5,400,000 Shares
FIRST INDUSTRIAL REALTY TRUST, INC.
Common Stock
UNDERWRITING AGREEMENT
October 6, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 5,400,000 shares of common stock of the
Company, par value $.01 per share, (the "Shares"), to Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation (the "Underwriter"). The shares of common stock,
par value $.01 per share, of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the Common
Stock.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 (Registration No. 333-29879)
relating to the registration of the Shares and such other securities which may
be offered from time to time by the Company in accordance with Rule 415 under
the Act. Such registration statement (as amended), has been declared effective
by the Commission on September 24, 1997. Such registration statement (as
amended), on the one hand, and the prospectus constituting a part thereof and
the prospectus supplement relating to the offering of the Shares provided to the
Underwriter by the Company for use (whether or not such prospectus supplement is
required to be filed with the Commission by the Company pursuant to the Act)
(the "Prospectus Supplement"), on the other hand, including all documents
incorporated therein by
reference, as from time to time amended or supplemented pursuant to the Act, the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively called the "Exchange Act") are referred
to herein as the "Registration Statement" and the "Prospectus," respectively;
provided, however, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of the Shares to
which it relates. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" or
"stated" in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement or Prospectus, as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, even though not specifically stated, any
document filed under the Exchange Act which is or is deemed to be incorporated
by reference in the Registration Statement or the Prospectus, as the case may
be. Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
the Company agrees to issue and sell the Shares and the Underwriter agrees to
purchase from the Company at a price per share of $32.90 (the "Purchase Price"),
5,400,000 Shares.
3. Terms of Public Offering. The Company is advised by you that the
Underwriter proposes (i) to make a public offering (the "Offering") of the
Shares as soon after the execution and delivery hereof as in your judgment is
advisable and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus.
4. Delivery and Payment. Delivery to the Underwriter of certificates for,
and payment of the Purchase Price for the Shares shall be made, subject to
Section 9, at 10:00 A.M., New York City time, on the seventh business day
following the date hereof, or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriter and the Company (such
time and date of payment and delivery being herein called the "Closing Date") at
the offices of Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
Clos-
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ing Date and the location of, delivery of and the form of payment for the Shares
may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day next preceding the Closing Date. Certificates in definitive
form evidencing the Shares shall be delivered to you on the Closing Date, with
any transfer taxes thereon duly paid by the Company, for the account of the
Underwriter, against payment of the Purchase Price therefor by intra-bank
transfer or wire transfer of same day funds to such account as may be designated
by the Company at least two business days prior to the Closing Date.
5. Agreements of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership severally agrees with you as follows:
(a) In respect of the offering of Shares, the Company will prepare a
Prospectus Supplement setting forth the number of Shares covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which
the Shares are being issued, the name of the Underwriter participating in
the offering and the number of Shares which the Underwriter has agreed to
purchase, the price at which the Shares are to be purchased by the
Underwriter from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as
the Underwriter and the Company deem appropriate in connection with the
offering of the Shares. The Company will furnish to the Underwriter and to
such dealers as you shall specify as many copies of the Prospectus as the
Underwriter shall reasonably request for the purposes contemplated by the
Act or the Exchange Act.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, the Company
will advise you promptly and, if requested by you, confirm such advice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement (ii) the transmittal to the Commission for filing of any
Prospectus or other supplement or amendment to the Prospectus to be filed
pursuant to the 1933 Act, (iii) the receipt of any comments from the Com-
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mission relating to the Registration Statement, the Prospectus or any of
the transactions contemplated by this Agreement, (iv) any request by the
Commission for post-effective amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(v) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (vi) the happening
of any event which makes any statement of a material fact made in the
Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. The
Company will make every reasonable effort 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, one signed copy of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, as you may reasonably request. If applicable, the copies
of the Registration Statement and each amendment thereto furnished to the
Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to file
any amendment to the Registration Statement or to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you or your counsel shall reasonably object; and to
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which, in the opinion of your counsel, may be
necessary in connection with the distribution of the Shares by you, and to
use its best efforts to
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cause the same to become promptly effective. If applicable, the Prospectus
and any amendments or supplements thereto furnished to the Underwriter will
be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, any
event shall occur as a result of which, in the opinion of your counsel, 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 your counsel for the Underwriter) so that the statements in
the Prospectus, as so amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing when it is so delivered, not misleading, or so that the Prospectus
will comply with any law, and to furnish to the Underwriter and to such
dealers as you shall specify, such number of copies thereof as the
Underwriter or dealers may reasonably request.
