4,000,000 Shares
FIRST INDUSTRIAL REALTY TRUST, INC.
Depositary Shares Each Representing 1/100 of a
Share of 8 3/4% Series B Cumulative Preferred Stock
(Liquidation Preference Equivalent to $25.00 per Depositary Share)
UNDERWRITING AGREEMENT
May 9, 1997
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
as Representatives of the several Underwriters
listed on Schedule I hereto
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 4,000,000 depositary shares each
representing 1/100 of a share of 8 3/4% Series B Cumulative Preferred Stock
(Liquidation Preference Equivalent to $25.00 per Depositary Share) of the
Company, par value $.01 per share (the "Firm Shares"), to be issued under a
deposit agreement (the "Deposit Agreement") between the Company and First
Chicago Trust Company, as Depositary (the "Depositary") to the several
underwriters named in Schedule I hereto (the "Underwriters") for whom you are
acting as Representatives (the "Representatives"). The Company also proposes to
issue and sell to the several Underwriters not more than 600,000 additional
depositary shares each representing 1/100 of a share of 8 3/4% Series B
Cumulative Preferred Stock (Liquidation Preference Equivalent to $25.00 per
Depositary Share), par value $.01 per share (the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are herein collectively called the "Shares." The
Shares to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the Series B Preferred Stock.
1. Registration Statement and Prospectus. The Company and 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 called the "Act"), a
registration statement on Form S-3 (Registration No. 333-21873) including a
preliminary prospectus relating to the registration of the Shares and such other
securities which may be offered from time to time by the Company and/or the
Operating Partnership, as the case may be, in accordance with Rule 415 under the
Act. Such registration statement (as amended, if applicable) was declared
effective by the Commission on April 30, 1997. Such registration statement (as
amended, if applicable), on the one hand, and the prospectus constituting a part
thereof and the prospectus supplement relating to the offering of the Shares
provided to the Underwriters by the Company (whether or not such prospectus
supplement is required to be filed with the Commission by the Company pursuant
to the Act) (the "Prospectus Supplement"), on the other hand, including all
documents incorporated therein by reference pursuant to item 12 of Form S-3
under the Act, as from time to time amended or supplemented pursuant to the Act,
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively called the "Exchange Act") are
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of the Shares
to which it relates. Any registration statement (including any amendment or
supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) of the Act (a "Rule 462(b) Registration Statement")
shall be deemed to be part of the "Registration Statement" as defined herein and
any prospectus or any term sheet as contemplated by Rule 434 of the Act (a "Term
Sheet") (including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be deemed to
be part of the "Prospectus," as defined herein. All references in this Agreement
to financial statements and schedules and other information which is
"contained," "included," "described" or "stated" in the Registration Statement
or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even though
not specifically stated, any document filed under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
the Company agrees to issue and sell the Firm Shares and each Underwriter
agrees, severally and not jointly, to purchase from the Company at a price per
share of $24.2125 (the "Purchase Price"), the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Shares increased as set forth in Section 9 hereof).
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, the Additional Shares from the Company at
the Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional
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Shares in whole or in part from time to time by giving written notice thereof to
the Company within thirty (30) days after the date of this Agreement, provided
that if such thirtieth (30th) day is not a New York Stock Exchange (the "NYSE")
trading day, the thirtieth (30th) day will be the next succeeding NYSE trading
day. Such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date specified in any such notice shall be a business day (i) no
earlier than the Closing Date (as hereinafter defined), (ii) no later than seven
business days after such notice has been given and (iii) no earlier than two (2)
business days after such notice has been given; unless otherwise agreed upon by
the Underwriters and the Company. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Company
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) which bears the same proportion to the
total number of Additional Shares to be purchased from the Company as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares (or such number of Firm Shares
increased as set forth in Section 9 hereof).
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering (the "Offering") of their
respective portions of the Shares as soon after the execution and delivery
hereof as in your judgment is advisable (and, if necessary, any post-effective
amendment to the Registration Statement) and (ii) initially to offer the Shares
upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of certificates for,
and payment of the Purchase Price for the Firm Shares shall be made, subject to
Section 9, at 10:00 A.M., New York City time, on the fourth business day (or the
third business day if required under Rule 15c6-1 of the Exchange Act) following
the date hereof, or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the Company (such time and
date of payment and delivery being herein called the "Closing Date") at the
offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
Closing Date and the location of, delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of certificates for, and payment of the
Purchase Price for any Additional Shares to be purchased by the Underwriters
shall be made at the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other place as you shall designate, at 10:00 A.M., New
York City time, on the date specified in the applicable exercise notice given by
you pursuant to Section 2 (an "Option Closing Date"). Any such Option Closing
Date and the location of, delivery of and the form of payment for such
Additional Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or an applicable Option Closing Date, as
the case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day next preceding
the Closing Date or an applicable Option Closing Date, as the case may be.
Certificates in temporary form evidencing the Shares shall be delivered to you
on the
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Closing Date or an applicable Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment of the Purchase Price therefor by
intra-bank transfer or wire transfer of same day funds to such account as may be
designated by the Company at least two business days prior to the Closing Date.
Any Underwriter may (but shall not be obligated to) make payment of the Purchase
Price for the Firm Shares or the Additional Shares, if any, to be purchased by
any other Underwriter whose payment has not been received by the Closing Date or
the applicable Option Closing Date, as the case may be, but any such payment
shall not relieve such Underwriter from its obligations hereunder.
5. Agreements of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership severally agrees with you as follows:
(a) In respect of the offering of Shares, the Company will (i) prepare
a Prospectus Supplement setting forth the number of Shares covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which
the Shares are being issued, the names of the Underwriters participating in
the offering and the number of Shares which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Shares are to be purchased by the
Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as
the Underwriters and the Company deem appropriate in connection with the
offering of the Shares, (ii) file the Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act no later than the
Commission's close of business on the second Business Day following the
date of determination of the offering price of the Shares and (iii) furnish
copies of the Prospectus to the Underwriters and to such dealers as you
shall specify in New York City as soon as practicable after the date of
this Agreement in such quantities as you may reasonably request.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the Company
will advise you promptly and, if 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 Act, (iii) the receipt of any comments from the Commission
relating to the Registration Statement, any preliminary prospectus relating
to the Shares, the Prospectus or any of the transactions contemplated by
this Agreement, (iv) any request by the Commission for post-effective
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (vi) the happening of any event which
makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Company will make every
reasonable effort
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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 therein, and to furnish to you such
number of conformed copies of the Registration Statement as so filed and of
each amendment to it and document incorporated by reference therein, as you
may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to file
any amendment to the Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus or any
Term Sheet, if applicable, of which you shall not previously have been
advised or to which you or counsel for the Underwriters shall reasonably
object; and to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement, Rule
462(b) Registration Statement, Term Sheet, or amendment or supplement to
the Prospectus which, in the opinion of counsel for the Underwriters, may
be necessary in connection with the distribution of the Shares by you, and
to use its best efforts to cause the same to become promptly effective. If
applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(e) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with
any law, the Company will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus (in form and
substance reasonably satisfactory to counsel for the Underwriters) so that
the statements in the Prospectus, as so amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing when it is so delivered, not misleading, or so that
the Prospectus will comply with any law, and to furnish to each Underwriter
and to such dealers as you shall specify, such number of copies thereof as
such Underwriter or dealers may reasonably request.
