First Industrial Realty Trust, Inc. 1,250,000 Shares Common Stock Underwriting Agreement
EXECUTION
COPY
First
Industrial Realty Trust, Inc.
1,250,000
Shares
Common
Stock
December
6,
2005
The
Underwriter Named on
Schedule
II Hereto
Ladies
and Gentlemen:
First
Industrial Realty Trust, Inc., a Maryland Corporation (the "Company"),
by
this agreement (the "Agreement") proposes
to issue and sell to you (the "Underwriter"),
1,250,000
shares
of common stock, par value $0.01 per share (the "Firm
Securities"),
and
also proposes to issue and sell to the Underwriter, at the option of the
Underwriter, an aggregate of not more than 187,500
additional shares ("Optional
Securities") of
its common stock as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "Securities."
The
Company and First Industrial, L.P., a Delaware limited partnership whose sole
general partner is the Company (the "Operating
Partnership"),
have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities
Act"),
a
registration statement (file number 333-117842) on Form S-3, including
the related prospectus (the "Base
Prospectus"),
relating to certain securities (the "Shelf
Securities") to
be issued from time to time by the Company or the Operating Partnership, as
the
case may be. The Company also has filed, or proposes to file, with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities (a "Prospectus
Supplement").
The
registration statement as amended to the date of this Agreement and including
any registration statement filed pursuant to Rule 462(b) under the
Securities Act (a "Rule 462(b) Registration
Statement") is
hereinafter referred to as the "Registration
Statement."
For
purposes of this Agreement, "Effective
Time"
with
respect to the Registration Statement means if the Company has advised the
Underwriter that it does not propose to amend such registration statement,
the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c). Any
reference in this Agreement to the Registration Statement, the Prospectus as
defined hereunder or any preliminary prospectus (a "preliminary
prospectus"),
as
the case may be, previously filed with the Commission pursuant to Rule 424
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules
and
regulations of the Commission thereunder (collectively, the "Exchange
Act") on
or before the date of this Agreement or the date of the Registration Statement
or the Prospectus, as the case may be; and any reference to "amend," "amendment"
or "supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Registration Statement
or the Prospectus, as the case may be, which are deemed to be incorporated
by
reference therein. "Registration
Statement" without reference to a time means the Registration Statement as
of
its Effective Time. "Registration Statement" as of any specified time means
the
Registration Statement in the form then
filed
with
the
Commission immediately prior to that time, including any amendment thereto
or
any document incorporated by reference therein and any prospectus deemed or
retroactively deemed to be a part thereof that has not been superseded or
modified. For purposes of the previous sentence, information contained in a
form
of prospectus or prospectus supplement that is deemed retroactively to be a
part
of the Registration Statement pursuant to Rule 430A shall be considered to
be included in the Registration Statement as of the time specified in
Rule 430A. "Statutory
Prospectus"
as of
any specified time means the prospectus included in the Registration Statement
immediately prior to that time, including any document incorporated by reference
therein and any prospectus supplement deemed or retroactively deemed to be
a
part thereof that has not been superseded or modified. For purposes of the
preceding sentence, information contained in a form of prospectus that is deemed
retroactively to be a part of the Registration Statement pursuant to
Rule 430A shall be considered to be included in the Statutory Prospectus as
of the actual time that form of prospectus is filed with the Commission pursuant
to Rule 424(b) ("Rule 424(b)") under
the Securities Act. "Prospectus"
means
the Statutory Prospectus that discloses the public offering price and other
final terms of the Securities and otherwise satisfies Section 10(a) of
the Securities Act. "Issuer
Free Writing Prospectus"
means
any "issuer free writing prospectus," as defined in Rule 433, relating to
the Securities in the form filed or required to be filed with the Commission
or,
if not required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g). "General
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is intended for general distribution
to
prospective investors, as evidenced by its being specified as such in
Schedule
I
to this
Agreement. "Limited
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus. "Applicable
Time"
means
8:45 a.m. (Eastern time) on the date of this Agreement. All references
in this Agreement to financial statements and schedules and other information
which is "contained," "included," "described" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in
the
Registration Statement or Prospectus, as the case may be.
The
Company hereby agrees with the Underwriter as follows:
1. The
Company agrees to issue and sell the Securities to the Underwriter as
hereinafter provided, and the Underwriter, on the basis of the representations,
warranties and agreements herein contained, but subject to the conditions
hereinafter stated, agrees to purchase from the Company the Securities at a
purchase price per share of $39.26
(the
"Purchase
Price").
2. The
Company understands that the Underwriter intends (i) to make a public
offering (the "Offering") of
the Securities and (ii) initially to offer the Securities upon the terms to
be set forth in the Prospectus.
3. Payment
for the Firm Securities shall be made to the Company or to its order in
immediately available funds on the date and at the time and place set forth
in
Schedule II
hereto
in the section entitled "Closing Date and Time of Delivery" (or at such other
time and place on the same or such other date, not later than the 7th
Business
Day thereafter, as you and the Company may agree in writing). Such payment
will
be made upon delivery to the Underwriter of the Securities registered in such
names and in such denominations as you shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable
in
connection with transfer to the Underwriter duly paid by the Company. As used
herein, the term "Business
Day"
means
any day other than a day on which banks are permitted or required to be closed
in New York City or the City of Chicago. The time and date of such payment
and
delivery with respect to the Firm Securities are referred to herein as the
"First
Closing Date."
The
Firm Securities will be delivered through the book-entry facilities of The
Depository Trust Company ("DTC") and
will be made available for inspection by you by 1:00 p.m. New York City time
two
Business Days prior to the First Closing Date at such place in New York City
as
you, DTC and the Company shall agree.
2
4. (a)
In
addition, upon written notice from the Underwriter given to the Company not
more
than 30 days subsequent to the date of the Prospectus, the Underwriter may
purchase all or less than all of the Optional Securities at the purchase price
per Share to be paid for the Firm Securities. The Company agrees to sell to
the
Underwriter the number of shares of Optional Securities specified in such
notice, and the Underwriter agrees to purchase such Optional Securities. Such
Optional Securities shall be purchased by you only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right
to
purchase the Optional Securities or any portion thereof may be exercised once
and to the extent not previously exercised may be surrendered and terminated
at
any time upon notice by the Underwriter to the Company.
(b) The
time
for the delivery of and payment for the Optional Securities (the "Optional
Closing Date") which
may be the First Closing Date (the First Closing Date and each Optional Closing
Date, if any, being sometimes referred to as a "Closing
Date"),
shall
be determined by the Underwriter but shall be not later than five full Business
Days after written notice of election to purchase Optional Securities is
given.
(c) Payment
for the Optional Securities shall be made to the Company or to its order in
immediately available funds on the date and at the time and place set forth
in
the written notice set forth in Section 4(a) above (or at such other
time and place on the same or such other date, not later than the 7th
Business
Day thereafter, as you and the Company may agree in writing). Such payment
will
be made upon delivery to the Underwriter of the Securities registered in such
names and in such denominations as you shall request not less than two full
Business days prior to the date of delivery, with any transfer taxes payable
in
connection with transfer to the Underwriter duly paid by the Company. The
Optional Securities will be delivered through the book entry facilities of
DTC
and will be made available for inspection by you by 1:00 p.m.
New York
City time two Business Days prior to the Optional Closing Date at such place
in
New York City as you, DTC and the Company shall agree.
