Execution Version
First Industrial Realty Trust, Inc.
50,000 Shares
Depositary Shares Each Representing 1/100 of a Share of
Series F Flexible Cumulative Redeemable Preferred Stock
(Five-Year Initial Fixed Rate Period)
(Liquidation Preference Equivalent to $1,000 per Depositary Share
of Series F Preferred Stock)
25,000 Shares
Depositary Shares Each Representing 1/100 of a Share of
Series G Flexible Cumulative Redeemable Preferred Stock
(Ten-Year Initial Fixed Rate Period)
(Liquidation Preference Equivalent to $1,000 per Depositary Share
of Series G Preferred Stock)
Underwriting Agreement
May 18, 2004
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON LLC
WACHOVIA CAPITAL MARKETS, LLC
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland Corporation (the
"Company"), by this agreement (the "Agreement") proposes to issue and sell to
the underwriters named in Schedule I hereto (collectively, the "Underwriters"),
50,000 depositary shares (the "Series F Depositary Shares"), each representing
1/100 of a share of the Series F Flexible Cumulative Redeemable Preferred Stock
(Five-Year Initial Fixed Rate Period) (the "Series F Preferred Shares"), having
a liquidation preference equivalent to $1,000 per Series F Depositary Share of
the Company, and 25,000 depositary shares (the "Series G Depositary Shares," and
together with the Series F Depositary Shares, the "Depositary Shares" or the
"Securities"), each representing 1/100 of a share of the Series G Flexible
Cumulative Redeemable Preferred Stock (Ten-Year Initial Fixed Rate Period) (the
"Series G Preferred Shares," and together with the Series F Preferred Shares,
the "Preferred Shares"), having a liquidation preference equivalent to $1,000
per Series G Depositary Share of the Company, to be issued under two deposit
agreements, one pertaining to the Series F Preferred Shares and the second
pertaining to the Series G Preferred Shares (together, the "Deposit
Agreements"), each between the Company and Equiserve Trust Company, N.A., as
Depositary (the "Depositary").
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The Company and First Industrial, L.P., a Delaware limited partnership
whose sole general partner is the Company (the "Operating Partnership"), have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement (file number
333-57992) on Form S-3, relating to certain securities (the "Shelf Securities")
to be issued from time to time by the Company or the Operating Partnership, as
the case may be. The Company also has filed, or proposes to file, with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities (a "Prospectus
Supplement"). The registration statement as amended to the date of this
Agreement and including any registration statement filed pursuant to Rule 462(b)
under the Securities Act (a "Rule 462(b) Registration Statement") is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base Prospectus or any preliminary prospectus (a
"preliminary prospectus"), as the case may be, previously filed with the
Commission pursuant to Rule 424 or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Registration Statement, the Base
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under the
Exchange Act after the date of this Agreement, or the date of the Registration
Statement, the Base Prospectus, any preliminary prospectus or the Prospectus, as
the case may be, which are deemed to be incorporated by reference therein. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "described" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or Prospectus, as the case may be.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the number of Securities set forth opposite such Underwriter's name in
Schedule I hereto at a purchase price per Depositary Share of $987.50 (the
"Purchase Price") plus accrued dividends, if any, from the date specified in
Schedule II hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to make
a public offering (the "Offering") of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order
in immediately available funds on the date and at the time and place set forth
in Schedule II hereto in the section entitled "Closing Date and Time of
Delivery" (or at such other time and place on the same or such other date, not
later than the 7th Business Day thereafter, as you and the Company may agree in
writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, the Underwriters of the Securities registered in such
names and in such denominations as you shall request not less than two full
Business
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Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Company. As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City or the City of Chicago.
The time and date of such payment and delivery with respect to the Securities
are referred to herein as the "Closing Date." The Securities will be delivered
through the book entry facilities of The Depository Trust Company ("DTC") and
will be made available for inspection by you by 1:00 P.M. New York City time two
Business Days prior to the Closing Date at such place in New York City as you,
DTC and the Company shall agree.
4. Each of the Company and the Operating Partnership severally covenants
and agrees with the Underwriters as follows:
(a) In respect of the offering of the Securities, the Company will (i)
prepare a Prospectus Supplement setting forth the number of Securities
covered thereby and their terms not otherwise specified in the Base
Prospectus pursuant to which the Securities are being issued, the names of
the Underwriters participating in the offering and the number of Securities
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 Securities 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 Securities, (ii) file
the Prospectus in a form approved by you pursuant to Rule 424 under the
Securities Act within the applicable time period prescribed by such rule
for such filing and (iii) furnish copies of the Prospectus to the
Underwriters and to such dealers as you shall specify in New York City
prior to 10:00 A.M., New York City time as soon as practicable after the
date of this Agreement in such quantities as you may reasonably request;
(b) At any time when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of
Securities, the Company will advise you promptly and, if requested by you,
confirm such advice in writing, of (i) the effectiveness of any amendment
to the Registration Statement (ii) the transmittal to the Commission for
filing of any Prospectus or other supplement or amendment to the Prospectus
to be filed pursuant to the Securities Act, (iii) the receipt of any
comments from the Commission relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any of the transactions
contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (vi) the happening of any event which
makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if at any
time the Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, the Company will make every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) The Company will furnish to you without charge, such number of
conformed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and
documents incorporated by reference, as you may reasonably request. If
applicable, the copies of the Registration Statement and each amendment
thereto
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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 Securities Act or the Exchange Act in connection with sales of
Securities, not to file any amendment to the Registration Statement or any
Rule 462(b) Registration Statement or to make any amendment or supplement
to the Prospectus of which you shall not previously have been advised or to
which you or counsel for the 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 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 Securities 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 Securities Act or the Exchange Act in connection with sales of
Securities, any event shall occur as a result of which, in the opinion of
counsel for the 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;
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify, register or perfect exemptions for the Securities
for offer and sale by the several Underwriters under the applicable state
securities, Blue Sky and real estate syndication laws of such jurisdictions
as you may reasonably request; provided, however, the Company will not be
required to qualify as a foreign corporation, file a general consent to
service of process in any such jurisdiction, subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of the
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Company reasonably determines to be contrary to the best interests of the
Company and its stockholders. In each jurisdiction in which the Securities