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(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify, register or perfect exemptions for the Shares for
offer and sale by the several Underwriters under the applicable state
securities or Blue Sky laws and real estate syndication laws of such
jurisdictions as you may reasonably request; provided, however, the Company
will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject, or provide any undertaking or make any change in
its charter or by-laws that the Board of Directors of the Company
reasonably determines to be contrary to the best interests of the Company
and its stockholders. In each jurisdiction in which the Shares have been so
qualified or registered, the Company will use all reasonable efforts to
file such statements and reports as may be required by the laws of such
jurisdiction, to continue such qualification or registration in effect for
so long a period as the Underwriters may reasonably request for the
distribution of the Shares and to file such consents to service of process
or other documents as may be necessary in order to effect such
qualification or registration; provided, however, the Company will not be
required to qualify as a foreign corporation, file a general consent to
service of process in any such jurisdiction, subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of the Company reasonably determines to
be contrary to the best interests of the Company and its stockholders.
(g) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty (60) days after the
close of the period covered thereby (ninety (90) days in the event the
close of such period is the close of the Company's fiscal year), an
earnings statement (in form complying with the provisions of Rule 158 of
the Act) covering a period of at least twelve (12) months after the
effective date of the Registration Statement (but in no event commencing
later than ninety (90) days after such date) which shall satisfy the
provisions of Section 11(a) of the Act, and, if required by Rule 158 of the
Act, to file such statement as an exhibit to the next periodic report
required to be filed by the Company under the Exchange Act covering the
period when such earnings statement is released.
(h) During the period of five years after the date of this Agreement,
the Company will furnish to you as soon as available (x) a copy of each
regular and periodic report, financial statement or other publicly
available information of the Company and any of its subsidiaries mailed to
the holders of the Shares or filed with the Commission or any securities
exchange and (y) such other publicly available information concerning the
Company and any of its Subsidiaries as you may reasonably request.
(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares,
to file all documents required to be filed by it with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act.
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(j) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of
the Registration Statement and any amendment thereto (including financial
statements and exhibits), each Preliminary Prospectus, the Prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph 5(c), (ii) the printing and delivery of this
Agreement, the Deposit Agreement and the Blue Sky Memorandum, (iii) the
qualification or registration of the Shares for offer and sale under the
securities, Blue Sky laws or real estate syndication laws of the several
states in accordance with Section 5(g) hereof, (iv) the fee of and the
filings and clearance, if any, with the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the Offering, (v) the fees
charged by nationally recognized statistical rating organizations for the
rating of the Shares, (vi) the fee of and the listing of the Shares on the
New York Stock Exchange, Inc. ("NYSE"), (vii) 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 Shares by the Underwriters or
by dealers to whom Shares may be sold, (viii) the preparation, issuance and
delivery of certificates for the Shares to the Underwriters, (ix) the costs
and charges of any transfer agent or registrar, (x) the cost and expenses
of the Depositary under the Deposit Agreement, (xi) any expenses incurred
by the Company in connection with a "road show" presentation to potential
investors, (xii) any transfer taxes imposed on the sale by the Company of
the Shares to the Underwriters and (xiii) the fees and disbursements of the
Company's counsel and accountants.
(k) The Company will use its best efforts to maintain the listing of
the Shares on the NYSE for a period of two years after the Closing Date and
thereafter unless the Company's Board of Directors determines that it is no
longer in the best interests of the Company for the Shares to continue to
be so listed.
(l) The Company will use its best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior
to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(m) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus Supplement under
"Use of Proceeds."
(n) 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.
(o) 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 Shares to
facilitate the sale or resale of any of the Shares in violation of the Act.
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6. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and the Closing
Date that:
(a) The Company and the Operating Partnership meet the requirements
for use of Form S-3, and the Registration Statement has been declared
effective by the Commission.
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the
Prospectus and, if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at the time the Registration Statement became effective,
and when any post-effective amendment to the Registration Statement or Rule
462(b) Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will
comply in all material respects with all applicable provisions of the Act
and will contain all statements required to be stated therein in accordance
with the Act. The Prospectus, including the financial statements, schedules
and related notes included or incorporated by reference in the Prospectus,
and if applicable, any Term Sheet to the Prospectus, as of the date hereof
and at the time the Registration Statement became effective, and at the
Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did
or will comply in all material respects with all applicable provisions of
the Act and will contain all statements required to be stated therein in
accordance with the Act. On the date the Registration Statement was
declared effective, on the date hereof, on the date of filing of any Rule
462(b) Registration Statement and on the Closing Date no part of the
Registration Statement or any amendment did or will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective,
on the date hereof, as of its date, on the date of filing of any Rule
462(b) Registration Statement and at the Closing Date, the Prospectus 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 Shares, the Company will have complied or will comply with the
requirements of Rule 111 under the Act relating to the payment of filing
fees therefor. The foregoing representations and warranties in this Section
6(b) do not apply to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in
writing to the Company by the Underwriters specifically for inclusion in
the Registration Statement or Prospectus or any amendment or supplement
thereto. The Company has not distributed, and prior to the later of the
Closing Date and the completion of the distribution of the Shares, will not
distribute, any offering material in connection with the offering or sale
of the Shares other than the Registration Statement, the Preliminary
Prospectus (as hereinafter defined), the Prospectus or any other materials,
if any, permitted by the Act (which were disclosed to the Underwriters and
Underwriters' counsel).