(f) The Company will use its best efforts, in cooperation with the
Underwriter, to qualify or register the Shares for offer and sale by the
Underwriter under the applicable state securities or Blue Sky laws and real
estate syndication laws of such jurisdictions as you may reasonably
request; provided, however, the Company will not be required to qualify as
a foreign corporation, file a general consent to service of process in any
such jurisdiction, subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject, or provide any
undertaking or make any change in its charter or by-laws that the Board of
Directors of the Company reasonably determines to be contrary to the best
interests of the Company and its stockholders. In each jurisdiction in
which the Shares have been so qualified or registered, the Company will use
all reasonable efforts to file such statements and reports as may be
required by the laws of such jurisdiction, to continue such qualification
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or registration in effect for so long a period as the Underwriter may
reasonably request for the distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such qualification or registration; provided, however, the
Company will not be required to qualify as a foreign corporation, file a
general consent to service of process in any such jurisdiction, subject
itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject, or provide any undertaking or make
any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders.
(g) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty (60) days after the
close of the period covered thereby (ninety (90) days in the event the
close of such period is the close of the Company's fiscal year), an
earnings statement (in form complying with the provisions of Rule 158 of
the Act) covering a period of at least twelve months after the effective
date of the Registration Statement (but in no event commencing later than
ninety (90) days after such date) which shall satisfy the provisions of
Section 11(a) of the Act, and, if required by Rule 158 of the Act, to file
such statement as an exhibit to the next periodic report required to be
filed by the Company under the Exchange Act covering the period when such
earnings statement is released.
(h) During the period of five years after the date of this Agreement,
the Company will furnish to you as soon as available (x) a copy of each
regular and periodic report or other publicly available information of the
Company and any of its subsidiaries mailed to the holders of the Shares or
filed with the Commission or any securities exchange and (y) such other
publicly available information concerning the Company and any of its
subsidiaries as you may reasonably request.
(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares,
to file all documents required to be filed by it with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act.
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(j) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of
the Registration Statement and any amendment thereto (including financial
statements and exhibits), the Prospectus and all amendments and supplements
to any of them prior to or during the period specified in paragraph (c),
(ii) the printing and delivery of this Agreement and the Blue Sky
Memorandum, (iii) the qualification or registration of the Shares for offer
and sale under the securities or Blue Sky laws and the real estate
syndication laws of the several states in accordance with Section 5(g)
hereof, (iv) the fee of and the filings and clearance, if any, with the
National Association of Securities Dealers, Inc. (the "NASD") in connection
with the Offering, (v) the fee of and the listing of the Shares on the New
York Stock Exchange, Inc. ("NYSE"), (vi) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale
of the Shares by the Underwriter or by dealers to whom Shares may be sold,
(vii) the preparation, issuance and delivery of certificates for the Shares
to the Underwriter, (viii) the costs and charges of any transfer agent or
registrar, (ix) any transfer taxes imposed on the sale by the Company of
the Shares to the Underwriter and (x) the fees and disbursements of the
Company's counsel and accountants.
(k) The Company will use its best efforts to maintain the listing of
the Shares on the NYSE for a period of two years after the Closing Date and
thereafter unless the Company's Board of Directors determines that it is no
longer in the best interests of the Company for the Shares to continue to
be so listed.
(l) The Company will use its best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior
to the Closing Date and to satisfy all conditions precedent to the delivery
of the Shares.
(m) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus Supplement under
"Use of Proceeds."
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(n) The Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Act copies of the
Prospectus.
(o) 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") until October 6,
2000 and thereafter unless the Company's Board of Directors determines that
it is no longer in the best interests of the Company to be so qualified.