5. Each
of
the Company and the Operating Partnership severally covenants and agrees with
the Underwriter as follows:
(a) In
respect of the offering of the Securities, the Company will (i) prepare a
Prospectus Supplement setting forth the number of Securities covered thereby
and
their terms not otherwise specified in the Base Prospectus pursuant to which
the
Securities are being issued, the name of the Underwriter and the number of
Securities which it has agreed to purchase, the price at which the Securities
are to be purchased by the Underwriter from the Company, the initial public
offering price, the selling concession and reallowance, if any, and such other
information as the Underwriter and the Company deem appropriate in connection
with the offering of the Securities, (ii) file the Statutory Prospectus in
a form approved by you pursuant to Rule 424
under
the Securities Act within the applicable time period prescribed by such rule
for
such filing and (iii) furnish copies of the Statutory Prospectus to the
Underwriter and to such dealers as you shall specify in New York City prior
to
10:00 A.M., New York City time as soon as practicable after the date of
this Agreement in such quantities as you may reasonably request. The
Company has complied and will comply with Rule 433;
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(b) At
any
time when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of Securities, the Company will advise you promptly
and, if requested by you, confirm such advice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus or other supplement
or amendment to the Prospectus to be filed pursuant to the Securities Act,
(iii) the receipt of any comments from the Commission relating to the
Registration Statement, any preliminary prospectus, the Prospectus or any of
the
transactions contemplated by this Agreement, (iv) any request by the
Commission for post-effective amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(v) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any jurisdiction, or
the
initiation of any proceeding for such purposes, and (vi) the happening of
any event which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal or lifting of such order at the earliest possible
time;
(c) The
Company will furnish to you, without charge, such number of conformed copies
of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits and documents incorporated by reference,
as you may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Commission's Electronic Data Gathering and Retrieval
System ("XXXXX"),
except to the extent permitted by Regulation S-T;
(d) At
any
time when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of Securities, not to file any amendment to the
Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus of which
you
shall not previously have been advised or to which you or counsel for the
Underwriter shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration
Statement or amendment or supplement to the Prospectus which, in the opinion
of
counsel for the Underwriter, may be necessary in connection with the
distribution of the Securities by you, and to use its reasonable best efforts
to
cause the same to become promptly effective. If applicable, the Prospectus
and
any amendments or supplements thereto furnished to the Underwriter will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T;
(e) If,
at
any time when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of Securities, any event shall occur as a result of
which, in the opinion of counsel for the Underwriter, it becomes necessary
to
amend or supplement the Prospectus in order to make the statements therein,
in
the light of the circumstances existing when the Prospectus is delivered to
a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, the Company will forthwith prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus
(in
form and substance reasonably satisfactory to counsel for the
Underwriter) so that the statements in the Prospectus, as so amended or
supplemented, will not contain an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances existing when it is so delivered, not misleading,
or
so that the Prospectus will comply with any law, and to furnish to each
Underwriter and to such dealers as you shall specify, such number of copies
thereof as such Underwriter or dealers may reasonably request;
4
(f) The
Company will use its reasonable best efforts, in cooperation with the
Underwriter, to qualify, register or perfect exemptions for the Securities
for
offer and sale by the Underwriter under the applicable state securities, Blue
Sky and real estate syndication laws of such jurisdictions as you may reasonably
request; provided,
however,
the
Company will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders. In each jurisdiction in which the Securities have been so
qualified or registered, the Company will use all reasonable efforts to file
such statements and reports as may be required by the laws of such jurisdiction,
to continue such qualification or registration in effect for so long a period
as
the Underwriter may reasonably request for the distribution of the Securities
and to file such consents to service of process or other documents as may be
necessary in order to effect such qualification or registration; provided,
however,
the
Company will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders;
(g) To
make
generally available to the Company's stockholders as soon as reasonably
practicable but not later than sixty days after the close of the period covered
thereby (90 days in the event the close of such period is the close of the
Company's fiscal year), an earning statement (in form complying with the
provisions of Rule 158
of
the Securities Act) covering a period of at least twelve months after the
effective date of the Registration Statement (but in no event commencing later
than 90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Securities Act, and, if required by Rule 158
of
the Securities Act, to file such statement as an exhibit to the next periodic
report required to be filed by the Company under the Exchange Act covering
the
period when such earning statement is released;
(h) During
the period when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of the Securities, to file all documents required
to be
filed by it with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act;
(i) The
Company will pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Securities Act of
the
Registration Statement and any amendment thereto (including financial statements
and exhibits), the Prospectus and all amendments and supplements to any of
them
and
for
expenses incurred for preparing, printing and distributing any Issuer Free
Writing Prospectuses to investors or prospective investors prior
to
or during the period specified in Section 5(e), (ii) the printing and
delivery of this Agreement, and any Blue Sky Memorandum, (iii) the
qualification or registration of the Securities for offer and sale under the
state securities, Blue Sky or real estate syndication laws of the several states
in accordance with Section 5(f) hereof, (iv) the fee of and the
filings and clearance, if any, with the National Association of Securities
Dealers, Inc. (the "NASD") in
connection
5
with
the
Offering, (v) furnishing such copies of the Registration Statement, the
preliminary prospectus, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale
of
the Securities by the Underwriter or by dealers to whom Securities may be sold,
(vi) the costs and charges of any transfer agent or registrar,
(vii) the preparation, issuance and delivery of certificates for the
Securities to the Underwriter, (viii) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors,
(ix) any transfer taxes imposed on the sale by the Company of the
Securities to the Underwriter and (x) the fees and disbursements of the
Company's counsel and accountants;
(j) The
Company will use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior
to
each Closing Date and to satisfy all conditions precedent to the delivery of
the
Securities;
(k) The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Prospectus Supplement under "Use of
Proceeds;"
(l) The
Company will use its best efforts to continue to qualify as a real estate
investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"),
unless the Company's board of directors determines that it is no longer in
the
best interests of the Company to be so qualified;
(m) The
Company will not, at any time, directly or indirectly, take any action intended,
or which might reasonably be expected to cause or result in, or which will
constitute stabilization of the price of the Securities to facilitate the sale
or resale of any Securities in violation of the Securities Act;
(n) The
Company will cooperate with the Underwriter and use commercially reasonable
efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of DTC; and
(o) For
the
period specified below (the "Lock-Up
Period"),
the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of,
directly or indirectly, or file with the Commission a registration statement
under the Securities Act relating to, any additional shares of its Securities
or
securities convertible into or exchangeable or exercisable for any shares of
its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Underwriter except issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options or the exercise
of any other employee stock options outstanding on the date hereof. The
initial Lock-Up Period will commence on the date hereof and will continue and
include the date 45 days
after
the date of the Prospectus or such earlier date that the
Underwriter consents
to in writing; provided,
however, that if (1) during the last 17 days of the initial Lock-Up Period,
the Company releases earnings results or material news or a material event
relating to the Company occurs or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be extended until
the
expiration of the 18-day period beginning on the date of release of the earnings
results or the occurrence of the materials news or material event, as
applicable, unless the Underwriter waives, in writing, such extension. The
Company will provide the Underwriter with notice of any announcement described
in clause (2) of the preceding sentence that gives rise to an extension of
the Lock-Up Period.
6
6. Free
Writing Prospectuses.
The
Company represents and agrees that, unless it obtains the prior consent of
the
Underwriter, and the Underwriter represents and agrees that, unless it obtains
the prior consent of the Company, it has not made and will not make any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a "free writing prospectus,"
as
defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Underwriter is
hereinafter referred to as a "Permitted
Free Writing Prospectus."
The
Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an "issuer free writing prospectus," as
defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely Commission filing where required, legending and record
keeping.
7. The
Company and the Operating Partnership, jointly and severally, represent and
warrant to each Underwriter as of the date hereof and each Closing Date
that:
(a) The
Company and the Operating Partnership meet the requirements for use of
Form S-3, and the Registration Statement has been declared effective by the
Commission;
(b) The
Registration Statement and the Prospectus, including the financial statements,
schedules and related notes included in the Prospectus as of the date hereof
and
at the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement or Rule 462(b) Registration
Statement becomes effective or any amendment or supplement to the Prospectus
is
filed with the Commission, did or will comply in all material respects with
all
applicable provisions of the Securities Act and will contain all statements
required to be stated therein in accordance with the Securities Act. The
Prospectus, including the financial statements, schedules and related notes
included or incorporated by reference in the Prospectus as of the date hereof
and at the time the Registration Statement became effective, and at each Closing
Date, and when any post-effective amendment to the Registration Statement or
Rule 462(b) Registration
Statement becomes effective or any amendment or supplement to the Prospectus
is
filed with the Commission, did or will comply in all material respects with
all
applicable provisions of the Securities Act and will contain all statements
required to be stated therein in accordance with the Securities Act. On the
date
the Registration Statement was declared effective, on the date hereof, on the
date of filing of any Rule 462(b) Registration
Statement and on each Closing Date no part of the Registration Statement or
any
amendment did or will contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of its date, on the
date of filing of any Rule 462(b) Registration
Statement and at each Closing Date, the Prospectus did not and will not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company and the Operating Partnership will have complied or will comply
with
the requirements of Rule 111
under
the Securities Act relating to the payment of filing fees therefor. The
foregoing representations and warranties in this Section 7(b) do not
apply to any statements or omissions made in reliance on and in conformity
with
information relating to the Underwriter furnished in writing to the Company
or
the Operating Partnership by the Underwriter specifically for inclusion in
the
Registration Statement or Prospectus or any amendment or supplement thereto.