have been so qualified or registered, the Company will use all reasonable
efforts to file such statements and reports as may be required by the laws
of such jurisdiction, to continue such qualification or registration in
effect for so long a period as the Underwriters may reasonably request for
the distribution of the Securities and to file such consents to service of
process or other documents as may be necessary in order to effect such
qualification or registration; provided, however, the Company will not be
required to qualify as a foreign corporation, file a general consent to
service of process in any such jurisdiction, subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
so subject, or provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of the Company reasonably determines to
be contrary to the best interests of the Company and its stockholders;
(g) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty days after the close of
the period covered thereby (90 days in the event the close of such period
is the close of the Company's fiscal year), an earnings statement (in form
complying with the provisions of Rule 158 of the Securities Act) covering a
period of at least twelve months after the effective date of the
Registration Statement (but in no event commencing later than 90 days after
such date) which shall satisfy the provisions of Section 11(a) of the
Securities Act, and, if required by Rule 158 of the Securities Act, to file
such statement as an exhibit to the next periodic report required to be
filed by the Company under the Exchange Act covering the period when such
earnings statement is released;
(h) During the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
the Securities, to file all documents required to be filed by it with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act;
(i) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement and any amendment thereto
(including financial statements and exhibits), the Prospectus and all
amendments and supplements to any of them prior to or during the period
specified in Section 4(e), (ii) the printing and delivery of this
Agreement, the Deposit Agreements, the remarketing agreement dated May 27,
2004 pertaining to the Series F Preferred Shares and the remarketing
agreement dated May 27, 2004 pertaining to the Series G Preferred Shares
(together, the "Remarketing Agreements"), the calculation agent agreement
dated May 27, 2004 pertaining to the Series F Preferred Shares and the
calculation agent agreement dated May 27, 2004 pertaining to the Series G
Preferred Shares (together, the "Calculation Agent Agreements") and any
Blue Sky Memorandum, (iii) the qualification or registration of the
Securities for offer and sale under the state securities, Blue Sky or real
estate syndication laws of the several states in accordance with Section
4(f) hereof, (iv) the fee of and the filings and clearance, if any, with
the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the Offering, (v) the fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (vi)
furnishing such copies of the Registration Statement, the preliminary
prospectus, the Prospectus and all amendments and supplements thereto as
may be requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom Securities may be
sold, (vii) the costs and charges of any transfer agent or registrar,
(viii) the cost and expenses of the Depositary under the Deposit Agreement,
(ix) the preparation, issuance and delivery of certificates for the
Securities to the Underwriters, (x) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors, (xi) any
transfer taxes imposed on the sale by the Company of the Securities to the
Underwriters and (xii) the fees and disbursements of the Company's counsel
and accountants;
(j) 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 and to satisfy all conditions precedent to the delivery
of the Securities;
(k) The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus Supplement
under "Use of Proceeds;"
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(l) The Company will use its best efforts to continue to qualify as a
real estate investment trust ("REIT") under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended (the "Code"), unless the
Company's board of trustees determines that it is no longer in the best
interests of the Company to be so qualified;
(m) The Company will use its best efforts to take all reasonable
action necessary to enable Standard & Poor's Corporation ("S&P") and
Xxxxx'x Investors Services, Inc. ("Moody's") or any other nationally
recognized rating organization to provide their respective credit ratings.
(n) The Company will not, at any time, directly or indirectly, take any
action intended, or which might reasonably be expected to cause or result
in, or which will constitute stabilization of the price of the Securities
to facilitate the sale or resale of any Securities in violation of the
Securities Act;
(o) The Company will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC; and
(p) Prior to the Closing Date the Company will file articles
supplementary pertaining to the Series F Preferred Shares (the "Series F
Articles Supplementary") and articles supplementary pertaining to the
Series G Preferred Shares (the "Series G Articles Supplementary") with the
Maryland State Department of Assessments and Taxation establishing and
fixing the rights and preferences of the Securities.
5. 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 as of the date hereof and at the time the Registration Statement
became effective, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did
or will comply in all material respects with all applicable provisions of
the Securities Act and will contain all statements required to be stated
therein in accordance with the Securities Act. The Prospectus, including
the financial statements, schedules and related notes included or
incorporated by reference in the Prospectus as of the date hereof and at
the time the Registration Statement became effective, and at 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
Securities Act and will contain all statements required to be stated
therein in accordance with the Securities Act. On the date the Registration
Statement was declared effective, on the date hereof, on the date of filing
of any Rule 462(b) Registration Statement and on 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
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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 Securities, the Company and
the Operating Partnership will have complied or will comply with the
requirements of Rule 111 under the Securities Act relating to the payment
of filing fees therefor. The foregoing representations and warranties in
this Section 5(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 or the Operating Partnership by the
Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. Neither the Company nor
the Operating Partnership has distributed, and prior to the later of the
Closing Date and the completion of the distribution of the Securities, will
not distribute, any offering material in connection with the offering or
sale of the Securities other than the Registration Statement, the
preliminary prospectus, the Prospectus or any other materials, if any,
permitted by the Securities Act (which were disclosed to the Underwriters
and the Underwriters' counsel).
(c) Any preliminary prospectus supplements, filed pursuant to Rule 424
under the Securities Act and each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Securities Act; did not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with the
offering of Securities will, at the time of such delivery, be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act, at the time they were, or hereafter are, filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and, when read together with other
information included in, and incorporated by reference in, the Prospectus,
at the time the Registration Statement became effective, as of the date of
the Prospectus and as of the Closing Date, or during the period specified
in Section 4(e) did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 5(d) do not apply to any statements or omissions made in reliance
on and in conformity with information relating to any Underwriter furnished
in writing to the Company or the Operating Partnership by the 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. The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under and by
virtue of the Delaware Revised Uniform Limited Partnership Act. Each of
First Industrial Financing Partnership, L.P. (the "Financing Partnership"),
First Industrial Securities, L.P. ("Securities, L.P."), First Industrial
Mortgage Partnership, L.P. (the "Mortgage Partnership") and First
Industrial Pennsylvania, L.P. ("FIP"), First Industrial Harrisburg, L.P.
