such case, will be confirmed via e-mail or facsimile as soon as
reasonably practicable thereafter) as is reasonably practicable under the circumstances when
requesting an opinion, letter or other document referred to in Sections 6(b) through (d) above.
7. Conditions of JPMS’s Obligation. JPMS’s obligation to solicit purchases on an agency basis
for the Shares or otherwise take any action pursuant to a Transaction Notice that has been accepted
by the Company and to purchase the Shares pursuant to any Terms Agreement shall be subject to the
satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on
the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect
to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of
the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company and the
Operating Partnership herein contained or contained in any certificate of an officer or officers of
the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
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(ii) The Company and the Operating Partnership shall have performed and observed their
covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in
all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency
Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the
time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement
Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section
3(j) hereof shall have occurred or shall exist, which event or condition is not described in any
Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus
(excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment
of JPMS makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Shares on the applicable Settlement Date on the terms and in the manner contemplated by this
Agreement or any Terms Agreement, as the case may be, any Permitted Free Writing Prospectus and the
Prospectus.
(v) Subsequent to the relevant Time of Acceptance, (A) no downgrading shall have occurred in
the rating accorded any securities of or guaranteed by the Company, the Operating Partnership or
any of their subsidiaries by any “nationally recognized statistical rating organization,” as such
term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (B) no such
organization shall have publicly announced that it has under surveillance or review, or has changed
its outlook with respect to, its rating of any securities of or guaranteed by the Company, the
Operating Partnership or any of their subsidiaries (other than an announcement with positive
implications of a possible upgrading) in each case that has not been described in any Permitted
Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Notice or pursuant to a Terms
Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to
notice of issuance.
(vii) (A) 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 relevant Settlement Date, prevent the issuance or sale of the
Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued
that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in
effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before
or threatened by the Commission and no notice of objection of the Commission to the use of the
Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the
Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed
with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the
extent required by Rule 433 under the Act); (C) all requests by the Commission for additional
information shall have been complied with to the satisfaction of
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JPMS; and (D) no suspension of the
qualification of the Shares for offering or sale in any jurisdiction, and no initiation or
threatening of any proceedings for any of such purposes, will have occurred and be in effect. The
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain
an untrue statement of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading at the time the Company accepts a Transaction Notice.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted
Free Writing Prospectus shall have been filed to which JPMS shall have reasonably objected in
writing.
(b) At every Bring-Down Delivery Date, JPMS shall have received the officer’s certificates,
opinions and negative assurance letters of counsel and “comfort” letters and other documents
provided for under Sections 6(b) through (d), inclusive.
8. Termination.
(a) (i) The Company may terminate this Agreement in its sole discretion at any time upon prior
written notice to JPMS. Any such termination shall be without liability of any party to any other
party, except that (A) with respect to any pending sale, the obligations of the Company, including
in respect of compensation of JPMS, shall remain in full force and effect notwithstanding such
termination; and (B) the provisions of Sections 3, 4 (except that if no Shares have been previously
sold hereunder or under any Terms Agreement, only Section 4(m)), 9, 13, 14, 15 and 18 of this
Agreement shall remain in full force and effect notwithstanding such termination.
(ii) In the case of any sale by the Company pursuant to a Terms Agreement, the obligations of
the Company pursuant to such Terms Agreement and this Agreement may not be terminated by the
Company without the prior written consent of JPMS.
(b) (i) JPMS may terminate this Agreement in its sole discretion at any time upon giving prior
written notice to the Company. Any such termination shall be without liability of any party to any
other party, except that the provisions of Sections 3, 4 (except that if no Shares have been
previously sold hereunder or under any Terms Agreement, only Section 4(m)), 9, 13, 14, 15 and 18 of
this Agreement shall remain in full force and effect notwithstanding such termination.