Neither the Company nor the Operating Partnership has distributed, and prior
to
the later of the First Closing Date and the completion of the
7
distribution
of the Securities, will not distribute, any offering material in connection
with
the offering or sale of the Securities other than the Registration Statement,
the preliminary prospectus, the Prospectus or any other materials, if any,
permitted by the Securities Act (which were disclosed to the Underwriter and
the
Underwriter's counsel and are listed on Schedule I
hereof
other than documents referred to in clause (c) of
Section 7(f)).
(c) Any
preliminary prospectus supplements, filed pursuant to Rule 424
under
the Securities Act and each 462(b) Registration Statement, if any, complied
or will comply when so filed in all material respects with all applicable
provisions of the Securities Act; did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; each preliminary prospectus and the Prospectus delivered to the
Underwriter for use in connection with the offering of Securities will, at
the
time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(d) The
documents incorporated or deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the
time they were, or hereafter are, filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act,
and,
when read together with other information included in, and incorporated by
reference in, the Prospectus, at the time the Registration Statement became
effective, as of the date of the Prospectus and as of each Closing Date, or
during the period specified in Section 5(e) did not and will not
include an untrue statement of a material fact or omit to state a material
fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 7(d) do not apply to any statements or
omissions made in reliance on and in conformity with information relating to
any
Underwriter furnished in writing to the Company or the Operating Partnership
by
the Underwriter specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto;
(e) At
the
time of filing the Registration Statement and at the date of this Agreement,
each of the Company and the Operating Partnership was not and is not an
"ineligible issuer," as defined in Rule 405, including as a result of
(x) the Company, the Operating Partnership or any other subsidiary in the
preceding three years having been convicted of a felony or misdemeanor or having
been made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company or the Operating Partnership
in the preceding three years having been the subject of a bankruptcy petition
or
insolvency or similar proceeding, having had a registration statement be the
subject of a proceeding under Section 8 of the Securities Act or being the
subject of a proceeding under Section 8A of the Securities Act in
connection with the offering of the Securities, all as described in
Rule 405.
(f) As
of the
Applicable Time, neither (i) (a) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, (b) the
Statutory Prospectus, and (c) the documents mutually agreed to by the
Company and the Underwriter, considered together (collectively, the
"General
Disclosure Package"),
nor
(ii) any individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included any untrue
statement of a material fact or omitted to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply
to
statements in or omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the only
such
information furnished by the Underwriter consists of the information described
in the second paragraph of Section 8 hereof.
8
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Securities or until
any earlier date that the Company notified or notifies the Underwriter as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information then contained in the Registration
Statement or included or would include an untrue statement of a material fact
or
omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, (i) the Company has promptly notified or
will promptly notify the Underwriter and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission. The
foregoing two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use
therein, it being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in the second
paragraph of Section 8 hereof.
(h) The
Company has been duly organized and is validly existing as a corporation under
and by virtue of the laws of the State of Maryland, and is in good standing
with
the State Department of Assessments and Taxation of Maryland. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the Delaware Revised Uniform
Limited Partnership Act. Each of First Industrial Financing Partnership, L.P.
(the "Financing
Partnership"),
First
Industrial Securities, L.P. ("Securities,
L.P."),
First
Industrial Mortgage Partnership, L.P. (the "Mortgage
Partnership"),
First
Industrial Pennsylvania, L.P. ("FIP"),
First
Industrial Harrisburg, L.P. ("FIH") and
First Industrial Indianapolis, L.P. ("FII") (the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FIP, FIH
and
FII are referred to collectively herein as the "Partnership
Subsidiaries") has
been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of organization.
Each of First Industrial Securities Corporation ("FISC"),
First
Industrial Indianapolis Corporation ("FIIC"),
First
Industrial Finance Corporation ("FIFC"),
First
Industrial Mortgage Corporation ("FIMC"),
First
Industrial Development Services, Inc. ("FIDSI") and
First Industrial Pennsylvania Corporation ("FIPC"),
(FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to collectively herein
as
the "Corporate
Subsidiaries"),
FR
First Cal, LLC, ("FR
First Cal"),
FR
Bucks Property Holding, L.P. ("FR
Bucks"),
FR
Lehigh Property Holding, L.P. ("FR
Lehigh"),
FR
Aberdeen, LLC ("FR
Aberdeen"),
FR
Lackawanna Property Holding, LP ("FR
Lackawanna"),
FR
Park Plaza, LLC, ("FR
Park"),
First
Industrial Acquisitions, Inc. ("FIAI"),
First
Industrial Harrisburg Corporation ("FIHC"),
and
FI Development Services Corporation ("FIDSC") (FR
First Cal, FR Bucks, FR Lehigh, FR Aberdeen, FR Lackawanna, FR Park, FIAI,
FIHC,
and FIDSC are referred to collectively herein as the "Additional
Subsidiaries,"
and
the Partnership Subsidiaries, the Corporate Subsidiaries and the Additional
Subsidiaries are referred to herein collectively as the "Subsidiaries"
or
individually as a "Subsidiary"),
has
been duly organized and is validly existing as a corporation in good standing
under and by virtue of the laws of its jurisdiction of incorporation. Other
than
the Corporate Subsidiaries, the Partnership Subsidiaries and the Additional
Subsidiaries, no entity in which the Company owns any equity securities
constitute, individually or in the aggregate, is a "significant
9
subsidiary"
under Rule 1-02 of Regulation S-X (substituting "net income" for "income from
continuing operations") promulgated under the Exchange Act. The Company is
the sole general partner of the Operating Partnership. FIFC is a wholly-owned
subsidiary of the Company and is the sole general partner of the Financing
Partnership. FIMC is a wholly-owned subsidiary of the Company and is the sole
general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary
of the Company and is the sole general partner of Securities, L.P. The Operating
Partnership and FISC are the only limited partners of Securities, L.P. FIPC
is a
wholly-owned subsidiary of the Company and is the sole general partner of FIP.
FIIC is a wholly-owned subsidiary of the Company and is the sole general partner
of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general
partner of FIH. FIDSI is a wholly-owned subsidiary of the Operating Partnership.
The Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Company, the Operating Partnership
and each
of
the Subsidiaries has, and at each Closing Date will have, full corporate,
partnership or limited liability company power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate
all
the properties and other assets owned, leased or operated by it and to conduct
its business in which it engages or proposes to engage as described in the
Prospectus and
the
transactions contemplated hereby. The Company and each of the Corporate
Subsidiaries is, and at each Closing Date will be, duly qualified or registered
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the properties and assets owned, leased or operated by it makes
such qualification or registration necessary, except where failure to obtain
such qualifications or registration will not have a material adverse effect
on
(i) the condition, financial or otherwise, or the earnings, assets or
business affairs or prospects of the Operating Partnership, Company and their
Subsidiaries, taken as a whole or on the 846 in service properties owned,
directly or indirectly, by the Company as of September 30, 2005 (the
"Properties") taken
as a whole, (ii) the issuance, validity or enforceability of the Securities
or (iii) the consummation of any of the transactions contemplated by this
Agreement (each a "Material
Adverse Effect").
The
Operating Partnership and each of the Partnership Subsidiaries is, and at each
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned,
leased or operated by it makes such qualification or registration necessary,
except where failure to obtain such qualification or registration will not
have
a Material Adverse Effect. Complete and correct copies of the charter documents,
partnership agreements and other organizational documents of the Company and
its
Subsidiaries and all amendments thereto as have been requested by the
Underwriter or its counsel have been delivered to the Underwriter or its
counsel.