("FIH") and First Industrial Indianapolis, L.P. ("FII") (the Financing
Partnership, Securities, L.P., the Mortgage Partnership, FIH, FII 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. First Industrial Alrai, LLC ("FIA") has been
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duly organized and is validly existing as a limited liability company in
good standing under and by virtue of the laws of its jurisdiction of
organization. Each of First Industrial Securities Corporation ("FISC"),
First Industrial Indianapolis Corporation ("FIIC"), First Industrial
Finance Corporation ("FIFC"), First Industrial Mortgage Corporation
("FIMC"), First Industrial Development Services, Inc. ("FIDSI") and First
Industrial Pennsylvania Corporation ("FIPC"), (FISC, FIIC, FIFC, FIMC,
FIDSI and FIPC are referred to collectively herein as the "Corporate
Subsidiaries," and the Partnership Subsidiaries and the Corporate
Subsidiaries are referred to herein collectively as the "Subsidiaries" or
individually as a "Subsidiary"), has been duly organized and is validly
existing as a corporation in good standing under and by virtue of the laws
of its jurisdiction of incorporation. Other than the 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 FIH. FIDSI is a wholly-owned subsidiary
of the Operating Partnership. The Operating Partnership is the sole limited
partner of each Partnership Subsidiary (except for Securities, L.P.). The
Company, the Operating Partnership and each of the Subsidiaries has, and at
the Closing Date will have, full corporate, partnership or limited
liability company power and authority, as the case may be, to conduct all
the activities conducted by it, to own, lease or operate all the properties
and other assets owned, leased or operated by it and to conduct its
business in which it engages or proposes to engage as described in the
Prospectus and the transactions contemplated hereby and thereby. The
Company and each of the Corporate Subsidiaries is, and at the Closing Date
will be, duly qualified or registered to do business and in good standing
as a foreign corporation in all jurisdictions in which the nature of the
activities conducted by it or the character of the properties and assets
owned, leased or operated by it makes such qualification or registration
necessary, except where failure to obtain such qualifications or
registration will not have a material adverse effect on (i) the condition,
financial or otherwise, or the earnings, assets or business affairs or
prospects of the Operating Partnership, Company and their Subsidiaries,
taken as a whole or on the 825 in service properties owned, directly or
indirectly, by the Company as of March 31, 2004 (the "Properties") taken as
a whole, (ii) the issuance, validity or enforceability of the Securities or
(iii) the consummation of any of the transactions contemplated by this
Agreement (each a "Material Adverse Effect"), which jurisdictions of
foreign qualification or registration are identified in Schedule III
hereto. The Operating Partnership and each of the Partnership Subsidiaries
is, and at the Closing Date will be, duly qualified or registered to do
business and in good standing as a foreign limited partnership in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned, leased or operated by it makes such
qualification or registration necessary, except where failure to obtain
such qualification or registration will not have a Material Adverse Effect,
which jurisdictions of foreign qualification or registration are identified
in Schedule III hereto. Complete and correct copies of the articles of
incorporation and of the by-laws of the Company, the certificate of limited
partnership and agreement of limited partnership of the Operating
Partnership and the charter documents, partnership agreements and other
organizational documents of the Subsidiaries and all amendments thereto as
have been requested by the Underwriters or their counsel have been
delivered to the Underwriters or their counsel;
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(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 Securities have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when validly
issued and delivered pursuant to this Agreement against payment of the
Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right
and will have been offered and sold in compliance, in all material
respects, with all applicable laws (including, without limitation, federal
or state securities laws). The description of the Securities, and the
statements related thereto, contained in the Registration Statement or the
Prospectus are, and at the Closing Date, will be, complete and accurate in
all material respects. Upon payment of the Purchase Price and delivery of
certificates representing the Securities in accordance herewith, each of
the Underwriters will receive good, valid and marketable title to the
Securities, free and clear of all security interests, mortgages, pledges,
liens, encumbrances, claims and equities. The form of depositary receipts
to be used to evidence the Securities will be in due and proper form and
will comply, in all material respects, with all applicable legal
requirements. No shares of common or preferred stock of the Company are
reserved for any purpose other than securities to be issued pursuant to
this Agreement and except as disclosed in the Prospectus.
(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 general partner and a limited partner and the partnership
agreement of each Partnership Subsidiary will have been duly authorized,
validly executed and delivered by each partner thereto and (assuming in the
case of the Operating Partnership the due authorization, execution and
delivery of the partnership agreement by each limited partner other than
the Company) each such partnership agreement will be a valid, legally
binding and enforceable in accordance with its terms immediately following
the Closing Date subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought. All of the issued and outstanding shares of capital stock of the
Company and each Corporate Subsidiary, all of the outstanding units of
general, limited and/or preferred partner interests of the Operating
Partnership and each Partnership Subsidiary will have been duly authorized
and are validly issued, fully paid and non-assessable; and (except as
described in the Prospectus) will be owned directly or indirectly (except
in the case of the Company) by the Company or the Operating Partnership, as
the case may be, free and clear of all security interests, liens and
encumbrances (except for pledges in connection with the loan agreements of
the Company, the Operating Partnership and the Subsidiaries), and all of
the partnership interests in each Partnership Subsidiary will have been
duly authorized and are validly issued, fully paid, and (except as
described in the Prospectus) will be owned directly or indirectly by the
Company or the Operating Partnership, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with
the loan agreements of the Company, the Operating Partnership and the
Subsidiaries);
(h) The financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Registration Statement
and the Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly
the consolidated financial condition of the entity or entities or group
presented or
9
included therein, as of the respective dates thereof, and its consolidated
results of operations and cash flows for the respective periods covered
thereby, are all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Prospectus. The financial
information and data included in the Registration Statement and the
Prospectus present fairly the information included or incorporated by
reference therein and have been prepared on a basis consistent, except as
may be noted therein, with that of the financial statements, schedules and
notes included or incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the respective entity or
entities or group presented or included therein. Except as otherwise noted
in the Prospectus, pro forma and/or as adjusted financial information
included or incorporated by reference in the Prospectus has been prepared
in accordance with the applicable requirements of the Securities Act and
the American Institute of Certified Public Accountants ("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and
includes all adjustments necessary to present fairly the pro forma and/or
as adjusted financial condition of the entity or entities or group
presented or included therein at the respective dates indicated and the
results of operations and cash flows for the respective periods specified.
The Company's and the Operating Partnership's ratio of combined fixed
charges and preferred stock dividends to earnings included in the
Prospectus and in Exhibit 12 to the Registration Statement 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,
the Operating Partnership and the Partnership Subsidiaries or any
predecessor of the Company and/or the Operating Partnership and the
Partnership Subsidiaries are required by the Act or the Exchange Act to be
included in the Registration Statement or the Prospectus.
PricewaterhouseCoopers LLP (the "Accountants") who have reported on such
financial statements, schedules and related notes, are independent public
accountants with respect to the Company, the Operating Partnership and the
Partnership Subsidiaries as required by the Securities 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 each of the Company, the Operating Partnership
or any of the Subsidiaries which would be material to the Company, the
Operating Partnership and the Subsidiaries considered as one enterprise
(anything which would be material to the Operating Partnership, the Company
and the Subsidiaries, considered as one enterprise, being hereinafter
referred to as "Material"), (ii) except as described in the Prospectus,
neither the Operating Partnership, the Company nor any of the Subsidiaries
has incurred nor will any of them incur any liabilities or obligations,
direct or contingent, which would be Material, nor has any of them entered
into nor will any of them enter into any transactions, other than pursuant
to this Agreement and the transactions referred to herein or as
contemplated in the Prospectus, which would be Material, (iii) there has
not been any Material Adverse Effect, (iv) except for regular quarterly
distributions on the Company's shares of common stock, par value $0.01 per
share (the "Common Stock"), and the dividends on the shares of the
Company's (a) Depositary Shares each representing 1/100 of a share of 8?%