(ii) In the case of any purchase by JPMS pursuant to a Terms Agreement, the obligations of
JPMS pursuant to such Terms Agreement shall be subject to termination at any time prior to or at
the Principal Settlement Date, if, (A) since the time of execution of the Terms Agreement or the
respective dates as of which information is given in the Registration Statement, the Prospectus and
any Permitted Free Writing Prospectus, (i) trading generally shall have been materially suspended
or materially limited on or by, as the case may be, any of the NYSE, the American Stock Exchange,
the NASDAQ Global Select Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade (ii) trading of any securities of or guaranteed by the
Company and the Operating Partnership shall have been
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suspended on any exchange or in any over-the
counter market, (iii) a general moratorium on commercial banking activities in New York shall have
been declared by either federal or New York state authorities, (iv) there shall have occurred any
attack on, or 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 each case, in JPMS’s
judgment, is material and adverse or (v) any material disruption of settlements of securities or
clearance services in the United States that would materially impair settlement and clearance with
respect to the Shares and (B) in the case of any of the events specified in clauses (A)(i) through
(v), such event singly or together with any other such event specified in clauses (A)(i) through
(v) makes it, in JPMS’s judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus. If JPMS elects to terminate its obligations pursuant to this
Section 8(b)(ii), the Company shall be notified promptly in writing.
(c) This Agreement shall remain in full force and effect until the earlier of (A) termination
of the Agreement pursuant to Section 8(a) or 8(b) above or otherwise by mutual written agreement of
the parties, (B) such date that Shares equal to the Maximum Amount have been sold in accordance
with the terms of this Agreement, any Terms Agreement, any Alternative Distribution Agreement and
any Alternative Terms Agreement, and (C) December 31, 2010, in each case except that the provisions
of Section 3, 4 (except that if no Shares have been previously sold hereunder or under any Terms
Agreement, only Section 4(m)), 9, 13, 14, 15 and 18 of this Agreement shall remain in full force
and effect notwithstanding such termination.
(d) Any termination of this Agreement shall be effective on the date specified in such notice
of termination; provided that such termination shall not be effective until the close of business
on the date of receipt of such notice by JPMS or the Company, as the case may be. If such
termination shall occur prior to the Settlement Date for any sale of Shares, such sale shall settle
in accordance with the provisions of Section 2 hereof.
9. Indemnity and Contribution.
(a) The Company and the Operating Partnership, jointly and severally, agree to indemnify and
hold harmless JPMS, its affiliates, directors and officers and each person, if any, who controls
JPMS within the meaning of Section 5 of the Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without limitation, reasonable out
of pocket legal fees and other expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred), 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 or (ii) any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto), any Permitted Free Writing Prospectus (or
any amendment or supplement thereto), 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 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 JPMS furnished to the Company in
- 33 -
writing by JPMS expressly for use therein,
it being understood and agreed that the only such information furnished by JPMS consists of the
information described as such in subsection (b) below.
(b) JPMS agrees to indemnify and hold harmless the Company and the Operating Partnership,
their directors and officers who signed the Registration Statement and each person, if any, who
controls the Company or the Operating Partnership within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, 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 JPMS furnished to the Company in
writing by JPMS expressly for use in the Registration Statement, the Basic Prospectus, the
Prospectus (or any amendment or supplement thereto), any Permitted Free Writing Prospectus, it
being understood and agreed upon that such information shall consist solely of the following: the
third paragraph under the heading “Plan of Distribution” in the Prospectus Supplement.
(c) 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 indemnification
may be sought pursuant to either Section 9(a) or 9(b) above, such person (the “Indemnified Person”)
shall promptly notify the person against whom such indemnification 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 this Section 9 except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) 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 this Section 9. 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 (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 9 that the Indemnifying Person may designate
in such proceeding and shall pay the fees and expenses of such counsel related to such proceeding,
as incurred. 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; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) included 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 and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable 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 paid or reimbursed as they are incurred. Any such separate firm for JPMS, its affiliates,
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directors and officers and any control persons of JPMS shall be designated in writing by JPMS and
any such separate firm for the Company and the Operating Partnership, their directors and officers
who signed the Registration Statement and any control persons of the Company and the Operating
Partnership 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 each Indemnified Person from and against any
loss or liability by reason of such settlement or judgment. 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
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying
Person to reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this
Section 9(c), the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its prior written consent if (i) such settlement is entered into more
than 30 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement.