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(c) The preliminary prospectus supplement, dated May 8, 1997, filed
pursuant to Rule 424 under the Act (the "Preliminary Prospectus") and each
462(b) Registration Statement, if any, complied or will comply when so
filed in all material respects with all applicable provisions of the Act;
did not or will 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; and
each Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Shares will, at the
time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to 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 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
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 the Closing Date, or during the period specified in Section 5(c)
did not and will not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
foregoing representations and warranties in this Section 6(d) do not apply
to any statements or omissions made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
by the Underwriters specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto.
(e) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and
is in good standing with the State Department of Assessments and Taxation
of Maryland. Each of the Operating Partnership, First Industrial Financing
Partnership, L.P. (the "Financing Partnership"), First Industrial
Securities, L.P. ("Securities, L.P."), First Industrial Mortgage
Partnership, L.P. (the "Mortgage Partnership"), First Industrial
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services Group, L.P. ("DSG") and First
Industrial Pennsylvania Partnership, L.P. ("FIP") (the Operating
Partnership, the Financing Partnership, Securities, L.P., the Mortgage
Partnership, FII, FIH, DSG and FIP are referred to collectively herein as
the "Partnership Subsidiaries") has been duly organized and is validly
existing as a limited partnership in good standing under and by virtue of
the laws of its jurisdiction of organization. Each of First Industrial
Securities Corporation ("FISC"), First Industrial Finance Corporation
("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial
Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis
Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI
Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"),
First Industrial Management Corporation ("FIMC," and together with FISC,
FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively
herein as the "Corporate Subsidiaries," and the Partnership Subsidiaries
and the Corporate Subsidiaries are referred to herein collectively
9
as the "Subsidiaries"), has been duly organized and is validly existing as
a corporation in good standing under and by virtue of the laws of its
jurisdiction of organization. Other than the Corporate Subsidiaries and the
Partnership Subsidiaries, no entities in which the Company owns any equity
securities constitute, individually or in the aggregate, a "significant
subsidiary" under Rule 1-02 of Regulation S-X promulgated under the
Exchange Act. The Company is the sole general partner of the Operating
Partnership. FIFC is a wholly-owned subsidiary of the Company and is the
sole general partner of the Financing Partnership. FIM is a wholly-owned
subsidiary of the Company and is the sole general partner of the Mortgage
Partnership. FISC is a wholly-owned subsidiary of the Company and is the
sole general partner of Securities, L.P. The Operating Partnership and FISC
are the only limited partners of Securities, L.P. FIPC is a wholly-owned
subsidiary of the Company and is the sole general partner of FIP. FIIC is a
wholly-owned subsidiary of the Company and is the sole general partner of
FII. FIHC is a wholly-owned subsidiary of the Company and is the sole
general partner of FII. FIDSG is a wholly-owned subsidiary of the Company
and is the sole general partner of DSG. The Operating Partnership is the
sole limited partner of each Partnership Subsidiary (except for Securities,
L.P.). The Company and each of the Subsidiaries has, and at the Closing
Date and, if later, an Option Closing Date, will have, full corporate or
partnership power and authority, as the case may be, to conduct all the
activities conducted by it, to own, lease or operate all the properties and
other assets owned, leased or operated by it and to conduct its business in
which it engages or proposes to engage as described in the Registration
Statement or the Prospectus and the transactions contemplated hereby and
thereby. The Company and each of the Corporate Subsidiaries is, and at the
Closing Date or, if later, an Option Closing Date, will be, duly qualified
or registered to do business and in good standing as a foreign corporation
in all jurisdictions in which the nature of the activities conducted by it
or the character of the properties and assets owned, leased or operated by
it makes such qualification or registration necessary, except where failure
to obtain such qualifications or registration will not have a material
adverse effect on (i) the condition, financial or otherwise, or the
earnings, assets or business affairs or prospects of the Company and its
Subsidiaries, taken as whole or on the 379 in service properties owned,
directly or indirectly, by the Company as of December 31, 1996 (the
"Properties"), (ii) the issuance, validity or enforceability of the shares
or the enforceability of the Deposit Agreement or (iii) the consummation of
any of the transactions contemplated by this Agreement and/or the Deposit
Agreement (a "Material Adverse Effect"), which jurisdictions of foreign
qualification or registration are attached on Schedule II hereto. Each of
the Partnership Subsidiaries is, and at the Closing Date or, if later, an
Option Closing Date, will be, duly qualified or registered to do business
and in good standing as a foreign limited partnership in all jurisdictions
in which the nature of the activities conducted by it or the character of
the assets owned, leased or operated by it makes such qualification or
registration necessary, except where failure to obtain such qualifications
or registration will not have a Material Adverse Effect, which
jurisdictions of foreign qualification or registration are attached on
Schedule II hereto. Complete and correct copies of the articles of
incorporation and of the by-laws of the Company and the charter documents,
partnership agreements and other organizational documents of the
Subsidiaries and all
10
amendments thereto as have been requested by the Underwriters or their
counsel have been delivered to the Underwriters or their counsel.
(f) The Company's authorized capitalization consists of 10,000,000
shares of preferred stock, par value $.01 per share, 100,000,000 shares of
common stock, par value $.01 per share, and 65,000,000 shares of excess
stock, par value $.01 per share. All of the Company's issued and
outstanding shares of common stock and preferred stock have been duly
authorized and are validly issued, fully paid and non-assessable and will
have been offered and sold in compliance, in all material respects, with
all applicable laws (including, without limitation, federal or state
securities laws). The Shares have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when validly
issued and delivered pursuant to this Agreement against payment of the
Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right
and will have been offered and sold in compliance, in all material
respects, with all applicable laws (including, without limitation, federal
or state securities laws). The Shares have been duly authorized for listing
on the NYSE, subject to official notice of issuance. The description of the
Shares, and the statements related thereto, contained in the Registration
Statement or the Prospectus are, and at the Closing Date, will be, complete
and accurate in all material respects. Upon payment of the Purchase Price
and delivery of certificates representing the Shares in accordance
herewith, each of the Underwriters will receive good, valid and marketable
title to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The form of depositary
receipts to be used to evidence the Shares will be in due and proper form
and will comply, in all material respects, with all applicable legal
requirements and the requirements of the NYSE. 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.