(i) The
Company's authorized capitalization consists of 10,000,000 shares of preferred
stock, par value $.01 per share, 100,000,000 shares of common stock, par value
$.01 per share, and 65,000,000 shares of excess stock, par value $.01 per share.
All of the Company's issued and outstanding shares of common stock and preferred
stock have been duly authorized and are validly issued, fully paid and
non-assessable and will have been offered and sold in compliance, in all
material respects, with all applicable laws (including, without limitation,
federal or state securities laws). The Securities have been duly authorized
for
issuance and sale to the Underwriter pursuant to this Agreement and, when
validly issued and delivered pursuant to this Agreement against payment of
the
Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right and
will have been offered and sold in compliance, in all material respects, with
all applicable laws (including, without limitation, federal or state securities
laws). The description of the Securities, and the statements related thereto,
contained in the Registration Statement or the Prospectus are, and at each
Closing Date, will be, complete and accurate in all material respects. Upon
payment of the Purchase Price and delivery of
10
certificates
representing the Securities in accordance herewith, the Underwriter will receive
good, valid and marketable title to the Securities, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims and
equities. The form of certificate to be used to evidence the Securities 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 to be issued pursuant
to this Agreement and except as disclosed in the Prospectus.
(j) The
partnership agreement of the Operating Partnership is duly authorized, executed
and delivered by the Company, as general partner and a limited partner, and
the
partnership agreement of each Partnership Subsidiary is duly authorized, validly
executed and delivered by each partner thereto and (assuming in the case of
the
Operating Partnership the due authorization, execution and delivery of the
partnership agreement by each limited partner other than the Company) each
such partnership agreement will be a valid, legally binding and enforceable
in
accordance with its terms immediately following each Closing Date subject to
(i) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered in
a
proceeding in equity or at law, and the discretion of the court before which
any
proceeding therefor may be brought. All of the issued and outstanding shares
of
capital stock of the Company and each Corporate Subsidiary, all of the
outstanding units of general, limited and/or preferred partner interests of
the
Operating Partnership and each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid and non-assessable; and (except
as
described in the Prospectus) will be owned directly or indirectly (except
in the case of the Company) by the Company or the Operating Partnership, as
the case may be, free and clear of all security interests, liens and
encumbrances (except for pledges in connection with the loan agreements of
the
Company, the Operating Partnership and the Subsidiaries), and all of the
partnership interests 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);
(k) The
financial statements, supporting schedules and related notes included in, or
incorporated by reference in, the Registration Statement and the Prospectus
comply in all material respects with the requirements of the Securities Act
and
the Exchange Act, as applicable, and present fairly the consolidated financial
condition of the entity or entities or group presented or included therein,
as
of the respective dates thereof, and its consolidated results of operations
and
cash flows for the respective periods covered thereby, are all in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Prospectus. The financial information and data included in the Registration
Statement and the Prospectus present fairly the information included or
incorporated by reference therein and have been prepared on a basis consistent,
except as may be noted therein, with that of the financial statements, schedules
and notes included or incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the respective entity or
entities or group presented or included therein. Except as otherwise noted
in
the Prospectus, pro forma and/or as
11
adjusted
financial information included or incorporated by reference in the Prospectus
has been prepared in accordance with the applicable requirements of the
Securities Act and the American Institute of Certified Public Accountants
("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and includes
all adjustments necessary to present fairly the pro forma and/or as adjusted
financial condition of the entity or entities or group presented or included
therein at the respective dates indicated and the results of operations and
cash
flows for the respective periods specified. The Company's and the Operating
Partnership's ratio of combined fixed charges and preferred stock dividends
to
earnings included in the Prospectus and in Exhibit 12 to the Registration
Statement has been calculated in compliance with Item 503(d) of
Regulation S-K of the Commission. No other financial statements (or
schedules) of the Company, the Operating Partnership and the Partnership
Subsidiaries or any predecessor of the Company and/or the Operating Partnership
and the Partnership Subsidiaries are required by the Securities Act or the
Exchange Act to be included in the Registration Statement or the Prospectus.
PricewaterhouseCoopers LLP (the "Accountants") who
have reported on such financial statements, schedules and related notes, are
independent registered public accountants with respect to the Company, the
Operating Partnership and the Partnership Subsidiaries as required by the
Securities Act, and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K
promulgated by the Commission) required to be disclosed in the Prospectus
or elsewhere pursuant to such Item 304 which have not been so
disclosed;
(l) Subsequent
to the respective dates as of which information is given in the Registration
Statement and the Prospectus and prior to each Closing Date, (i) there has
not been and will not have been, except as set forth in or contemplated by
the
Registration Statement the Prospectus and this Agreement, any change in the
capitalization, long term or short term debt or in the capital stock or equity
of each of the Company, the Operating Partnership or any of the Subsidiaries
which would be material to the Company, the Operating Partnership and the
Subsidiaries considered as one enterprise (anything which would be material
to
the Operating Partnership, the Company and the Subsidiaries, considered as
one
enterprise, being hereinafter referred to as "Material"),
(ii) except as described in the 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 Prospectus, which would be
Material, (iii) there has not been any Material Adverse Effect,
(iv) except for regular quarterly distributions on the Company's shares of
common stock, par value $0.01 per share (the "Common
Stock"),
and
the dividends on the shares of the Company's (a) Depositary Shares each
representing 1/100 of a share of 8⅝% Series C Cumulative Preferred Stock (the
"Series
C Preferred Stock"),
(b) Depositary Shares each representing 1/100 of a share of 6.236% Series F
Flexible Cumulative Redeemable Preferred Stock (the "Series
F Preferred Stock"),
(c) Depositary Shares each representing 1/100 of a share of 7.236% Series G
Flexible Cumulative Redeemable Preferred Stock (the "Series
G Preferred Stock"),
or
(d) Depository Shares each representing 1/10,000
of a
share of Series I Flexible Cumulative Redeemable Preferred Stock (the
"Series
I Preferred Stock"),
the
Company has not paid or declared and will not pay or declare any dividends
or
other distributions of any kind on any class of its capital stock, and
(v) except for distributions in connection with regular quarterly
distributions on partnership units, the Operating Partnership has not paid
any
distributions of any kind on its partnership units;
(m) None
of
the Company, the Operating Partnership or any of the Subsidiaries is, or as
of
each Closing Date will be, required to be registered under the Investment
Company Act of 1940, as amended (the "1940
Act");
(n) To
the
knowledge of the Company or the Operating Partnership, after due inquiry, except
as set forth in the Registration Statement and the Prospectus, there are no
actions, suits, proceedings, investigations or inquiries, pending or, after
due
inquiry, threatened against or affecting the Operating Partnership, the Company
or any of the Subsidiaries or any of their respective officers or directors
in
their capacity as such or of which any of their respective properties or assets
or any Property is the subject or bound, before or by any Federal or state
court, 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;
12
(o) The
Company, the Operating Partnership and each of the Subsidiaries (i) has,
and at each Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on
its
business as contemplated in the Prospectus and 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
Closing Date will not be, in breach of or default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a "Contract
or Other Agreement") or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in
the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any Material contract or other agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. None of the Operating Partnership, the Company or
any
of the Subsidiaries is, nor at any Closing Date will any of them be, in
violation of any provision of its articles of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be;
(p) No
Material consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body or any other entity
is required in connection with the offering, issuance or sale of the Securities
hereunder except such as have been obtained under the Securities Act, the
Exchange Act and such as may be required under state securities, Blue Sky or
real estate syndication laws or the by-laws, the corporate financing rule or
the
conflict of interests rule of the NASD in connection with the purchase and
distribution by the Underwriter of the Securities or such as have been received
prior to the date of this Agreement, and except for the filing of this Agreement
with the Commission as an exhibit to a Form 8-K, which the Company agrees
to make in a timely manner;
(q) The
Company and the Operating Partnership have full corporate or partnership power,
as the case may be, to enter into this Agreement. This Agreement has been duly
and validly authorized, executed and delivered by the Company and the Operating
Partnership, to the extent a party thereto, constitutes a valid and binding
agreement of the Company and the Operating Partnership, and assuming due
authorization, execution and delivery by the Underwriter, and is enforceable
against the Operating Partnership in accordance with the terms hereof and
thereof, subject to (i) the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter
in
effect relating to or affecting the rights and remedies of creditors and
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion of the court
before which any proceeding therefor may be brought. The execution, delivery
and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, and compliance by each of the Company, the Operating
Partnership and the Subsidiaries with its obligations hereunder to the extent
each is a party thereto, will not result in the creation or imposition of any
lien, charge or encumbrance upon
13
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 7(h)) except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not
have
a Material Adverse Effect;
(r) As
of
each Closing Date, the Company, the Operating Partnership and each of the
Subsidiaries will have good and marketable title to all properties and assets
described in the Prospectus as owned by it, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement or the Prospectus, or such as secure
the
loan facilities of the Operating Partnership, the Company and the Subsidiaries,
or would not result in a Material Adverse Effect;
(s) The
Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files reports
with the Commission on XXXXX.