Series C Cumulative Preferred Stock (the "Series C Preferred Stock"), (b)
Depositary Shares each representing 1/100 of a share of 7.95% Series D
Cumulative Preferred Stock (the "Series D Preferred Stock") and (d)
Depositary Shares each representing 1/100 of a share of 7.90% Series E
Cumulative Preferred Stock (the "Series E Preferred Stock"), the Company
has not paid or declared and will not pay or declare any dividends or other
distributions of any kind on any class of its capital stock, and (v) except
for distributions in connection with regular quarterly distributions on
partnership units, the Operating Partnership has not paid any distributions
of any kind on its partnership units;
10
(j) Neither the Company, the Operating Partnership nor any of the
Subsidiaries is, or as of the Closing Date will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
(k) To the knowledge of the Company or the Operating Partnership,
after due inquiry, except as set forth in the Registration Statement and
the Prospectus, there are no actions, suits, proceedings, investigations or
inquiries, pending or, after due inquiry, threatened against or affecting
the Operating Partnership, the Company or any of the Subsidiaries or any of
their respective officers or directors in their capacity as such or of
which any of their respective properties or assets or any Property is the
subject or bound, before or by any Federal or state court, commission,
regulatory body, administrative agency or other governmental body, domestic
or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect;
(l) The Company, the Operating Partnership and each of the
Subsidiaries (i) has, and at the Closing Date will have, (A) all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus and are in material compliance with such, and (B) complied in
all material respects with all laws, regulations and orders applicable to
it or its business and (ii) are not, and at the Closing Date will not be,
in breach of or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract, joint venture or partnership agreement or other
agreement or instrument (collectively, a "Contract or Other Agreement") or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of
its other assets or properties or by which the Properties are bound or
affected, except where such default, breach or failure will not, either
singly or in the aggregate, have a Material Adverse Effect. To the
knowledge of the Operating Partnership, the Company and each of the
Subsidiaries, after due inquiry, no other party under any Material contract
or other agreement to which it is a party is in default thereunder, except
where such default will not have a Material Adverse Effect. Neither the
Operating Partnership, the Company nor any of the Subsidiaries is, nor at
the Closing Date will any of them be, in violation of any provision of its
articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other organizational document, as the case may be;
(m) No Material consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body or any
other entity is required in connection with the offering, issuance or sale
of the Securities hereunder except such as have been obtained under the
Securities Act, the Exchange Act and such as may be required under state
securities, Blue Sky or real estate syndication laws or the by-laws, the
corporate financing rule or the conflict of interests rule of the NASD in
connection with the purchase and distribution by the Underwriters of the
Securities or such as have been received prior to the date of this
Agreement, and except for the filing of this Agreement and the form of
Securities 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 each of this
Agreement, the Deposit Agreements, the Remarketing Agreements and the
Calculation Agent Agreements and to execute, deliver and file the Series F
Articles Supplementary and the Series G Articles Supplementary, to the
extent each is a party thereto. Each of this Agreement, the Deposit
Agreements, the Remarketing Agreements and the Calculation Agent Agreements
has been duly and validly authorized, executed and delivered by the Company
and the Operating Partnership, to the extent a party
11
thereto, constitutes a valid and binding agreement of the Company and the
Operating Partnership, and assuming due authorization, execution and
delivery by the Underwriters, and is enforceable against the Operating
Partnership in accordance with the terms hereof and thereof, subject to (i)
the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered
in a proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought. The execution, delivery and
performance of this Agreement, the Series F Articles Supplementary, the
Series G Articles Supplementary, the Deposit Agreements, the Remarketing
Agreements and the Calculation Agent Agreements, and the consummation of
the transactions contemplated hereby, and compliance by each of the
Company, the Operating Partnership and the Subsidiaries with its
obligations hereunder to the extent each is a party thereto, will not
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets or properties of the Operating Partnership, the
Company or any of the Subsidiaries pursuant to the terms or provisions of,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate
any of its obligations under, or result in the acceleration of any
obligation under, the certificate of incorporation, by-laws, certificate of
limited partnership, partnership agreement or other organizational
documents of the Operating Partnership, the Company or any of the
Subsidiaries, any Contract or Other Agreement to which the Company, the
Operating Partnership or any of the Subsidiaries is a party or by which the
Company, the Operating Partnership or any of the Subsidiaries or any of
their assets or properties are bound or affected, or violate or conflict
with any judgment, ruling, decree, order, statute, rule or regulation of
any court or other governmental agency (foreign or domestic) or body
applicable to the business or properties of the Operating Partnership, the
Company or any of the Subsidiaries or to the Properties, in each case
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, the Company, the Operating Partnership and
each of the Subsidiaries will have good and marketable title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are described in the Registration Statement or the
Prospectus, or such as secure the loan facilities of the Operating
Partnership, the Company and the Subsidiaries, or would not result in a
Material Adverse Effect;
(p) Each of the Deposit Agreements, the Remarketing Agreements and the
Calculation Agent Agreements have been duly authorized by the Company and,
at the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Deposit Agreements, the Remarketing Agreements and the Calculation Agent
Agreements by the other respective parties thereto, each of the Deposit
Agreements, the Remarketing Agreements and the Calculation Agent Agreements
will, at the Closing Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their
respective terms (except to the extent that enforcement thereof may be
limited by (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), and each of the Deposit
Agreements, the Remarketing Agreements and the Calculation Agent Agreements
will conform in all material respects to all statements relating thereto
contained in the Prospectus;
12
(q) 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;
(r) The Operating Partnership, the Company and the Partnership
Subsidiaries have property, title, casualty and liability insurance in
favor of the Operating Partnership, the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Operating Partnership, the Company and the Partnership
Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks;
(s) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Company and the Subsidiaries, after due
inquiry, the operations of the Operating Partnership, the Company and the
Subsidiaries are in compliance with all Environmental Laws (as defined
below) and all requirements of applicable permits, licenses, approvals and
other authorizations issued pursuant to Environmental Laws; (ii) to the
knowledge of the Operating Partnership, the Company and the Subsidiaries,
after due inquiry, none of the Operating Partnership, the Company or the
Subsidiaries has caused or suffered to occur any Release (as defined below)
of any Hazardous Substance (as defined below) into the Environment (as
defined below) on, in, under or from any Property, and no condition exists
on, in, under or adjacent to any Property that could reasonably be expected
to result in the incurrence of liabilities under, or any violations of, any
Environmental Law or give rise to the imposition of any Lien (as defined
below), under any Environmental Law; (iii) none of the Operating
Partnership, the Company or the Subsidiaries has received any written
notice of a claim under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on, in, under or originating
from any Property; (iv) none of the Operating Partnership, the Company or
the Subsidiaries has actual knowledge of, or received any written notice
from any Governmental Authority (as defined below) claiming, any violation
of any Environmental Law or a determination to undertake and/or request the
investigation, remediation, clean-up or removal of any Hazardous Substance
released into the Environment on, in, under or from any Property; and (v)
no Property is included or, to the knowledge of the Operating Partnership,
the Company or the Subsidiaries, after due inquiry, proposed for inclusion
on the National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency (the "EPA"), or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of
the Operating Partnership, the Company or the Subsidiaries has actual
knowledge that any Property has otherwise been identified in a published
writing by the EPA as a potential CERCLA removal, remedial or response site
or, to the knowledge of the Company and its Subsidiaries, is included on
any similar list of potentially contaminated sites pursuant to any other
Environmental Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil,
13
petroleum or any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCB's, 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 Operating Partnership, the Company or any of the
Subsidiaries, and none of them nor any of their directors, officers or
employees is connected with the Operating Partnership, the Company or any
of the Subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee.