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as the general partner and as a limited partner and the
partnership agreement of each Partnership Subsidiary, other than the
Operating Partnership, will have been duly authorized, validly executed and
delivered by each partner thereto and is valid, legally binding and
enforceable in accordance with its terms 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; immediately following the Closing Date,
all of the issued and outstanding shares of capital stock of each Corporate
Subsidiary will have been duly authorized and are validly issued, fully
paid and non-assessable and (except as described in the Prospectus) will be
owned directly or indirectly by the Company or the Operating Partnership,
free and clear of all security interests, liens and encumbrances, (except
for pledges in connection with the loan agreements of the Company and the
Subsidiaries) and all of the partnership interests in each Partnership
11
Subsidiary will have been duly authorized and validly issued, fully paid
and (except as described in the Prospectus) will be owned directly or
indirectly by the Company or the Operating Partnership, free and clear of
all security interests, liens and encumbrances (except for pledges in
connection with the loan agreements of the Company and the Subsidiaries).
(h) The financial statements, supporting schedules and related notes
included, 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 or incorporated by reference 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 adjusted financial information included in the Prospectus has
been prepared in accordance with the applicable requirements of the Act and
the American Institute of Certified Public Accountants ("AICPA") 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 or incorporated by reference therein at the
respective dates indicated and the results of operations and cash flows for
the respective periods specified. The Company's ratio of earnings to fixed
charges and preferred dividend requirements included in the Prospectus and
in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. No other
financial statements (or schedules) of the Company, or any predecessor of
the Company are required by the Act or the Exchange Act to be included in
the Registration Statement or the Prospectus. Coopers & Xxxxxxx L.L.P. (the
"Accountants") who have reported on such financial statements, schedules
and related notes, are independent public accountants with respect to the
Company as required by the Act.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Date, (i) there has not been and will not have been, except as set
forth in or contemplated by the Registration Statement and the Prospectus,
any change in the capitalization, long term or short term debt or in the
capital stock or equity of the Company or any of its Subsidiaries which
would be material to the Company and its Subsidiaries considered as one
enterprise (anything which would be material to the Company and its
Subsidiaries, considered as one enterprise, being hereinafter referred to
as "Material"), (ii) except as described in the Prospectus, neither the
Company nor any of its Subsidiaries has incurred nor will any
12
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,
and (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 Series A Preferred Stock, par
value $.01 per share (the "Series A 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.
(j) Neither the Company nor any of its Subsidiaries is, or as of the
Closing Date or, if later, an Option Closing Date, will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(k) To the knowledge of the Company, except as set forth in the
Registration Statement and the Prospectus, there are no actions, suits,
proceedings, investigations or inquiries pending or, after due inquiry,
threatened against or affecting the Company or any of its Subsidiaries or
any of their respective officers or directors in their capacity as such or
of which any of their respective properties or assets or any Property is
the subject or bound, before or by any Federal or state court, commission,
regulatory body, administrative agency or other governmental body, domestic
or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect.
(l) The Company and each of its Subsidiaries (i) has, and at the
Closing Date or, if later, an Option Closing Date, will have, (A) all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus and 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) is not, and at the Closing Date or, if later,
an Option 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 Company
and each of its Subsidiaries, after due inquiry, no other party under any
Material contract or other agreement to which it is a party is in default
thereunder, except where such default will not have a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is, nor at the
Closing Date or, if later, an Option Closing Date, will any of them be, in
violation of any provision of its articles of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be.
13
(m) No Material consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body or any
other entity is required in connection with the offering, issuance or sale
of the Shares hereunder except such as have been obtained under the Act and
the Exchange Act and such as may be required under state securities, Blue
Sky or real estate syndication laws, or the by-laws, the corporate
financing rule or the conflict of interest rule of the NASD or the
requirements of the NYSE in connection with the purchase and distribution
by the Underwriters of the Shares or such as have been received prior to
the date of this Agreement, and except for the filing of this Agreement and
the Deposit Agreement with the Commission as exhibits to a Form 8-K, which
the Company agrees to make in a timely manner.
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement and the
Deposit Agreement, to the extent each is a party thereto. Each of this
Agreement and the Deposit Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, to the
extent each is a party thereto and constitutes a valid and binding
agreement of the Company and the Operating Partnership, to the extent each
is a party thereto, and assuming due authorization, execution and delivery
by the Underwriters, is enforceable, against the Company and the Operating
Partnership, to the extent each is a Party thereto, in accordance with the
terms hereof 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 the compliance by
each of the Company and the Subsidiaries with their obligations hereunder,
will not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets or properties of the Company or any of
its Subsidiaries pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or give any other party a right to terminate any of its
obligations under, or result in the acceleration of any obligation under,
the certificate of incorporation, by-laws, partnership agreement or other
organizational documents of the Company or any of its Subsidiaries, any
Contract or Other Agreement to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries or any of
their assets or properties are bound or affected, or violate or conflict
with any judgment, ruling, decree, order, statute, rule or regulation of
any court or other governmental agency (foreign or domestic) or body
applicable to the business or properties of the Company or any of its
Subsidiaries or to the Properties, in each case except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or
accelerate obligations, or conflicts, the imposition or occurrence of which
would not have a Material Adverse Effect.
(o) As of the Closing Date or, if later, an Option Closing Date, the
Company and each of its subsidiaries will have good and marketable title to
all Material properties
14
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 Company and the Subsidiaries, or
would not result in a Material Adverse Effect.
(p) 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.
(q) The Company and the Partnership Subsidiaries have property, title,
casualty and liability insurance in favor of the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Company and the Partnership Subsidiaries except in such
instances where the tenant is carrying such insurance or the tenant is
self-insuring such risks.
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (A) to the knowledge of the Company and its Subsidiaries, after due
inquiry, the operations of the Company and its Subsidiaries are in
compliance with all Environmental Laws (as defined below) and all
requirements of applicable permits, licenses, approvals and other
authorizations issued pursuant to Environmental Laws; (B) to the knowledge
of the Company and its Subsidiaries, after due inquiry, none of the Company
or its Subsidiaries has caused or suffered to occur any Release (as defined
below) of any Hazardous Substance (as defined below) into the Environment
(as defined below) on, in, under or from any Property, and no condition
exists on, in, under or adjacent to any Property that could reasonably be
expected to result in the incurrence of liabilities under, or any
violations of, any Environmental Law or give rise to the imposition of any
Lien (as defined below), under any Environmental Law; (C) none of the
Company or its Subsidiaries has received any written notice of a claim
under or pursuant to any Environmental Law or under common law pertaining
to Hazardous Substances on, in, under or originating from any Property; (D)
none of the Company or its Subsidiaries has actual knowledge of, or
received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to undertake and/or request the investigation, remediation, clean-up or
removal of any Hazardous Substance released into the Environment on, in,
under or from any Property; and (E) no Property is included or, to the
knowledge of the Company and its
15
Subsidiaries, after due inquiry, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA"), or included on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and none of the Company
and its Subsidiaries has actual knowledge that any Property has otherwise
been identified in a published writing by the EPA as a potential CERCLA
removal, remedial or response site or, to the knowledge of the Company and
its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is subject to regulation under any Environmental
Law (including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
ss. 172.101, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 302); "Environment" shall mean any surface
water, drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss.