(t) 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;
(u) 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;
(v) Except
as
disclosed in the Prospectus, and except for activities, conditions,
circumstances or matters that would not have a Material Adverse Effect,
(i) to the knowledge of the Company and the Subsidiaries, after due
inquiry, the operations of the Operating Partnership, the Company and the
Subsidiaries are in compliance with all Environmental Laws (as defined
below) and all requirements of
14
applicable
permits, licenses, approvals and other authorizations issued pursuant to
Environmental Laws; (ii) to the knowledge of the Operating Partnership, the
Company and the Subsidiaries, after due inquiry, none of the Operating
Partnership, the Company or the Subsidiaries has caused or suffered to occur
any
Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from
any Property, and no condition exists on, in, under or adjacent to any Property
that could reasonably be expected to result in the incurrence of liabilities
under, or any violations of, any Environmental Law or give rise to the
imposition of any Lien (as defined below), under any Environmental Law;
(iii) none of the Operating Partnership, the Company or the Subsidiaries
has received any written notice of a claim under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances on,
in,
under or originating from any Property; (iv) none of the Operating
Partnership, the Company or the Subsidiaries has actual knowledge of, or
received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to undertake and/or request the investigation, remediation, clean-up or removal
of any Hazardous Substance released into the Environment on, in, under or from
any Property; and (v) no Property is included or, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection Agency
(the "EPA"),
or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that
any Property has otherwise been identified in a published writing by the EPA
as
a potential CERCLA removal, remedial or response site or, to the knowledge
of
the Company and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As
used
herein, "Hazardous
Substance"
shall
include any hazardous substance, hazardous waste, toxic substance, pollutant
or
hazardous material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing materials,
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.
15
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.
(w) The
Company, the Operating Partnership and the Subsidiaries are organized and
operate in a manner so that the Company qualifies as a REIT under Sections
856
through 860 of the Code and the Company has elected to be taxed as a REIT under
the Code commencing with the taxable year ended December 31, 1994. The Company,
the Operating Partnership and the Subsidiaries intend to continue to be
organized and operate so that the Company shall qualify as a REIT for the
foreseeable future, unless the Company's board of directors determines that
it
is no longer in the best interests of the Company to be so
qualified;
(x) There
is
no material document or contract of a character required to be described or
referred to in the Registration Statement or the Prospectus or to be filed
as an
exhibit to the Registration Statement which is not described or filed as
required 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 are accurate in
all
material respects;
(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;
16
(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;"
(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
Securities Act to be described in the Registration Statement and the Prospectus
which is not so described;
(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 Securities, and the Company
and the Operating Partnership have not distributed and have agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than the Prospectus, any preliminary
prospectus filed with the Commission or other material permitted by the
Securities Act (which were disclosed to you and your counsel);
(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 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
the Underwriter or to counsel for the Underwriter in connection with the sale
of
the Securities shall be deemed a representation and warranty by such entity
or
person, as the case may be, to the Underwriter as to the matters covered
thereby;
(gg) The
Registration Statement has been declared effective by the Commission under
the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that purpose
has been instituted, or to the knowledge of the Company or the Operating
Partnership, threatened by the Commission or by the state securities authority
of any jurisdiction. No order preventing or suspending the use of the Prospectus
or any preliminary prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any
jurisdiction.
(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 of the Company owned or to be owned by such person in the offering
contemplated by this Agreement.
17
(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 September 30, 2005 was prepared; (ii) have
been evaluated for effectiveness as of the date of the filing of the Prospectus
Supplement with the Commission; and (iii) are effective in all material
respects to perform the functions for which they were established, except where
a failure to be so effective will not have a Material Adverse
Effect.
(jj) Based
on
its evaluation of its internal controls over financial reporting at December
31,
2004, 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.
8. The
Company and the Operating Partnership, jointly and severally, agree to indemnify
and hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
each
Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus
(as
amended or supplemented if the Company or the Operating Partnership shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to the Underwriter furnished to the Company or the Operating
Partnership in writing by the Underwriter through you expressly for use
therein.
The
Underwriter agrees, to indemnify and hold harmless the Company and the Operating
Partnership, and the Company's and the Operating Partnership's officers and
directors and each person who controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act and
Section 20(a) of the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Operating Partnership to the Underwriter,
but
only with reference to information relating to the Underwriter furnished to
the
Company and the Operating Partnership in writing by such Underwriter through
you
expressly for use in the Registration Statement, each
Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus,
any
amendment or supplement thereto. For purposes of this Section 8 and
Sections 7(b), (f) and (g) the only written information furnished
by the Underwriter to the Company expressly for use in the Registration
Statement and the Prospectus Supplement is the information in the fourth,
eleventh, twelfth and fourteenth paragraphs under the caption
"Underwriting."
If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified
Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying
Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
18
represent
the Indemnified Person and any others the Indemnifying Person may designate
in
such proceeding and shall pay the fees and expenses of such counsel related
to
such proceeding. In any such proceeding, any Indemnified Person shall have
the
right to retain its own counsel, but the fees and expenses of such counsel
shall
be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
as
they are incurred. Any such separate firm for the Underwriter and such control
persons of the Underwriter shall be designated in writing by Xxxxxx Brothers
Inc. and any such separate firm for the Company, the Operating Partnership,
their directors, their officers and such control persons of the Company and
the
Operating Partnership or authorized representatives shall be designated in
writing by the Company or the Operating Partnership. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. If it is ultimately determined that an Indemnified
Person was not entitled to indemnification hereunder, such Indemnified Person
shall be responsible for repaying or reimbursing the Indemnifying Person for
any
amounts so paid or incurred by such Indemnifying Person pursuant to this
paragraph. No Indemnifying Person shall, without the prior written consent
of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of
such proceeding and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or behalf of an
Indemnifying Person. In no event shall any Indemnified Person have any liability
or responsibility in respect of the settlement or compromise of, or consent
to
the entry of any judgment with respect to any pending or threatened action
or
claim effected without its prior written consent.
If
the
indemnification provided for in the first and second paragraphs of this
Section 8 is unavailable or insufficient to hold harmless an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Operating Partnership
on
the one hand and the Underwriter on the other hand from the offering of the
Securities or (b) if the allocation provided by clause (a) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (a) above but also the
relative fault of the Company and the Operating Partnership on the one hand
and
the Underwriter on the other in connection with the statements or omissions
that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriter on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Securities (before deducting expenses) received
by the Company and the Operating Partnership and the total underwriting
discounts and the commissions received by the Underwriter bear to the aggregate
public offering price of the Securities. The relative fault of the Company
and
the Operating Partnership on the one hand and the Underwriter on the other
shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state
a material fact relates to information supplied by the Company and the Operating
Partnership on the one hand or by the Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
19
The
Company, the Operating Partnership and the Underwriter agree that it would
not
be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation that
does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as
a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8, in no event
shall the Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it
and
distributed to the public were offered to the public exceeds the amount of
any
damages that the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The
remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
The
indemnity and contribution agreements contained in this Section 8 and the
representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full
force
and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company, its officers
or
directors or any other person controlling the Company or the Operating
Partnership and (c) acceptance of and payment for any of the
Securities.