(p) The Company hereby agrees not to, directly or indirectly, register
the sale of, offer to sell, sell, contract to sell, grant any option to
purchase or otherwise dispose of any Shares of common stock, par value $.01
per share, of the Company ("Common Shares") or any securities convertible
into or exercisable or exchangeable for such Common Shares or in any other
manner transfer all or a portion of the economic consequences associated
with the ownership of any such Common Shares, except to the Underwriter
pursuant to this Agreement, for a period of 90 days after the date of the
Prospectus Supplement without the prior written consent of Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding the foregoing,
during such period the Company may (i) grant shares of common stock and
stock options pursuant to any employee benefit plan of the Company, (ii)
issue Common Shares upon the exercise of such options, (iii) redeem Units
for Common Shares, (iv) issue shares of, or securities convertible into or
exercisable or exchangeable for, Common Shares in connection with private
placements for the acquisition of real property or direct or indirect
interests in real property by the Company or its affiliates.
6. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to the Underwriter as of the date hereof and the Closing
Date that:
(a) The Company meets the requirements for use of Form S-3, and the
Registration Statement has been declared effective by the Commission.
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the
Prospectus and, if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at
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the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement becomes effective or
any amendment or supplement to the Prospectus is filed with the Commission,
did or will comply in all material respects with all applicable provisions
of the Act and will contain all statements required to be stated therein in
accordance with the Act. The Prospectus, including the financial
statements, schedules and related notes included 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 becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will
comply in all material respects with all applicable provisions of the Act
and will contain all statements required to be stated therein in accordance
with the Act. On the date the Registration Statement was declared
effective, on the date hereof and on the Closing Date no part of the
Registration Statement or any amendment did or will contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective,
on the date hereof, as of its date, and at the Closing Date, the Prospectus
and the Prospectus Supplement did not or will not contain any 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. The foregoing representations and warranties in
this Section 6(b) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to the Underwriter
furnished in writing to the Company by the Underwriter specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. The Company has not distributed, and prior to the later
of the Closing Date and the completion of the distribution of the Shares,
will not distribute, any offering material in connection with the offering
or sale of the Shares other than the Registration Statement, the Prospectus
or any other materials, if any, permitted by the Act (which were disclosed
to the Underwriter and the Underwriter's counsel). The Prospectus delivered
to the Underwriter for use in connection with the offering of Shares will,
at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with
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the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the Act,
at the time they were, or hereafter are, filed with the Commission,
complied and will comply in all material respects with the requirements of
the Exchange Act, and, when read together with other information 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 5(b) did not and
will not include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 6(c) do not apply to the
statements or omissions made in reliance on and in conformity with
information relating to the Underwriter furnished in writing to the Company
by the Underwriter specifically for inclusion in the Registration Statement
or Prospectus or any amendment or supplement thereto.
(d) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and
is in good standing with the State Department of Assessments and Taxation
of Maryland. Each of the Operating Partnership, First Industrial Financing
Partnership, L.P. (the "Financing Partnership"), First Industrial
Securities, L.P. ("Securities, L.P."), First Industrial Mortgage
Partnership, L.P. (the "Mortgage Partnership"), First Industrial
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services Group, L.P. ("DSG") and First
Industrial Pennsylvania, L.P. ("FIP") (the Operating Partnership, the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FII,
FIH, DSG and FIP are referred to collectively herein as the "Partnership
Subsidiaries") has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the laws of its
jurisdiction of organization. Each of First Industrial Securities
Corporation ("FISC"), First Industrial Finance Corporation ("FIFC"), First
Industrial Mortgage Corporation ("FIM"), First Industrial Pennsylvania
Corporation ("FIPC"), First Industrial Indianapolis Corporation ("FIIC"),
First Industrial Harrisburg