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), and all other
federal, state and local laws, ordinances, regulations, rules and orders
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal,
state or local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law; "Lien"
shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such Property;
and "Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or other
receptacles containing or previously containing and containing a residue of
any Hazardous Substance.
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was
employed for such purpose on a contingent basis or has any substantial
interest in the Company or any of its Subsidiaries, and none of them nor
any of their directors, officers or employees is
16
connected with the Company or any of its Subsidiaries as a promoter,
selling agent, voting trustee, director, officer or employee.
(s) The Company and its Subsidiaries are organized and operate in a
manner so as to qualify as a real estate investment trust (the "REIT")
under Sections 856 through 860 of the Code, as amended (the "Code"), and
have elected to be taxed as a REIT under the Code commencing with the
taxable year ending December 31, 1994. The Company and its Subsidiaries
intend to continue to qualify as a REIT for the foreseeable future.
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, except for the filing of this Agreement and
the Deposit Agreement with the Commission as exhibits to a Form 8-K, which
the Company agrees to make in a timely manner, and the descriptions thereof
or references thereto are accurate in all material respects.
(u) On the Closing Date, the Shares will be duly authorized for
listing on the NYSE subject to official notice of issuance.
(v) None of the Company or any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company or its Subsidiaries,
after due inquiry, is any such dispute threatened which would have a
Material Adverse Effect.
(w) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, all material trademarks and trade
names which are used in or necessary for the conduct of their respective
businesses as described in the Prospectus. To the knowledge of the Company,
no claims have been asserted by any person to the use of any such
trademarks or trade names or challenging or questioning the validity or
effectiveness of any such trademark or trade name. The use, in connection
with the business and operations of the Company and its Subsidiaries, of
such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(x) The Company and each of its Subsidiaries has filed all federal,
state, local and foreign income tax returns which have been required to be
filed (except in any case in which the failure to so file would not result
in a Material Adverse Effect) and has paid all taxes required to be paid
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing would otherwise be delinquent, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith and except in any case in which the failure to so
pay would not result in a Material Adverse Effect.
(y) Each of the Partnership Subsidiaries is properly treated as a
partnership for federal income tax purposes and not as a "publicly traded
partnership."
17
(z) No relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or the Subsidiaries on
the other hand, which is required by the Act to be described in the
Registration Statement and the Prospectus which is not so described;
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Shares, and the Company has not distributed and have agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than the Prospectus, any preliminary
prospectus filed with the Commission or other material permitted by the
Securities Act (which were disclosed to you and your counsel);
(ab) 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;
(ac) The Shares will have the following investment grade ratings from
each of Standard & Poor's Corporation ("S&P") ("BBB-"), Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") ("baa3"), Fitch Investors Services, L.P.
("Fitch") ("BBB") and Duff & Xxxxxx ("D&P") ("BBB-"), at each applicable
Representation Date;
(ad) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted, or to the knowledge of the Company, threatened
by the Commission or by the state securities authority of any jurisdiction.
No order preventing or suspending the use of the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission or by the state securities
authority of any jurisdiction; and
(ae) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, and delivered
to the Underwriters or to counsel for the Underwriters in connection with
the sale of the Shares shall be deemed a representation and warranty by
such entity or person, as the case may be, to each Underwriter as to the
matters covered thereby.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act
18
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise out of or
are based upon any untrue statement or omission or alleged untrue statement or
omission which has been made therein or omitted therefrom in reliance upon and
in conformity with the information relating to such Underwriter furnished in
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith; provided, however, that the indemnification
contained in this paragraph (a) with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Shares by such Underwriter to
any person if a copy of the Prospectus shall not have been delivered or sent to
such person within the time required by the Act and the regulations thereunder,
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus, provided that the Company has delivered the
Prospectus to the several Underwriters in requisite quantity on a timely basis
to permit such delivery or sending. The foregoing indemnity agreement shall be
in addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Xxxxx Xxxxxx Inc., and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
19
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, or any such controlling person based on
the Registration Statement, the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof, such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
20
information supplied by the Company on the one hand or by the Underwriters on
the other hand and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective numbers of Firm Shares set forth opposite their names in Schedule I
hereto (or such numbers of Firm Shares increased as set forth in Section 9 and
not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Shares and the Additional Shares, as the case
may be, under this Agreement are subject to the satisfaction of each of the
following conditions:
21
(a) All the representations and warranties of the Company and the Operating
Partnership contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect as if
made on and as of the Closing Date; and as of an Option Closing Date, if any, to
the knowledge of the Company and the Operating Partnership, such representations
and warranties were true and correct, in all Material respects, as of the date
of this Agreement and on the Closing Date. On or before any Option Closing Date,
if any, the Company shall disclose to the Underwriters the information which
would make such representations and warranties not true and correct, in all
Material respects, as of such Option Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(b) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the 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 shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or threatened by the Commission to the knowledge, after due inquiry, of
the Company. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending before or threatened by the state securities
authority of any jurisdiction, to the knowledge of the Company.
(c) Subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company or the Operating
Partnership by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
adverse 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 your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares 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, 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;
22
(e) you shall have received on and as of the Closing Date and on and as of
any applicable Option Closing Date, as the case may be, a certificate signed by
the Chairman of the Board of Directors or President or Chief Executive Officer
of the Company and the Chief Financial or Accounting 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;
(f) You shall have received on the Closing Date and, if later, an Option
Closing Date an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, and the Option Closing Date, as the case
may be, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Company and the Operating
Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule II hereto. Each of the
Corporate Subsidiaries is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule II hereto.