(t) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so that the Company qualifies as a REIT
under Sections 856 through 860 of the Code and the Company has elected to
be taxed as a REIT under the Code commencing with the taxable year ended
December 31, 1994. The Company, the Operating Partnership and the
Subsidiaries intend to continue to be organized and operate so that the
Company shall qualify as a REIT for the foreseeable future, unless the
Company's board of trustees determines that it is no longer in the best
interests of the Company to be so qualified;
(u) There is no material document or contract of a character required
to be described or referred to in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement which
is not described or filed as required therein, except for the filing of
this Agreement, the Deposit Agreements, the Remarketing Agreements, the
Calculation Agent Agreements and the form of Securities 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;
14
(v) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
is any such dispute threatened which would be Material;
(w) The Operating Partnership, the Company and the Subsidiaries own,
or are licensed or otherwise have the full exclusive right to use, all
material trademarks and trade names which are used in or necessary for the
conduct of their respective businesses as described in the Prospectus. To
the knowledge of the Company or the Operating Partnership, no claims have
been asserted by any person to the use of any such trademarks or trade
names or challenging or questioning the validity or effectiveness of any
such trademark or trade name. The use, in connection with the business and
operations of the Operating Partnership, the Company and the Subsidiaries,
of such trademarks and trade names does not, to the Company's or the
Operating Partnership's knowledge, infringe on the rights of any person;
(x) Each of the Operating Partnership, the Company and the
Subsidiaries has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
the failure to so file would not result in a Material Adverse Effect) and
has paid all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing would
otherwise be delinquent, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect;
(y) The Operating Partnership and each of the Partnership Subsidiaries
is properly treated as a partnership for U.S. federal income tax purposes
and not as a "publicly traded partnership;"
(z) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of the
Company, the Operating Partnership or the Subsidiaries on the other hand,
which is required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
(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
Securities, and the Company and the Operating Partnership have not
distributed and have agreed not to distribute any prospectus or other
offering material in connection with the offering and sale of the
Securities other than the Prospectus, any preliminary prospectus filed with
the Commission or other material permitted by the Securities Act (which
were disclosed to you and your counsel);
(bb) 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;
(cc) Any certificate or other document signed by any officer or
authorized representative of the Operating Partnership, the Company or any
Subsidiary, and delivered to the
15
Underwriters or to counsel for the Underwriters in connection with the sale
of the Securities shall be deemed a representation and warranty by such
entity or person, as the case may be, to each Underwriter as to the matters
covered thereby;
(dd) The Securities will have an investment grade rating from one or
more nationally recognized statistical rating organizations as specified in
Schedule II hereto; and
(ee) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been instituted, or to the
knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the Prospectus or any preliminary
prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
6. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including without limitation the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly for
use therein; provided, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement that
was the cause of such losses, claims, damages or liabilities, is eliminated or
remedied in the Prospectus (as amended or supplemented if the Company or the
Operating Partnership shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person, provided
further that the Company and the Operating Partnership shall have complied with
their obligations under Section 4(a) hereof with respect to the Prospectus (as
so amended or supplemented).. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors and each person who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company and the Operating Partnership in writing by such
Underwriter through you expressly for use in the
16
Registration Statement, the Prospectus, any amendment or supplement thereto. For
purposes of this Section 6 and Section 5(b), the only written information
furnished by the Underwriters to the Company expressly for use in the
Registration Statement and the Prospectus Supplement is the information in the
fourth (excepting the first and second sentences of such paragraph), seventh,
eighth and ninth paragraphs under the caption "Underwriting."
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by
Xxxxxx Brothers Inc. and any such separate firm for the Company, the Operating
Partnership, their directors, their officers and such control persons of the
Company and the Operating Partnership or authorized representatives shall be
designated in writing by the Company or the Operating Partnership. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. If it is
ultimately determined that an Indemnified Person was not entitled to
indemnification hereunder, such Indemnified Person shall be responsible for
repaying or reimbursing the Indemnifying Person for any amounts so paid or
incurred by such Indemnifying Person pursuant to this paragraph. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
(i) includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding and (ii) does
not include a statement as to, or an admission of, fault, culpability or a
failure to act by or behalf of an indemnified party. In no event shall any
Indemnifying Person have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to any pending or threatened action or claim effected without its prior
written consent.
If the indemnification provided for in the first and second paragraphs of
this Section 6 is unavailable or insufficient to hold harmless an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
17
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on the
one hand and the Underwriters on the other hand from the offering of the
Securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Securities (before deducting expenses) received by the
Company and the Operating Partnership and the total underwriting discounts and
the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company and the
Operating Partnership on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Operating
Partnership on the one hand or by the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
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
Securities 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 6 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint.
The remedies provided for in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 6 and
the representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Operating Partnership and (c)
acceptance of and payment for any of the Securities.
7. The several obligations of the Underwriters hereunder shall be subject
to the performance by the Company and the Operating Partnership of their
respective obligations hereunder and to satisfaction of each of the following
conditions:
18
(a) 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 or the
Prospectus shall be in effect, and no proceedings for such purpose shall
have been commenced or shall be pending before or threatened by the
Commission to the knowledge, after due inquiry, of the Company or the
Operating Partnership; no stop order suspending the effectiveness of the
Registration Statement or the Prospectus shall be in effect and no
proceedings for such purpose shall have been commenced or shall be pending
before or threatened by the state securities authority of any jurisdiction,
to the knowledge of the Company or the Operating Partnership; and all
requests for additional information on the part of the Commission shall
have been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and correct
on the Closing Date, with the same force and effect as if made on and as of
the Closing Date and the Company and the Operating Partnership shall have
complied with all agreements and all conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company or the Operating Partnership by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any
material change in the capital stock, partners' equity or long-term debt of
the Company, the Operating Partnership or any of the Subsidiaries on a
consolidated basis, except as described or contemplated in the Prospectus,
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, properties, financial position, stockholders'
equity, partners' equity or results of operations of the Company, the
Operating Partnership and the Subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which in
the judgment of Xxxxxx Brothers Inc. makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus; and other than
as set forth in the Prospectus, no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a
certificate signed by the Chief Executive Officer of the Company and the
Chief Financial Officer of the Company, in their capacities as officers of
the Company, on behalf of the Company for itself and as general partner of
the Operating Partnership, satisfactory to you to the effect set forth in
subsections (a) through (d) of this Section 7(e);
19
(f) you shall have received on the Closing Date, an opinion or
opinions (satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company and
the Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule III hereto, and
each Corporate Subsidiary 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 III hereto, in
each case except where the failure to obtain such qualification or
registration will not have a Material Adverse Effect.
(ii) The Operating Partnership and each of the Partnership
Subsidiaries has been duly formed and is validly existing as a limited
partnership in good standing under the laws of its state of
organization. The Operating Partnership and each of the Partnership
Subsidiaries has all requisite partnership power and authority to own,
lease and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case,
as described in the Prospectus, and the Operating Partnership has the
partnership power to enter into and perform its obligations under this
Agreement and the Remarketing Agreements. The Operating Partnership
and each of the Partnership Subsidiaries is duly qualified or
registered as a foreign partnership and is in good standing in each
jurisdiction identified with an asterisk in Schedule III hereto, in
each case except where the failure to obtain such qualification or
registration will not have a Material Adverse Effect.
(iii) To the knowledge of such counsel, other than shares
reserved for issuance pursuant to the Company's Shareholder Rights
Plan, 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 Depositary Shares of preferred stock of the Company.