9. The
obligation of the Underwriter hereunder shall be subject to the performance
by
the Company and the Operating Partnership of their respective obligations
hereunder and to satisfaction of each of the following conditions:
(a) the
Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the Securities Act; the Statutory
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by such Rule; no stop
order suspending the effectiveness of the Registration Statement or the
Statutory Prospectus shall be in effect, and no proceedings for such purpose
shall have been commenced or shall be pending before or threatened by the
Commission to the knowledge, after due inquiry, of the Company or the Operating
Partnership; no stop order suspending the effectiveness of the Registration
Statement or the Statutory Prospectus shall be in effect and no proceedings
for
such purpose shall have been commenced or shall be pending before or threatened
by the state securities authority of any jurisdiction, to the knowledge of
the
Company or the Operating Partnership; and all requests for additional
information on the part of the Commission shall have been complied with to
your
satisfaction;
(b) all
the
representations and warranties of the Company and the Operating Partnership
contained in this Agreement shall be true and correct on each Closing Date,
with
the same force and effect as if made on and as of such Closing Date, and each
of
the Company and the Operating Partnership shall have complied with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date;
20
(c) subsequent
to the execution and delivery of this Agreement and prior to each Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been
given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or the Operating Partnership
by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under
the Securities Act;
(d) since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus there shall not have been any material change in the capital
stock, partners' equity or long-term debt of the Company, the Operating
Partnership or any of the Subsidiaries on a consolidated basis, except as
described or contemplated in the Prospectus, or any material adverse change,
or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, prospects, management, properties, financial
position, stockholders' equity, partners' equity or results of operations of
the
Company, the Operating Partnership and the Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which in the judgment of the Underwriter makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus; and other than as set
forth in the Prospectus, no proceedings shall be pending or, to the knowledge
of
the Company or the Operating Partnership, after due inquiry, threatened against
the Operating Partnership or the Company or any Property before or by any
federal, state or other commission, board or administrative agency, where an
unfavorable decision, ruling or finding could reasonably be expected to result
in a Material Adverse Effect;
(e) you
shall
have received on and as of each Closing Date a certificate signed by the Chief
Executive Officer of the Company and the Chief Financial Officer of the Company,
in their capacities as officers of the Company, on behalf of the Company for
itself and as general partner of the Operating Partnership, satisfactory to
you
to the effect set forth in subsections (a) through (d) of this
Section 9(e);
(f) you
shall
have received on each Closing Date, an opinion or opinions (satisfactory to
you
and counsel for the Underwriter), dated as of such Closing Date, of Xxxxxx
Xxxxxx & Xxxxxxx llp,
counsel
for the Company and the Operating Partnership, to the effect that:
(i) The
Company is duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule III
hereto.
(ii) The
Operating Partnership and each of the Partnership Subsidiaries has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of its state of organization. The Operating Partnership and each of
the
Partnership Subsidiaries has all requisite partnership power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case, as
described in the Prospectus, and the Operating Partnership has the partnership
power to enter into and perform its obligations under this Agreement. The
Operating Partnership and each of the Partnership Subsidiaries is duly qualified
or registered as a foreign partnership and is in good standing in each
jurisdiction listed on Schedule III
hereto.
21
(iii) To
the
knowledge of such counsel, other than units of the Operating Partnership
exchangeable for common stock of the Company or as otherwise described in the
Prospectus, there are no outstanding securities convertible into or exchangeable
for any common stock of the Company and no outstanding options other than as
provided in this Agreement, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for common stock of the Company. To the knowledge
of
such counsel, all of the outstanding partnership interests of the Operating
Partnership and each of the Partnership Subsidiaries have been duly authorized,
validly issued and fully paid and, except for Units not owned by the Company,
are owned directly or indirectly by the Company or the Operating
Partnership.
(iv) To
the
knowledge of such counsel, none of the Company, the Operating Partnership or
the
Subsidiaries is in violation of or default under its charter, bylaws,
certificate of limited partnership or partnership agreement, as the case may
be,
and none of such entities is in default in the performance or observance of
any
obligation, agreement, covenant or condition contained in any document (as
in
effect on the date of such opinion) listed as an exhibit to the
Registration Statement or the Company's and the Operating Partnership's Annual
Report on Form 10-K for the year ended December 31, 2004 or Quarterly
Report on Form 10-Q for the quarter ended September 30, 2005, in each
case as amended, if applicable, to which such entity is a party or by which
such
entity may be bound, or to which any of the property or assets of such entity
may be subject or by which they may be bound (it being understood that
(i) such counsel need express no opinion with respect to matters relating
to any contract, indenture, mortgage, loan agreement, note lease, joint venture
or partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing of any
property or assets of such entity or any other Property and (ii) such
counsel may assume compliance with the financial covenants contained in any
such
document), except in each case for violations or defaults which in the aggregate
are not reasonably expected to have a Material Adverse Effect.
(v) This
Agreement was duly and validly authorized, executed and delivered by each of
the
Company and the Operating Partnership.
(vi) The
Registration Statement has been declared effective under the Securities Act,
the
Prospectus was filed with the Commission pursuant to Rule 424,
within the applicable time period prescribed by Rule 424,
and,
to the knowledge of such counsel, no stop order suspending the effectiveness
of
the Registration Statement or the Prospectus has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(vii) The
execution and delivery of this Agreement and the issuance and sale of the
Securities and the performance by the Company and the Operating Partnership
of
their respective obligations under the Securities and this Agreement did not
and
do not conflict with or constitute a breach or violation of or default under:
(1) any document (as in effect as of the date of such opinion) listed
as an exhibit to the Registration Statement, each of the Company's Annual Report
on Form 10-K for the year ended December 31, 2004 or Quarterly Report on
Form 10-Q for the quarter ended September 30, 2005, in each case as
amended, if applicable, to which any such entity is a party or by which it
or
any of them or any of their respective properties or other assets may be bound
or subject and of which such counsel is aware (it being understood that
(i) such counsel need express no opinion with respect to matters relating
to any contract, indenture,
22
mortgage,
loan agreement, note lease, joint venture or partnership agreement or other
instrument or agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such entity
or
any other Property and (ii) such counsel may assume compliance with the
financial covenants contained in any such document); (2) the certificate of
limited partnership or partnership agreement, as the case may be, of the
Operating Partnership and the Financing Partnership or the articles of
incorporation or bylaws, as the case may be, of the Company, FIFC or FISC;
or
(3) any applicable law, rule or administrative regulation, except in each
case for conflicts, breaches, violations or defaults that in the aggregate
are
not reasonably expected to have a Material Adverse Effect.
(viii) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any court or governmental authority or agency or any other entity is required
in connection with the offering, issuance or sale of the Securities hereunder,
except such as may be required under the Securities Act, the bylaws, corporate
financing rule and conflict of interest rule of the NASD, or state securities,
Blue Sky or real estate syndication laws, or such as have been received prior
to
the date of such opinion.
(ix) The
Registration Statement, at the time it became effective and the Prospectus,
as
of the date of the Prospectus Supplement, in each case, other than the financial
statements, including the notes and schedules thereto, and other financial
and
statistical data that is found in or derived from the internal accounting
records of the Company, the Operating Partnership or their respective
subsidiaries set forth in or incorporated by reference therein, as to which
no
opinion need be rendered, complied as to form in all material respects with
the
requirements of the Securities Act and the Exchange Act.
(x) The
Underwriter is receiving good, valid and marketable title to the Securities,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities if the Underwriter acquires such Securities
in
good faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities.
(xi) The
information in the Prospectus Supplement under "Certain U.S. Federal Income
Tax
Considerations," and in the Prospectus under "Risk Factors," "Description of
Common Stock," "Restrictions on Transfers of Capital Stock," and "Certain U.S.
Federal Income Tax Considerations" (as modified by the information in the
Prospectus Supplement), to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, or summaries of documents or
legal conclusions, has been reviewed by us and is correct in all material
respects and presents fairly the information required to be disclosed
therein.
(xii) To
such
counsel's knowledge, there is no document or contract of a character required
to
be described or referred to in the Registration Statement and the Prospectus
or
to be filed as exhibits thereto by the Securities Act other than those described
or referred to therein or filed as exhibits thereto, and the descriptions
thereof or references thereto are accurate in all material
respects.
23
(xiii) The
partnership agreement of each of the Operating Partnership, Securities, L.P.
and
the Financing Partnership has been duly authorized, validly executed and
delivered by each of the Company and the Partnership Subsidiaries, to the extent
they are parties thereto, and is valid, legally binding and enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xiv) The
Company and the Operating Partnership satisfy all conditions and requirements
for filing the Registration Statement on Form S-3 under the Securities
Act.