(ii) Each of the Partnership Subsidiaries has been duly formed and is
validly existing as a limited partnership in good standing under the laws
of its state of organization. Each of the Partnership Subsidiaries has all
requisite partnership power and authority to own, lease and operate its
properties and other assets, to conduct the business in which it is engaged
and proposes to engage, in each case, as described in the Prospectus, and
the Operating Partnership has the partnership power to enter into and
perform its obligations under this Agreement. Each of the Partnership
Subsidiaries is duly qualified or registered as a foreign partnership and
is in good standing in each jurisdiction identified with an asterisk in
Schedule II hereto.
(iii) To the knowledge of such counsel, other than the Additional
Shares, no shares of preferred stock of the Company are reserved for any
purpose. To the knowledge of such counsel, there are no outstanding
securities convertible into or exchangeable for any preferred stock of the
Company and no outstanding options other than as provided in this
Agreement, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of preferred stock of the Company. To the knowledge of
such counsel, no shares of capital stock of any of the Corporate
Subsidiaries are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of the
Corporate Subsidiaries, and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of the Corporate Subsidiaries, except
as disclosed in the Prospectus. To the knowledge of such counsel, all of
the outstanding partnership interests of the Operating Partnership, the
Financing Partnership, Securities, L.P. and the Mortgage Partnership have
been duly authorized, validly issued and fully paid and, except for Units
not owned by the Company, are owned directly or indirectly by the Company
or the Operating Partnership.
23
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P., FISC,
FIFC, FIMC or the Mortgage Partnership is in violation of or default under
its charter, by-laws, certificate of limited partnership or partnership
agreement, as the case may be, and none of such entities is in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other instrument to
which such entity is a party or by which such entity may be bound, or to
which any of the property or assets of such entity or any Property is
subject to or bound by, (it being understood that such counsel need express
no opinion with respect to matters relating to any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement relating to the acquisition,
transfer, operation, maintenance, management or financing of the
Properties) except in each case for violations or defaults which in the
aggregate are not reasonably expected to have a Material Adverse Effect.
(v) Each of this Agreement and the Deposit Agreement was duly and
validly authorized, executed and delivered by each of the Company and the
Operating Partnership.
(vi) The execution and delivery of this Agreement and the Deposit
Agreement, the issuance and sale of the Shares, the performance of the
obligations set forth herein and therein by the Company and the Operating
Partnership of their respective obligations and the consummation of the
transactions herein and therein contemplated will not require, to such
counsel's knowledge, any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental
body (except such as may be required under the Act and the state
securities, Blue Sky or real estate syndication laws in connection with the
purchase and distribution of the Shares by the Underwriters) and did not
and do not conflict with or constitute a breach or violation of or default
under: (1) any contract, indenture, mortgage, loan agreement, note, lease,
joint venture or partnership agreement or other instrument or agreement to
which any such entity is a party or by which it or any of them or any of
their respective properties or other assets may be bound or subject and of
which such counsel is aware; (2) the certificate of limited partnership or
partnership agreement, as the case may be, of the Operating Partnership and
the Partnership Subsidiaries or the articles of incorporation or bylaws, as
the case may be, of the Company and the Corporate Subsidiaries; (3) any
applicable law, rule or administrative regulation of the United States or
the State of Delaware; or (4) any order or administrative or court decree
of which such counsel is aware, except in each case for conflicts,
breaches, violations or defaults that in the aggregate would not have a
Material Adverse Effect.
(vii) To the knowledge of such counsel, no Material authorization,
approval, consent or order of any court or governmental authority or agency
or any other entity is required in connection with the offering, issuance
or sale of the Shares hereunder, except such as may be required under the
Act or the by-laws, corporate
24
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.
(viii) 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 and supporting schedule and other
financial and statistical data included or incorporated by reference
therein, as to which no opinion need be rendered), complied as to form in
all material respects with the requirements of the Act and the Exchange
Act.
(ix) Each of the Underwriters is receiving good, valid and marketable
title to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the Underwriters
acquire such Shares in good faith and without notice of any such security
interests, mortgages, pledges, liens, encumbrances, claims or equities.
(x) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed
therein.
(xi) The information in the Prospectus Supplement under "Description
of Series B Preferred Shares and Depositary Shares" and "Certain Federal
Income Tax Considerations" and in the Prospectus under "Risk Factors,"
"Description of Debt Securities," "Description of Preferred Stock,"
"Description of Depository Shares," "Description of Common Stock,"
"Restrictions on Transfers of Capital Stock" and "Federal Income Tax
Considerations," to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, summaries of documents or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects and presents fairly the information required to be
disclosed therein.
(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 Prospectus or to be filed as exhibits thereto by the Act
other than those described or referred to therein or filed as exhibits
thereto, and the descriptions thereof or references thereto are accurate in
all material respects.
(xiii) The Shares have been approved for listing on the NYSE subject
to official notice of issuance.
(xiv) The partnership agreement of each Partnership Subsidiary has
been duly authorized, validly executed and delivered by each of the Company
and the Subsidiaries, to the extent they are parties thereto, and is valid,
legally binding and enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to
25
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).
(xv) 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; and
(xvi) The documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules therein and other financial data, as to
which no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xvii) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on Form
S-3 under the Act Regulations.
(xviii) None of the Company, the Corporate Subsidiaries or the
Partnership Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and shall authorize the Underwriters to rely on such opinion as if it
were addressed to the Underwriters.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall state that they have
participated in conferences with officers and other representatives of the
Company, the Operating Partnership and the Subsidiaries, representatives of the
independent public accountants for the Company, the Operating Partnership and
the Subsidiaries and representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus and related matters were
discussed. On the basis thereof, 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 or the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement, including the documents
incorporated therein by reference, at the time such Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the Prospectus, as of its
date or at the Closing Date, or, if later, an Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the
26
financial statements, schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In giving its opinion, such counsel may rely (A) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Corporate Subsidiaries
and the Partnership Subsidiaries, (B) as to matters of Maryland law, on the
opinion of McGuire, Woods, Battle & Xxxxxx, L.L.P., Baltimore, Maryland, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Underwriters, (C) as to matters of Illinois law, on the opinion of Barack
Ferazzano Xxxxxxxxxx & Xxxxxxx, Chicago, Illinois, which opinion shall be in
form and substance reasonably satisfactory to counsel for the Underwriters, and
(D) as to the good standing and qualification of the Company, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate government officials or opinions
of counsel in such jurisdictions. Counsel need express no opinion (i) as to the
enforceability of forum selection clauses in the federal courts or (ii) with
respect to the requirements of, or compliance with, any state securities, Blue
Sky or real estate syndication laws.