To the knowledge of such counsel, all of the outstanding partnership
interests of the Operating Partnership and each of the Partnership
Subsidiaries have been duly authorized, validly issued and fully paid
and, except for Units not owned by the Company, are owned directly or
indirectly by the Company or the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership or the Subsidiaries is in violation of or
default under its charter, bylaws, certificate of limited partnership
or partnership agreement, as the case may be, and none of such
entities is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any document
(as in effect on the date of such opinion) listed as an exhibit to the
Registration Statement or of the Company's and the Operating
Partnership's Annual Report on Form 10-K for the year ended December
31, 2003 or Quarterly Report on Form 10-Q for the quarter ended March
31, 2004, in each case as amended, if applicable, to which such entity
is a party or by which such entity may be bound, or to which any of
the property or assets of such entity or any Property subject to or
bound by (it being understood that (i) such counsel need express no
opinion with respect to matters relating to any contract, indenture,
mortgage, loan agreement, note lease, joint venture or partnership
agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing
of any property or assets of such entity or any other Property and
(ii) such
20
counsel may assume compliance with the financial covenants contained
in any such document), except in each case for violations or defaults
which in the aggregate are not reasonably expected to have a Material
Adverse Effect.
(v) This Agreement and the Remarketing Agreements were duly and
validly authorized, executed and delivered by each of the Company and
the Operating Partnership and the Deposit Agreements and the
Calculation Agent Agreements were duly and validly authorized executed
and delivered by the Company.
(vi) The Registration Statement has been declared effective under
the Securities Act, the Prospectus was filed with the Commission
pursuant to Rule 424, within the applicable time period prescribed by
Rule 424, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement or the
Prospectus has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The execution and delivery of this Agreement, the Series F
Articles Supplementary, the Series G Articles Supplementary, the
Deposit Agreements, the Remarketing Agreements and the Calculation
Agent Agreements and the issuance and sale of the Depositary Shares
and the performance by the Company and the Operating Partnership of
their respective obligations under the Depositary Shares, this
Agreement, the Deposit Agreements, the Remarketing Agreements and the
Calculation Agent Agreements, to the extent they are a party thereto,
did not and do not conflict with or constitute a breach or violation
of or default under: (1) any document (as in effect as of the date of
such opinion) listed as an exhibit to the Registration Statement, each
of the Company's Annual Report on Form 10-K for the year ended
December 31, 2003 or Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004, in each case as amended, if applicable, to which
any such entity is a party or by which it or any of them or any of
their respective properties or other assets may be bound or subject
and of which such counsel is aware (it being understood that (i) such
counsel need express no opinion with respect to matters relating to
any contract, indenture, mortgage, loan agreement, note lease, joint
venture or partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
management or financing of any property or assets of such entity or
any other Property and (ii) such counsel may assume compliance with
the financial covenants contained in any such document); (2) the
certificate of limited partnership or partnership agreement, as the
case may be, of the Operating Partnership and the Financing
Partnership or the articles of incorporation or bylaws, as the case
may be, of the Company, FIFC or FISC; or (3) any applicable law, rule
or administrative regulation, except in each case for conflicts,
breaches, violations or defaults that in the aggregate are not
reasonably expected to have a Material Adverse Effect.
(viii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any court or governmental
authority or agency or any other entity is required in connection with
the offering, issuance or sale of the Depositary Shares hereunder,
except such as may be required under the Securities Act, the bylaws,
corporate financing rule and conflict of interest rule of the NASD, or
state securities, Blue Sky or real estate syndication laws, or such as
have been received prior to the date of such opinion.
21
(ix) The Registration Statement, at the time it became effective
and the Prospectus, as of the date of the Prospectus Supplement, in
each case, other than the financial statements, including the notes
and schedules thereto, and other financial and statistical data that
is found in or derived from the internal accounting records of the
Company, the Operating Partnership or their respective subsidiaries
set forth in or incorporated by reference therein, as to which no
opinion need be rendered, complied as to form in all material respects
with the requirements of the Securities Act and the Exchange Act.
(x) Each of the Underwriters is receiving good, valid and
marketable title to the Depositary Shares, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims
and equities if the Underwriters acquire such Depositary Shares in
good faith and without notice of any such security interests,
mortgages, pledges, liens, encumbrances, claims or equities.
(xi) The information in the Prospectus Supplement under
"Description of the Preferred Shares," "Certain United States Federal
Income Tax Consequences," and in the Prospectus under "Risk Factors,"
"Description of Preferred Stock," "Description of Depositary Shares,"
"Restrictions on Transfers of Capital Stock," and "Federal Income Tax
Considerations" (as modified by the information in the Prospectus
Supplement), to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, or summaries of
documents or legal conclusions, has been reviewed by us and is correct
in all material respects and presents fairly the information required
to be disclosed therein.
(xii) To such counsel's knowledge, there is no document or
contract of a character required to be described or referred to in the
Registration Statement and Prospectus or to be filed as exhibits
thereto by the Securities Act other than those described or referred
to therein or filed as exhibits thereto, and the descriptions thereof
or references thereto are accurate in all material respects.
(xiii) The partnership agreement of each of the Operating
Partnership, Securities, L.P. and the Financing Partnership has been
duly authorized, validly executed and delivered by each of the Company
and the Partnership Subsidiaries, to the extent they are parties
thereto, and is valid, legally binding and enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(xiv) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on
Form S-3 under the Act.
(xv) None of the Company or the Subsidiaries is required to be
registered as an investment company under the Investment Company Act
of 1940, as amended.
(xvi) We are of the opinion that commencing with the Company's
taxable year ended December 31, 1994, the Company has been organized
and operated in conformity with the requirements for qualification and
taxation as a REIT under the Code, and the Company's current and
proposed method of operation (as represented by the Company to
22
us in a written certificate) will enable it to continue to meet the
requirements for qualification and taxation as a REIT under the Code.
In addition, Xxxxxx Xxxxxx & Xxxxxxx LLP shall 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 LLP 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, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, including the notes and
schedules thereto, or any other financial or statistical data that is found in
or derived from the internal accounting records of the Company, the Operating
Partnership or their respective subsidiaries set forth in or incorporated by
reference into the Registration Statement or the Prospectus).
In giving its opinion, such counsel may rely (i) 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 Operating Partnership,
the Corporate Subsidiaries and the Partnership Subsidiaries, (ii) as to matters
of Maryland law, on the opinion of XxXxxxx Xxxxx L.L.P., Baltimore, Maryland,
which opinion shall be in form and substance reasonably satisfactory to counsel
for the Underwriters, (iii) as to matters of Illinois law, on the opinion of
Barack Xxxxxxxxxx Xxxxxxxxxx, Xxxxxxx & Xxxxxxxxx, Chicago, Illinois, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Underwriters, and (iv) as to the good standing and qualification of the
Company, the Operating Partnership, 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 (A) as to the enforceability of
forum selection clauses in the federal courts or (B) with respect to the
requirements of, or compliance with, any state securities or "Blue Sky" or real
estate syndication laws;
(g) You shall have received on the Closing Date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of XxXxxxx Xxxxx 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
23
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, the Deposit Agreements, the
Remarketing Agreements and the Calculation Agent Agreements.