(d) If the indemnification provided for in Sections 9(a) and 9(b) above is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such Sections, 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 (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Operating Partnership, on the one hand, and JPMS, on the other, from the offering of the Shares or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Operating Partnership, on the one hand, and
JPMS, 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 JPMS,
on the other, shall be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company and the Operating Partnership from the sale of the
Shares and the total underwriting discounts and commissions received by JPMS in connection
therewith bear to the aggregate Gross Sales Price. The relative fault of the Company and the
Operating Partnership, on the one hand, and JPMS, 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 JPMS, on the other, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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(e) The Company and the Operating Partnership and JPMS agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 Section 9(d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in Section 9(d) above 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 any such action or claim. Notwithstanding the provisions of
this Section 9, in no event shall JPMS be required to contribute any amount in excess of the amount
by which the total underwriting discounts and commissions received by JPMS with respect to the
offering of the Shares exceeds the amount of any damages that JPMS has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 9 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.
10. Notices. All notices and other communications under this Agreement and any Terms
Agreement shall be in writing and shall be deemed to have been duly given if mailed or transmitted
and confirmed by any standard form of communication, and, if to JPMS, shall be sufficient in all
respects if delivered or sent to X.X. Xxxxxx Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, to the attention of the Equity Syndicate Desk (facsimile number (000) 000-0000), the
Special Equities Group (facsimile number 212-622-0398), Xxxx X. Xxxx (facsimile number (000)
000-0000; e-mail xxxx.x.xxxx@xxxxxxxx.xxx) and Xxxx Xxxxxx (facsimile number (000) 000-0000; email
xxxx.xxxxxx@xxxxxxxx.xxx), and, if to the Company, shall be sufficient in all respects if delivered
or sent to the Company at the offices of the Company at 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. Notwithstanding the foregoing, Transaction Notices shall be delivered
to the Company via e-mail to Xxxxx Xxxxx at xxxxxx@xxxxxxxxxxxxxxx.xxx, with a copy to Xxxx Xxxxxxx
at xxxxxxxx@xxxxxxxxxxxxxxx.xxx, and confirmed by telephone at (312) 344-4300 ext. 4380, and an
acceptance of a Transaction Notice shall be delivered to JPMS via facsimile or e-mail to Xxxx X.
Xxxx ((000) 000-0000; email xxxx.x.xxxx@xxxxxxxx.xxx), Xxxxx Xxxxxxx ((000) 000-0000; email
xxxxx.xxxxxxx@xxxxxxxx.xxx) and Xxxxxxx X. Xxxx ((000) 000-0000; email
xxxxxxx.x.xxxx@xxxxxxxx.xxx).
11. No Fiduciary Relationship. Each of the Company and the Operating Partnership acknowledge
and agree that JPMS is acting solely in the capacity of an arm’s length contractual counterparty to
the Company and the Operating Partnership with respect to the offering of Shares contemplated
hereby (including in connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company and the Operating Partnership or any other
person. Additionally, JPMS is not advising the Company and the Operating Partnership or any other
person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The
Company and the Operating Partnership shall consult
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with their own advisors concerning such matters
and shall be responsible for making their own independent investigation and appraisal of the
transactions contemplated hereby, and JPMS shall have no responsibility or liability to the Company
and the Operating Partnership with respect thereto. Any review by JPMS of the Company and the
Operating Partnership, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of JPMS and shall not be on behalf of the
Company and the Operating Partnership.
12. Adjustments for Stock Splits. The parties acknowledge and agree that all share related
numbers contained in this Agreement and any Transaction Notice shall be adjusted to take into
account any stock split effected with respect to the Shares.
13. Governing Law; Construction.
(a) This Agreement, any Terms Agreement and any claim, controversy, counterclaim or dispute of
any kind or nature whatsoever arising under or in any way related to this Agreement or any Terms
Agreement (each a “Claim”), directly or indirectly, shall be governed by, and construed in
accordance with, the laws of the State of New York.
(b) The Section headings in this Agreement and any Terms Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement or any Terms Agreement.
14. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have nonexclusive jurisdiction over the adjudication of such matters, and
the Company and the Operating Partnership consent to the jurisdiction of such courts and personal
service with respect thereto. Each of JPMS and the Company, on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates and the Operating
Partnership, waives all right to trial by jury in any action, proceeding or counterclaim, whether
based upon contract, tort or otherwise, in any way arising out of or relating to this Agreement.
The Company and the Operating Partnership agree that a final and non-appealable judgment in any
such action, proceeding or counterclaim brought in any such court shall be conclusive and binding
upon the Company and the Operating Partnership and may be enforced in any other courts in the
jurisdiction of which the Company and the Operating Partnership are or may be subject, by suit upon
such judgment.
15. Parties in Interest. The agreements set forth herein and in any Terms Agreement have been
and are made solely for the benefit of JPMS, the Company and the Operating Partnership and, to the
extent provided in Section 9 hereof, the controlling persons, directors and officers referred to in
such section, and their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or corporation (including
a purchaser, as such purchaser, from JPMS) shall acquire or have any right under or by virtue of
this Agreement or any Terms Agreement.
16. Counterparts. This Agreement and any Terms Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of
- 37 -
telecommunication), each of which shall
be an original and all of which together shall constitute one and the same instrument.
17. Successors and Assigns. This Agreement shall be binding upon JPMS, the Company, the
Operating Partnership and their successors and assigns and any successor or assign of any
substantial portion of the Company’s, the Operating Partnership’s and JPMS’s respective businesses
and/or assets.
18. Survival. The respective indemnities, rights of contribution, representations, warranties
and agreements of the Company, the Operating Partnership and JPMS contained in this Agreement or
made by or on behalf of the Company, the Operating Partnership or JPMS pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and payment for the
Shares 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 JPMS.
19. Certain Defined Terms. For purposes of this Agreement, except where otherwise expressly
provided, the term “affiliate” has the meaning set forth in Rule 405 under Act.
20. Amendments or Waivers. 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.
21. Miscellaneous. JPMS, an indirect, wholly owned subsidiary of JPMorgan Chase & Co., is not
a bank and is separate from any affiliated bank, including any U.S. branch or agency of JPMorgan
Chase Bank. Because JPMS is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to sales and purchases
of securities. Shares sold, offered or recommended by JPMS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency of JPMorgan
Chase Bank, and are not otherwise an obligation or responsibility of a branch or agency of JPMorgan
Chase Bank.
A lending affiliate of JPMS may have lending relationships with issuers of securities
underwritten or privately placed by JPMS. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or privately placed by JPMS
will disclose the existence of any such lending relationships and whether the proceeds of the issue
will be used to repay debts owed to affiliates of JPMS.
JPMS and one or more of its affiliates may make markets in the Common Stock or other
securities of the Company, in connection with which they may buy and sell, as agent or principal,
for long or short account, shares of the Common Stock or other securities of the Company, at the
same time that JPMS is acting as agent pursuant to this Agreement; provided that JPMS acknowledges
and agrees that any such transactions are not being, and shall not be deemed to have been,
undertaken at the request or direction of, or for the account of, the Company, and that the Company
has and shall have no control over any decision by JPMS and its affiliates to enter into any such
transactions.
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If the foregoing correctly sets forth the understanding among the Company, the Operating
Partnership and JPMS, please so indicate in the space provided below for the purpose, whereupon
this letter and your acceptance shall constitute a binding agreement among the Company, the
Operating Partnership and JPMS.
| Very truly yours, FIRST INDUSTRIAL REALTY TRUST, INC. |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President — Corporate Legal and Secretary | |||
| FIRST INDUSTRIAL, LP. |
||||
| By: | First Industrial Realty Trust, Inc., as its | |||
| sole general partner | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President — Corporate Legal and Secretary | |||
Accepted and agreed to as of the
date first above written:
date first above written:
| X.X. XXXXXX SECURITIES INC. |
|||
| By: | /s/ Xxxxx Xxxxxxx | ||
| Name: | Xxxxx Xxxxxxx | ||
| Title: | Executive Director | ||
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