(xv) None
of
the Company or the Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(xvi) Commencing
with the Company's taxable year ended December 31, 1994, the Company has been
organized and operated in conformity with the requirements for qualification
and
taxation as a REIT under the Code, and the Company's current and proposed method
of operation (as represented by the Company to us in a written
certificate) will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
In
addition, Xxxxxx Xxxxxx & Xxxxxxx llp
shall
state, in a separate letter, that they have participated in conferences with
officers and other representatives of the Company, representatives of the
independent registered public accounting firm for the Company and
representatives of the Underwriter at which the contents of the Registration
Statement, the Prospectus and the General Disclosure Package and related matters
were discussed. On the basis thereof, (relying to the extent such counsel deems
appropriate upon the opinions of officers and other representatives of the
Company as to materiality to the Company of the matters discussed) but without
independent verification by such counsel of, and without passing upon or
assuming any responsibility for, the accuracy, completeness or fairness of
the
statements contained in the Registration Statement, the Prospectus or the
General Disclosure Package or any amendments or supplements thereto, no facts
have come to the attention of such counsel that lead them to believe that
(i) the Registration Statement, including the documents incorporated
therein by reference, at the time such Registration Statement became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, (ii) the Prospectus, as of its date or
at such Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (iii) the
General Disclosure Package, as of the Applicable Time, contained or contains
any
untrue statement of a material fact or omitted or omits to state material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it
being
understood that such counsel need express no opinion with respect to the
financial statements, including the notes and schedules thereto, or any other
financial or statistical data that is found in or derived from the internal
accounting records of the Company, the Operating Partnership or their respective
subsidiaries, in each case as set forth in or incorporated by reference into
the
Registration Statement, the Prospectus or the General Disclosure
Package).
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, which opinion shall be in form and substance reasonably satisfactory
to counsel for the Underwriter, (iii) as to matters of Illinois law, on the
opinion of Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP, Chicago,
Illinois, which opinion shall be in form and substance reasonably satisfactory
to counsel for the Underwriter, and (iv) 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
or
opinions of counsel in such jurisdictions. Counsel need express no opinion
with
respect to the requirements of, or compliance with, any state securities or
"Blue Sky" or real estate syndication laws;
24
(g) You
shall
have received on each Closing Date, an opinion (satisfactory to you and counsel
for the Underwriter), dated as of such Closing Date, of McGuireWoods LLP,
special Maryland counsel for the Company, to the effect that:
(i) Each
of
the Company and the Corporate Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation.
(ii) Each
of
the Company and the Corporate Subsidiaries has corporate power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged or proposes to engage, in each case, as
described in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this
Agreement.
(iii) The
Company's authorized capitalization consists of 10,000,000 shares of preferred
stock, par value $.01 per share, 100,000,000 shares of common stock, par value
$.01 per share and 65,000,000 shares of excess stock, par value $.01 per share.
All of the issued and outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and non-assessable.
All
the issued and outstanding shares of capital stock of the Corporate Subsidiaries
have been duly authorized and are validly issued, fully paid and non-assessable
and are owned by the Company.
(iv) Each
of
the Securities has been duly authorized for issuance and sale to the Underwriter
pursuant to this Agreement, when validly issued and delivered pursuant to this
Agreement against payment of the Purchase Price, will be duly authorized,
validly issued, fully paid and non-assessable. To the extent Maryland law
provides the basis for determination, the Underwriter is receiving good, valid
and marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities if
the
Underwriter acquires such Securities in good faith and without notice of any
such security interests, mortgages, pledges, liens, encumbrances, claims or
equities. The terms of the Securities conform in all material respects to all
statements and descriptions related thereto contained in the Registration
Statement and the Prospectus. The certificate used to evidence the Securities
are in due and proper form and comply in all material respects with all
applicable legal requirements. The issuance of the Securities is not subject
to
any preemptive or other similar rights arising under Maryland General
Corporation Law, the Company's charter or by-laws, as amended to date, or any
agreement of which such counsel is aware.
(v) This
Agreement was duly and validly authorized by the Company, on behalf of itself
and the Operating Partnership.
(vi) The
execution and delivery of this Agreement, the performance of the obligations
and
the consummation of the transaction set forth herein and therein by the Company
will not require, to the knowledge of such counsel, any consent, approval,
authorization or other order of any Maryland court, regulatory body,
administrative agency or other governmental body (except as such may be required
under the Securities Act or other securities or blue sky or real
25
estate
syndication laws) and did not and do not conflict with or constitute a
breach or violation of or default under: (A) the charter or by-laws, as the
case may be, of the Company; and (B) any applicable Maryland law, rule or
administrative regulation or any order or administrative or court decree of
which such counsel is aware, except in the case of clause (B) above for
conflicts, breaches, violations or defaults that in the aggregate would not
have
a Material Adverse Effect.
(vii) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any Maryland court, governmental authority, agency or other entity is
required in connection with the offering, issuance or sale of the Securities
hereunder, except such as may be required under Maryland securities, blue sky
or
real estate syndication laws.
(viii) The
information in the Prospectus under "Certain
Provisions of Maryland Law and First Industrial Realty Trust, Inc.'s Articles
of
Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock",
and
"Description of Common Stock" and in Part II of the Registration Statement
under
Item 15, to the extent that it constitutes statements of law, descriptions
of
statutes, rules or regulations, summaries of documents or legal conclusions,
has
been reviewed by such counsel and, as to Maryland law, is correct in all
material respects and presents fairly the information required to be disclosed
therein.
(ix) The
Company and each of the Corporate Subsidiaries was authorized to enter into
the
partnership agreement of each Partnership Subsidiary for which the Company,
the
Operating Partnership or such Corporate Subsidiary, as the case may be, is
the
general partner.
(h) You
shall
have received on each Closing Date, an opinion (satisfactory to you and counsel
for the Underwriter), dated as of such Closing Date, of Barack Xxxxxxxxxx
Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP, special Illinois counsel for the
Company, to the effect that:
(i) To
the
knowledge of such counsel, none of the Company or the Operating Partnership,
FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or default
in
connection with the performance or observance of any obligation, agreement,
covenant or condition contained in any or all of that certain Fourth
Amended Restated Unsecured Revolving Credit Facility, dated as of August 23,
2005, among the Operating Partnership, as Borrower, the Company, as Guarantor
and General Partner, JPMorgan Chase Bank, N.A., and certain other banks as
lenders, JPMorgan Securities Inc., as Lead Arranger and Sole Book Runner,
Wachovia Bank, National Association, as Syndication Agent, Commerzbank AG,
PNC
Bank, National Association and Xxxxx Fargo Bank, N.A., as Documentation Agents,
and AmSouth Bank, The Bank of New York, The Bank of Nova Scotia, Bank of
Montreal and SunTrust Bank as Co-Agents (all such indebtedness collectively,
the
"Credit
Documents"),
except in each case for defaults that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
(ii) The
execution and delivery of this Agreement, the performance of the obligations
and
consummation of transactions set forth herein and therein by the Company and
the
Operating Partnership did not and do not conflict with, or constitute a breach
or violation of, or default under: (A) any or all of the Credit Documents;
(B) any applicable law, rule or administrative regulation of the federal
government (or agency thereof) of the United States; or (C) any order
or administrative or court decree issued to or against, or concerning any or
all
of the Company, the Operating Partnership, the Partnership Subsidiaries and
the
Corporate Subsidiaries, of which, in the cases of clauses (B) and
(C) above, such counsel is aware, except in each case for conflicts,
breaches, violations or defaults that, in the aggregate, would not have a
Material Adverse Effect.
26
(iii) To
the
knowledge of such counsel, there are no legal or governmental proceedings
pending or threatened against the Company, the Operating Partnership, the
Partnership Subsidiaries, the Corporate Subsidiaries or the Additional
Subsidiaries that do, or are likely to, have a Material Adverse
Effect.