(iii) The Company's authorized capitalization consists of
10,000,000 shares of preferred stock, par value $.01 per share,
100,000,000 shares of common stock, par value $.01 per share and
65,000,000 shares of excess stock, par value $.01 per share. All of
the issued and outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and
non-assessable. All the issued and outstanding shares of capital stock
of the Corporate Subsidiaries have been duly authorized and are
validly issued, fully paid and non-assessable and are owned by the
Company.
(iv) Each of the Securities has been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and the
Deposit Agreements, when validly issued and delivered pursuant to this
Agreement against payment of the Purchase Price, will be duly
authorized, validly issued, fully paid and non-assessable. To the
extent Maryland law provides the basis for determination, each of the
Underwriters is receiving good, valid and marketable title to the
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the Underwriters
acquire such Securities in good faith and without notice of any such
security interests, mortgages, pledges, liens, encumbrances, claims or
equities. The terms of the Securities conform in all material respects
to all statements and descriptions related thereto contained in the
Registration Statement, the Series F Articles Supplementary, the
Series G Articles Supplementary and the Prospectus. The form of
depositary receipt used to evidence the Securities are in due and
proper form and comply in all material respects with all applicable
legal requirements. The issuance of the Securities is not subject to
any preemptive or other similar rights arising under Maryland General
Corporation Law, the Company's charter or by-laws, as amended to date,
or any agreement of which such counsel is aware.
(v) Each of this Agreement, the Series F Articles Supplementary,
the Series G Articles Supplementary, the Deposit Agreements, the
Remarketing Agreements and the Calculation Agent Agreements was duly
and validly authorized by the Company, on behalf of itself and the
Operating Partnership.
(vi) The execution and delivery of this Agreement, the Series F
Articles Supplementary, the Series G Articles Supplementary, the
Deposit Agreements, the Remarketing Agreements and the Calculation
Agent Agreements, the performance of the obligations and the
consummation of the transaction set forth herein and therein by the
Company will not require, to the knowledge of such counsel, any
consent, approval, authorization or other order of any Maryland court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Securities Act or other
securities laws) and did not and do not conflict with or constitute a
breach or violation of or default under: (A) the charter or by-laws,
as the case may be, of the Company; and (B) any applicable Maryland
law, rule or administrative regulation or any order or administrative
or court decree of which such counsel is aware, except in the case of
clause (B) above for conflicts, breaches, violations or defaults that
in the aggregate would not have a Material Adverse Effect.
24
(vii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any Maryland court,
governmental authority, agency or other entity is required in
connection with the offering, issuance or sale of the Securities
hereunder, except such as may be required under Maryland securities,
blue sky or real estate syndication laws.
(viii) The information in the Prospectus under "Certain
Provisions of Maryland Law and First Industrial Realty Trust, Inc.'s
Articles of Incorporation and Bylaws" and "Restrictions on Transfers
of Capital Stock", and "Description of Preferred Stock" and in Part II
of the Registration Statement under Item 15, to the extent that it
constitutes statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has been
reviewed by such counsel and, as to Maryland law, is correct in all
material respects and presents fairly the information required to be
disclosed therein.
(ix) The Company and each of the Corporate Subsidiaries was
authorized to enter into the partnership agreement of each Partnership
Subsidiary for which the Company, the Operating Partnership or such
Corporate Subsidiary, as the case may be, is the general partner.
(h) You shall have received on the Closing Date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, special Illinois
counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company or the
Operating Partnership, FIMC, the Mortgage Partnership, FIPC or FIP is
in violation of, or default in connection with the performance or
observance of any obligation, agreement, covenant or condition
contained in any or all of that certain Unsecured Revolving Credit
Facility, dated as of September 27, 2002, among the Operating
Partnership, as Borrower, the Company, as Guarantor and General
Partner, Bank One, NA, and certain other banks as lenders, Banc One
Capital Markets, Inc. as Lead Arranger and Sole Book Runner, Bank of
America, N.A. as Syndication Agent, and Commerzbank AG, New York and
Grand Cayman Branches and Wachovia Bank, N.A., as Documentation Agents
(all such indebtedness collectively, the "Credit Documents"), except
in each case for defaults that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
(ii) The execution and delivery of this Agreement, the
performance of the obligations and consummation of transactions set
forth herein and therein by the Company and the Operating Partnership
did not and do not conflict with, or constitute a breach or violation
of, or default under: (A) any or all of the Credit Documents; (B) any
applicable law, rule or administrative regulation of the federal
government (or agency thereof) of the United States; or (C) any order
or administrative or court decree issued to or against, or concerning
any or all of the Company, the Operating Partnership, the Partnership
Subsidiaries and the Corporate Subsidiaries, of which, in the cases of
clauses (B) and (C) above, such counsel is aware, except in each case
for conflicts, breaches, violations or defaults that, in the
aggregate, would not have a Material Adverse Effect.
(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.
25
(iv) The information in the 10-K under Item 7 "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Mortgage Loans Payable" (other than information relating
to a certain mortgage loan made available to First Industrial
Financing Partnership, L.P. by Nomura Asset Capital Corporation) to
the extent that it constitutes statements of law, descriptions of
statutes, summaries of principal financing terms of Credit Documents
or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and presents fairly the information disclosed
therein.
(i) On the date hereof, the Accountants shall have furnished to the
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, the Operating Partnership and the
Subsidiaries as required by the Securities Act and with respect to the
financial and other statistical and numerical information contained in the
Registration Statement and the Prospectus and containing statements and
information of the type ordinarily included in accountants' "comfort
letters" as set forth in the AICPA's Statement on Auditing Standards 72. At
the Closing Date, the Accountants shall have furnished to the 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, 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.
(j) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxxxxx Chance US LLP ("CC"), counsel for the
Underwriters, as to the matters referred to in clauses (ii) (with respect
to the Operating Partnership and the first sentence only), (v) and (x) of
Section 7(f), and to clause (i) (with respect to the Company only) of
Section 7(g) and in addition, CC shall make statements similar to those
contained in the second paragraph following Section 7(f)(xvi) hereto and
shall be entitled to rely on those persons described in the third paragraph
following Section 7(f)(xvi) hereto with respect to the matters described
therein.
In giving its opinion, such counsel may rely (A) as to matters of
Maryland law, on the opinion of XxXxxxx Xxxxx L.L.P., Baltimore Maryland,
which opinion shall be in form and substance reasonably satisfactory to
counsel for the Underwriters and (B) as to the good standing and
qualification of the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries to do business in any sate or jurisdiction, upon
certificates of appropriate governmental officials or opinions of counsel
in such jurisdictions.