(g) You shall have received on the Closing Date and, if later, an Option
Closing Date, an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, and the Option Closing Date, as the case
may be, of McGuire, Woods, Battle & Xxxxxx, L.L.P., special Maryland counsel for
the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has corporate
power and authority to own, lease and operate its properties and other
assets and to conduct the business in which it is engaged or proposes to
engage, in each case, as described in the Prospectus, and the Company has
the 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 Shares has been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when validly issued and
delivered pursuant to this Agreement against payment of the Purchase Price,
will be duly authorized, validly issued, fully paid and non-assessable. To
the extent Maryland law
27
provides the basis for determination, each of the Underwriters is receiving
good, valid and marketable title to the Shares, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims and
equities if the Underwriters acquire such Shares in good faith and without
notice of any such security interests, mortgages, pledges, liens,
encumbrances, claims or equities. The terms of the Shares conform in all
material respects to all statements and descriptions related thereto
contained in the Registration Statement and Prospectus. The form of
depositary receipt used to evidence the Shares are in due and proper form
and comply in all material respects with all applicable legal requirements
and with the requirements of the NYSE. The issuance of the Shares is not
subject to any preemptive or other similar rights arising under Maryland
General Corporation Law, the Company's charter or by-laws, as amended to
date, or any agreement of which such counsel is aware.
(v) This Agreement was duly and validly authorized and executed by the
Company.
(vi) The execution and delivery of this Agreement and the Deposit
Agreement and the performance of the obligations and the consummation of
the transactions 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 Act or other securities laws) and did not and do not
conflict with or constitute a breach or violation of or default under: (1)
the charter or by-laws, as the case may be, of the Company; (2) any
applicable Maryland law, rule or administrative regulation or any order or
administrative or court decree of which such counsel is aware, except in
each case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vii) To the knowledge of such counsel, no Material authorization,
approval, consent or order of any Maryland court, governmental authority,
agency or other entity is required in connection with the offering,
issuance or sale of the Shares hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication laws.
(viii) The information in the Prospectus under "Description of Common
Stock," "Certain Provisions of Maryland Law and the Company's Articles of
Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock"
and in Part II of the Registration Statement under Item 15 to the extent
that it constitutes statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has been reviewed
by such counsel and, as to Maryland law, is correct in all material
respects and presents fairly the information required to be disclosed
therein.
(ix) The Company and each of the Corporate Subsidiaries was authorized
to enter into the partnership agreement of each Partnership Subsidiary for
which the Company or such Corporate Subsidiary, as the case may be, is the
general partner.
28
(h) You shall have received on the Closing date and, if later, an Option
Closing Date, an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, or the Option Closing Date, as the case
may be, of Barack Ferazzano Xxxxxxxxxx & Xxxxxxx, special Illinois counsel for
the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company, FRA, the
Operating Partnership, FIMC, the Mortgage Partnership, FIH, FII, FIHC and
FIIC is in violation of or in default in connection with the performance or
observance of any obligation, agreement, covenant or condition contained in
any or all of (a) the documentation evidencing and/or securing (1) a
certain unsecured term loan made available to the Operating Partnership by
Union Bank of Switzerland, New York Branch, (2) a certain loan made
available to Harrisburg, L.P. by ORIX USA, Inc., (3) a certain mortgage
loan made available to the Financing Partnership by Nomura Asset Capital
Corporation, (4) a certain mortgage loan made available to the Mortgage
Partnership by Nomura Asset Capital Corporation, and (5) a certain
revolving credit facility made available to the Operating Partnership by
The First National Bank of Chicago and the Union Bank of Switzerland, New
York Branch, (6) the assumption by the Operating Partnership of a certain
mortgage loan from PFL Life Insurance Company made available to Fourth
Brookville Associates Limited Partnership; (7) the assumption by the
Operating Partnership of a certain loan from Monumental Life Insurance
Company made available to Lincoln Center Associates Limited Partnership;
(8) the origination of a certain mortgage loan made available to FII by
Connecticut General Life Insurance Company ("CIGNA"); (9) the origination
of a certain mortgage loan made available to the Operating Partnership by
CIGNA; (10) the acquisition of property by the Operating Partnership
subject to a certain mortgage loan from Smithkline Xxxxxxx Clinical
Laboratories, Inc. made available to 290 Industrial Co., LLC; and (K) the
acquisition of property by the Operating Partnership subject to a certain
mortgage loan from Patomi Realty Co. made available to Xxxxxxx Xxxxxx
Associates (such documentation, collectively, the "Credit Documents") and
(b) various pending agreements of purchase and sale into which FR
Acquisitions, Inc. has entered into for the purchase of certain real
properties (collectively, the "Pending Contracts"), except in each case for
defaults that, in the aggregate, are not reasonably expected to have a
Material Adverse Effect.
(ii) The execution and delivery of this Agreement and the Deposit
Agreement and the performance of the obligations and the consummation of
the transaction 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) the Credit Documents and the
Pending Contracts; (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 the Company, the Operating Partnership, FIMC, the
Mortgage Partnership, FIH, FII, FIHC, or FIIC, 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.
29
(iii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened that do, or are likely to,
have a Material Adverse Effect.
(iv) The information in the Prospectus Supplement under "Prospectus
Supplement Summary - Recent Developments -Debt Financing", and in the 10-K
under Item 2 "The Properties, - Mortgage Loans" (except for the 1994
Mortgage Loan) 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) You shall have received on the Closing Date and the Option Closing
Date, as the case may be, an opinion, dated the Closing Date and the Option
Closing Date, as the case may be, of Xxxxxx & Xxxxx, counsel for the
Underwriters, as to the matters referred to in clause (i) (with respect to the
Company only) of Section 8(g) and clauses (v) and (viii) of Section 8(f) and in
addition, Xxxxxx & Xxxxx shall make statements similar to those contained in the
second paragraph following clause (xviii) of Section 8(f) hereto and shall be
entitled to rely on those persons described in the third paragraph following
clause (xviii) Section 8(f) hereto with respect to the matters described
therein.
(j) At the Closing Date, the Shares shall have the ratings accorded by the
"nationally recognized statistical organizations," as defined by the Commission
for purposes of Rule 436(g)(2) under the Act, as specified in Section 6(ac)
hereto, and the Company shall have delivered to Xxxxx Xxxxxx Inc. a letter,
dated as of such date, from each such rating organization, or other evidence
satisfactory to Xxxxx Xxxxxx Inc., confirming that the Shares have such ratings.