(iv) The
information in the 10-K under Item 7 "Management's Discussion and Analysis
of
Financial Condition and Results of Operations—Mortgage Loans Payable" (other
than information relating to a certain mortgage loan made available to First
Industrial Financing Partnership, L.P. by Nomura Asset Capital
Corporation) to the extent that it constitutes statements of law,
descriptions of statutes, summaries of principal financing terms of Credit
Documents or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and presents fairly the information disclosed
therein.
(i) On
the
date hereof, the Accountants shall have furnished to the Underwriter a letter,
dated the date of its delivery, addressed to the Underwriter and in form and
substance satisfactory to the Underwriter (and to its counsel), confirming
that
they are independent registered public accountants with respect to the Company,
the Operating Partnership and the Subsidiaries as required by the Securities
Act
and with respect to the financial and other statistical and numerical
information contained in the Registration Statement and the Prospectus and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on Auditing
Standards 72. At each Closing Date, the Accountants shall have furnished to
the
Underwriter a letter, dated the date of its delivery, which shall confirm,
on
the basis of a review in accordance with the procedures set forth in the letter
from it, that nothing has come to its attention during the period from the
date
of the letter referred to in the prior sentence to a date (specified in the
letter) not more than five days prior to such Closing Date, which would
require any change in its letter dated the date hereof if it were required
to be
dated and delivered at such Closing Date.
(j) You
shall
have received on each Closing Date an opinion, dated as of such Closing Date,
of
Xxxxxxxx Chance US LLP ("CC"),
counsel for the Underwriter, as to the matters referred to in clauses
(ii) (with respect to the Operating Partnership and the first sentence
only), (v), (vi), (ix) and (x) of Section 9(f), and to clause
(i) (with respect to the Company only) of Section 9(g) and,
in addition, CC shall make statements similar to those contained in the second
paragraph following Section 9(f)(xvi) hereto and shall be entitled to
rely on those persons described in the third paragraph following
Section 9(f)(xvi) hereto with respect to the matters described
therein.
In
giving
its opinion, such counsel may rely (A) as to matters of Maryland law,
on
the
opinion of McGuireWoods LLP, Baltimore Maryland, which opinion shall be in
form
and substance reasonably satisfactory to counsel for the Underwriter and
(B) as to the good standing and qualification of the Company, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate governmental officials or
opinions of counsel in such jurisdictions.
27
(k) If
the
Registration Statement or an offering of Securities has been filed with the
NASD
for review, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(l) The
Company and its Subsidiaries shall not have failed at or prior to each Closing
Date to perform or comply with any of the agreements pursuant to Section 5
herein contained or required to be performed or complied with by the Company
at
or prior to such Closing Date.
(m) On
or
prior to the date of this Agreement, the Underwriter shall have received lockup
letters from each of the executive officers of the Company.
(n) The
Securities shall be approved for listing on the New York Stock Exchange,
Inc.
(o) At
each
Closing Date, counsel for the Underwriter shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership and the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form
and
substance to the Underwriter and counsel for the Underwriter.
Except
to
the extent the text of such is as set forth herein, the opinions and
certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects
satisfactory to you and to CC, counsel for the Underwriter.
10. Notwithstanding
anything herein contained, this Agreement may be terminated in your absolute
discretion by notice given to the Company, if after the execution and delivery
of this Agreement and prior to the First Closing Date (a) the Company and
the Operating Partnership shall have failed, refused or been unable, at or
prior
to the First Closing Date, to perform any agreements on its part to be performed
hereunder, (b) any other conditions to the Underwriter's obligations
hereunder are not fulfilled, (c) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association
of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (d) trading of any
securities of or guaranteed by the Company and the Operating Partnership shall
have been suspended on any exchange or in any over-the-counter market,
(e) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities;
(f) there shall have occurred any major disruption of settlements of
securities or clearance services in the United States; or (g) there shall
have occurred any outbreak or escalation of hostilities or act of terrorism
involving the United States or any change in financial markets or any calamity
or crisis that, in the judgment of the Underwriter, is material and adverse
and
which, in the judgment of the Underwriter makes it impracticable to market
the
Securities on the terms and in the manner contemplated in the
Prospectus.
11. If
this
Agreement shall be terminated by the Underwriter because of any failure or
refusal on the part of the Company and the Operating Partnership to comply
with
the terms or to fulfill any of the conditions of this Agreement, or if for
any
reason the Company and the Operating Partnership shall be unable to perform
their obligations under this Agreement or any condition of the Underwriter's
obligations cannot be fulfilled, the Company and the Operating Partnership
agree
to reimburse the Underwriter for all out-of-pocket expenses (including the
fees
and expenses of its counsel) reasonably incurred by the Underwriter in
connection with this Agreement or the offering of Securities contemplated
hereunder, and the Company and the Operating Partnership shall then be under
no
further liability to any Underwriter pursuant to this Agreement except as
provided in Sections 5(i) and 8 of this Agreement.
28
12. In
the
event of termination of this Agreement, the provisions of
Sections 5(i) and 8 remain operative and in full force and
effect.
13. This
Agreement shall inure to the benefit of and be legally binding upon the Company,
the Operating Partnership, the Underwriter, any controlling persons referred
to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from the Underwriter shall be deemed to be a successor by reason
merely of such purchase.
14. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriter shall be given to the Underwriter
at the address set forth on Schedule
II
hereto,
with a copy to Xxxxxxxx Chance US LLP, 00 Xxxx 00xx
Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx, Esq. Notices to the
Company shall be given to it at First Industrial Realty Trust, Inc., 000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxx X. Xxxxxxx,
Esq., with a copy to Xxxxxx Xxxxxx & Xxxxxxx llp,
00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx X. Xxxxxxxxx,
Esq.
15. Absence
of Fiduciary Relationship.
The
Company acknowledges and agrees that:
(a) The
Underwriter has been retained solely to act as underwriter in connection with
the sale of the Company's securities and that no fiduciary, advisory or agency
relationship between the Company and the Underwriter has been created in respect
of any of the transactions contemplated by this Agreement, irrespective of
whether the Underwriter has advised or is advising the Company on other
matters;
(b) the
price
of the securities set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Underwriter, and
the
Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this
Agreement;
(c) it
has
been advised that the Underwriter and its affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of
Company and that the Underwriter has no obligation to disclose such interests
and transactions to Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriter for breach of fiduciary duty or alleged breach of fiduciary
duty
in respect of the transactions contemplated by this Agreement and agrees that
the Underwriter shall have no liability (whether direct or indirect) to
Company in respect of such a fiduciary duty claim or to any person asserting
a
fiduciary duty claim on behalf of or in right of the Company, including
stockholders, employees or creditors of the Company.
16. This
Agreement may be signed in counterparts, each of which shall be an original
and
all of which together shall constitute one and the same instrument.
29
17. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
[Signatures
begin on following page.]
30
Very
truly yours,
FIRST
INDUSTRIAL REALTY TRUST, INC.
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Title:
CFO
FIRST
INDUSTRIAL, L.P.
By: First
Industrial Realty Trust, Inc., as its sole general partner
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
CFO
Accepted:
December 6, 2005
CREDIT
SUISSE FIRST BOSTON LLC
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Managing Director
SCHEDULE
I
Preliminary
Prospectus Supplement Dated December 5, 2005
SI-1
SCHEDULE
II
|
Underwriter:
|
Credit
Suisse First Boston LLC
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
Attention:
Transactions Advisory Group
|
|
Closing
Date and Time of
Delivery:
|
The
Closing will be held at 9:00 a.m.
(New York City time) on December 9, 2005, with the Securities being
delivered through the book-entry facilities of The Depository Trust
Company and made available for review by DTC at least 24 hours prior
to
the First Closing Date
|
|
Closing
Location:
|
Xxxxxxxx
Chance US LLP
00
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
|
SII-1
SCHEDULE
III
JURISDICTIONS
OF FOREIGN QUALIFICATION OF THE COMPANY
AND
THE OPERATING PARTERNSHIP
|
ENTITY:
|
JURISDICTION
|
|
First
Industrial Realty Trust, Inc.
|
California
Florida
Georgia
Illinois
Indiana
Michigan
Minnesota
New
York
|
|
First
Industrial, L.P.
|
California
Colorado
Florida
Georgia
Indiana
Michigan
Minnesota
New
York
Texas
|
SIII-1