(k) At the Closing Date, the Securities shall have the ratings
accorded by any "nationally recognized statistical organization," as
defined by the Commission for purposes of Rule 436(g)(2) under the Act if
and as specified in Schedule II hereto, and the Company shall have
delivered to Xxxxxx Brothers Inc. a letter, dated as of such date, from
each such rating organization, or other evidence satisfactory Xxxxxx
Brothers Inc., confirming that the Securities have such ratings. Since the
date hereof, there shall not have occurred a downgrading in the rating
assigned to the Securities 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 Securities or any of the Company's securities or the
Operating Partnership's other securities.
26
(l) If the Registration Statement or an offering of Securities has
been filed with the NASD for review, the NASD shall not have raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(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 4
herein contained or 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, the Remarketing Agreements, Deposit
Agreements and the Calculation Agent Agreements shall have been duly and
validly authorized, executed and delivered by each of the Company and the
Operating Partnership, to the extent they are a party thereto.
(o) At the 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
Securities, as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Operating Partnership and the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the 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 CC, counsel for the
Underwriters.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in your absolute discretion by notice given to the Company, if after
the execution and delivery of this Agreement and prior to the Closing Date (a)
the Company and the Operating Partnership shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any agreements on its part
to be performed hereunder, (b) any other conditions to the Underwriters'
obligations hereunder are not fulfilled, (c) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (d) trading of any securities
of or guaranteed by the Company and the Operating Partnership shall have been
suspended on any exchange or in any over-the-counter market, (e) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities; (f) any major disruption of
settlements of securities or clearance services in the United States; or (g)
there shall have occurred any outbreak or escalation of hostilities or act of
terrorism involving the United States or any change in financial markets or any
calamity or crisis that, in the judgment of Xxxxxx Brothers Inc., is material
and adverse and which, in the judgment of Xxxxxx Brothers Inc., makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the number of Securities, which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the number of the Securities, the other Underwriters shall be
obligated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I hereto bears to the
number of Securities set forth opposite the names of all such non-
27
defaulting Underwriters, or in such other proportions as the non-defaulting
Underwriters may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the number of Securities with respect to which such default
occurs is more than one-tenth of the number of Securities to be purchased, and
arrangements satisfactory to the Underwriters and the Company for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the Company and the
Operating Partnership shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in 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
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company and the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company and the Operating
Partnership shall be unable to perform their obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the Company
and the Operating Partnership agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 4(i) and
6 of this Agreement.
11. In the event of termination of this Agreement, the provisions of
Sections 4(i) and 6 remain operative and in full force and effect.
12. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by you jointly or
by Xxxxxx Brothers Inc. alone on behalf of the Underwriters, and any such action
taken by you jointly or by Xxxxxx Brothers Inc. alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed or transmitted by any
standard form of telecommunication. Notices to the Underwriters shall be given
to the Underwriters, c/x Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Preferred Stock/Hybrid Capital Group, with a copy to
Xxxxxxxx Chance US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxxxx, Esq. Notices to the Company shall be given to it at First
Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx, 00000, Attention: Xxxx X. Xxxxxxx, Esq., with a copy to Xxxxxx Xxxxxx
& Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx X.
Xxxxxxxxx, Esq.
28
14. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
[Signatures begin on following page.]
29
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ M. Havala
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Finanical Officer
FIRST INDUSTRIAL, L.P.
By:
First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ M. Havala
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
Accepted: May 18, 2004
XXXXXX BROTHERS INC.
CREDIT SUISSE FIRST BOSTON LLC
WACHOVIA CAPITAL MARKETS, LLC
BB&T CAPITAL MARKETS, A DIVISION OF XXXXX & XXXXXXXXXXXX, INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: XXXXXX BROTHERS INC.,
on behalf of itself and the several Underwriters
listed in Schedule II hereto
By: /s/ X.X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
30
SCHEDULE I
Number of Series F Number of Series G
Depositary Shares* Depositary Shares*
Underwriters to be Purchased to be Purchased
------------ --------------- ---------------
Xxxxxx Brothers Inc. 32,500 16,250
Credit Suisse First Boston LLC 6,250 3,125
Wachovia Capital Markets, LLC 8,750 4,375
BB&T Capital Markets, a Division of Xxxxx & 2,500 1,250
Xxxxxxxxxxxx, Inc.
______________________ ________________________
Total 50,000 25,000
----------
* As defined in Schedule II hereto.
SI-1
SCHEDULE II
Underwriters: Xxxxxx Brothers Inc.
Credit Suisse First Boston LLC
Wachovia Capital Markets, LLC
BB&T Capital Markets, a Division of Xxxxx &
Xxxxxxxxxxxx, Inc.
Underwriting Agreement dated: May 18, 2004
Registration Statement No.: 333-57992
Title of Securities: Depositary Shares Each Representing 1/100 of a Share of
Series F Flexible Cumulative Redeemable Preferred Stock
(Five-Year Initial Fixed Rate Period) (the "Series F
Depositary Shares")
Depositary Shares Each Representing 1/100 of a Share of
Series F Flexible Cumulative Redeemable Preferred Stock
(Ten-Year Initial Fixed Rate Period) (the "Series G
Depositary Shares")
Aggregate principal amount: $50,000,000 Series F Depositary Shares
$25,000,000 Series G Depositary Shares
Price to Public: $50,000,000
$25,000,000
Purchase Price: $49,375,000
$24,687,500
Redemption: At any time, in whole or in part, at the Company's option, on
or after May 18, 2009, at a cash redemption price of $1,000
per Series F Depositary Share, plus all accrued and unpaid
dividends (whether or not declared) to the date of redemption
At any time, in whole or in part, at the
Company's option, on or after May 18, 2014,
at a cash redemption price of $1,000 per
Series G Depositary Share, plus all accrued
and unpaid dividends (whether or not
declared) to the date of redemption
Sinking Fund Provisions: None
Other Significant Provisions: As set forth in the Prospectus
Ratings: Standard & Poor's: "BBB-"
SII-1
Xxxxx'x Investors Service: "Baa3"
Closing Date and Time of The Closing will be held at 9:00 A.M. (New York City time) on
Delivery: May 27, 2004, with the Securities being delivered through the
book-entry facilities of The Depository Trust
Company and made available for checking by
DTC at least 24 hours prior to the Closing
Date
Closing Location: Xxxxxxxx Chance US LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
2
SCHEDULE III
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
First Industrial, L.P. Arizona
California
Connecticut
Colorado
Florida
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota*
Missouri
New Jersey*
New York*
North Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
Utah
Wisconsin
----------
* Denotes jurisdictions on which counsel is opining.
SIII-1
First Industrial Financing Partnership, L.P. Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
New Jersey
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Acquisitions, Inc. California
Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Pennsylvania, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Securities Corporation Illinois*
Michigan*
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Indianapolis Corporation Indiana
First Industrial Indianapolis, L.P. Indiana
SIII-2
FI Development Services Corporation Florida
Illinois
Maryland
Wisconsin
First Industrial Realty Trust, Inc. Florida
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
North Carolina
Oregon
Utah
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Development Services, Inc. Arizona
California
Colorado
Florida
Georgia
Illinois
Indiana
Louisiana
Maryland
Michigan
Minnesota
Missouri
New York
North Carolina
Ohio
Pennsylvania
Tennessee
Texas
SIII-3