Since the date hereof, there shall not have occurred a downgrading in the rating
assigned to the Shares or any of the Company's securities or the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Shares or any
of the Company's securities or the Operating Partnership's other securities.
(k) On the date hereof, Coopers & Xxxxxxx L.L.P. shall have furnished to
the Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the Underwriters (and to
its counsel), confirming that they are independent public accountants with
respect to the Company and its Subsidiaries as required by the Act and with
respect to the financial and other statistical and numerical information
contained in the Registration Statement and containing statements and
information of the type ordinarily included in accountants' "comfort letters" as
set forth in the AICPA's Statement on Auditing Standards 72. At the Closing Date
and, as to the Additional Shares, at any Option Closing Date, Coopers & Xxxxxxx
L.L.P. shall have furnished to the Underwriters a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from it, that nothing has come to its
attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to
the Closing Date and the applicable Option Closing Date, as the case may be,
30
which would require any change in its letter dated the date hereof if it were
required to be dated and delivered at the Closing Date and the applicable Option
Closing Date, as the case may be.
(l) At the Closing Date, the Shares shall have been approved for listing on
the NYSE upon official notice of issuance.
(m) The Company and its Subsidiaries shall not have failed at or prior to
the Closing Date and any applicable Option Closing Date, as the case may be, to
perform or comply with any of the agreements pursuant to Section 5 herein
contained and required to be performed or complied with by the Company at or
prior to the Closing Date and the Option Closing Date, as the case may be.
(n) At the Closing Date and, if later, at any applicable Option Closing
Date, counsel for the Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Shares, as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
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 Xxxxxx & Xxxxx, counsel for the
Underwriters.
9. Effective Date of Agreement; Termination; Default by One or More
Underwriters. This Agreement shall become effective upon the execution of this
Agreement.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been a Material Adverse Effect, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and would, in your judgment, make it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus or to enforce
contents for the resale of the Shares, (iii) the suspension or material
limitation of trading in securities on the NYSE or the American Stock Exchange
or material limitation on prices for securities on either of such exchanges,
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion would result in a Material Adverse Effect, (v)
the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
31
If on the Closing Date or on an applicable Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Firm Shares or
Additional Shares, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the non-defaulting
Underwriters, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Firm Shares or Additional Shares, as the case may be,
which such defaulting Underwriter or Underwriters, as the case may be, agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Firm Shares or Additional Shares, as the case may be, which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or on an applicable Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares, or Additional Shares, as the case may be, and
the aggregate number of Firm Shares or Additional Shares, as the case may be,
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares or Additional Shares, as the case may be, to be
purchased on such date by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date or the applicable Option Closing Date, as
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
10. Information Furnished by the Underwriters. The names of the
Underwriters set forth on the cover page, the stabilization legend on the inside
front cover, and the statements in the chart and the third, sixth and seventh
(with respect to the last sentence only) paragraphs under the caption
"Underwriting" in the Prospectus, constitute the only information furnished by
or on behalf of the Underwriters through you as such information is referred to
in Section 7.
11. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to First
Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx X.
Xxxxxxxxx, Esq. and (b) if to you, c/o Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager, Investment Banking Division, with
a copy to Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention
of Xxxxxx X.
32
King, Jr., or in any case to such other address as the person to be notified may
have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Company, the
officers or directors of the Company or any controlling person of the Company
and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of Sections
5(k) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company or the Operating Partnership to
comply with the terms or to fulfill any of the conditions of this Agreement, the
Company and the Operating Partnership agree to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Operating
Partnership and the Underwriters, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York applicable to contracts made and to be performed in New
York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
33
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Operating Partnership, and the several Underwriters.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By:
-----------------------------------------
Name:
Title:
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
as its sole general partner
By:
-----------------------------------------
Name:
Title:
XXXXX XXXXXX INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
As representatives of the
several Underwriters listed
on Schedule I hereto
By: XXXXX XXXXXX INC.
By:
-----------------------------------------
Name:
Title:
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------
Xxxxx Xxxxxx Inc......................................... 1,435,000
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation...... 1,435,000
X.X. Xxxxxxx & Sons, Inc................................. 70,000
Alex. Xxxxx & Sons, Incorporated......................... 70,000
Bear, Xxxxxxx & Co. Inc.................................. 70,000
Xxxx Xxxxxxxx Incorporated............................... 70,000
Xxxxxx, Read & Co. Inc................................... 70,000
EVEREN Securities, Inc................................... 70,000
Xxxxxxx, Xxxxx & Co...................................... 70,000
XX Xxxxxx Securities Inc................................. 70,000
Xxxxxxxxxxx & Co., Inc................................... 70,000
Prudential Securities Incorporated....................... 70,000
The Xxxxxxxx-Xxxxxxxx Company, Inc....................... 70,000
Xxxxx & Company.......................................... 20,000
Xxxxxxxxxx & Co. Inc..................................... 20,000
First of Michigan Corporation............................ 20,000
Gruntal & Co., Incorporated.............................. 20,000
X.X. Xxxxxxxx & Co....................................... 20,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc.............................. 20,000
Xxxxxxx Cabot & Company, Inc............................. 20,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated..................... 20,000
XxXxxxxx & Company Securities, Inc....................... 20,000
XxXxxx, Xxxxx & Co., Inc................................. 20,000
Xxxxxx, Xxxxxx & Company, Inc............................ 20,000
Xxxxx Xxxxxxx Inc........................................ 20,000
Principal Financial Securities, Inc...................... 20,000
Xxxxxxxx Xxxxxx Refsnes, Inc............................. 20,000
Xxxxxxx Xxxxx & Associates, Inc.......................... 20,000
Xxxxxxxx Inc............................................. 20,000
Xxxxxx Xxxxxxx Incorporated.............................. 20,000
U.S. Clearing Corp....................................... 20,000
---------
Total.................... 4,000,000
=========
35
SCHEDULE II
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
------- ------------
First Industrial, L.P. Alabama
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Alabama
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois
Michigan
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
36
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Alabama
Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Alabama
Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Alabama
Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial (Atlanta) Management Corporation Georgia
Illinois
37
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia*
Illinois*
Michigan*
Minnesota*
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
--------------------------
*Denotes jurisdictions on which counsel is opining.
38