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Corporation ("FIHC"), FI Development Services Corporation ("FIDSG"), FR
Acquisitions, Inc. ("FRA"), First Industrial Management Corporation
("FIMC") and First Industrial Third-Party Management Corporation ("FITP,"
and together with FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG, FRA and FIMC
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"), has been duly organized and is
validly existing as a corporation in good standing under and by virtue of
the laws of its jurisdiction of organization. Other than the Corporate
Subsidiaries and the Partnership Subsidiaries, no entities in which the
Company owns any equity securities constitute, individually or in the
aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X
promulgated under the Exchange Act. The Company is the sole general partner
of the Operating Partnership. FIFC is a wholly-owned subsidiary of the
Company and is the sole general partner of the Financing Partnership. FIM
is a wholly-owned subsidiary of the Company and is the sole general partner
of the Mortgage Partnership. FISC is a wholly-owned subsidiary of the
Company and is the sole general partner of Securities, L.P. The Operating
Partnership and FISC are the only limited partners of Securities, L.P. DSG
is a wholly-owned subsidiary of the Company. FIPC is a wholly-owned
subsidiary of the Company and is the sole general partner of FIP. FIIC is a
wholly-owned subsidiary of the Company and is the sole general partner of
FII. FIHC is a wholly-owned subsidiary of the Company and is the sole
general partner of FII. FIDSG is a wholly-owned subsidiary of the Company
and is the sole general partner of DSG. The Company and each of the
Subsidiaries has, and at the Closing Date will have, full corporate or
partnership power and authority, as the case may be, to conduct all the
activities conducted by it, to own, lease or operate all the properties and
other assets owned, leased or operated by it and to conduct its business in
which it engages or proposes to engage as described in the Registration
Statement or the Prospectus and the transactions contemplated hereby and
thereby. The Company and each of the Corporate Subsidiaries is, and at the
Closing Date 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
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material adverse effect on the condition, financial or otherwise, or the
earnings, assets or business affairs or prospects of the Company and its
Subsidiaries, taken as whole or on the 453 in service properties owned,
directly or indirectly, by the Company as of June 30, 1997 (the
"Properties"), (ii) the issuance, validity or enforceability of the shares
or (iii) the consummation of any of the transactions contemplated by this
Agreement (a "Material Adverse Effect"), which jurisdictions of foreign
qualification or registration are attached on Schedule I hereto. 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 qualifications or registration will not have a
Material Adverse Effect, which jurisdictions of foreign qualification or
registration are attached on Schedule I hereto. Complete and correct copies
of the articles of incorporation and of the by-laws of the Company and the
charter documents, partnership agreements and other organizational
documents of the Subsidiaries and all amendments thereto as have been
requested by the Underwriter or your counsel have been delivered to the
Underwriter or your counsel.
(e) The Company's authorized capitalization consists of 10,000,000
shares of preferred stock, par value $.01 per share, 100,000,000 shares of
common stock, par value $.01 per share, and 65,000,000 shares of excess
stock, par value $.01 per share. All of the Company's issued and
outstanding shares of common stock and preferred stock have been duly
authorized and are validly issued, fully paid and non-assessable and will
have been offered and sold in compliance, in all material respects, with
all applicable laws (including, without limitation, federal or state
securities laws). The Shares have been duly authorized for issuance and
sale to the Underwriter pursuant to this Agreement and, when validly issued
and delivered pursuant to this Agreement against payment of the Purchase
Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right
and will have been offered and sold in compliance, in all material
respects, with all applicable laws (including, without limitation, federal
or state securities laws). The description of the Shares, and the
statements related thereto, contained in the Registration
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Statement or the Prospectus are, and at the Closing Date, will be, complete
and accurate in all material respects. Except for stock options under the
Company's 1994 Stock Incentive Plan, the 1997 Stock Incentive Plan, the
Deferred Income Plan and the Shareholder Rights Plan (as defined in the
Prospectus), limited partnership interests in the Operating Partnership
("Units"), in connection with agreements relating to the purchase of
properties, which agreements provide for the issuance of Units, or as set
forth in the Prospectus, the Company does not have outstanding, and at the
Closing Date will not have outstanding, any options to purchase, or any
rights or warrants to subscribe for, or any securities or obligations
convertible into, redeemable or exchangeable for, or any contracts or
commitments to issue or sell, any Shares, any shares of capital stock of
the Company or any Subsidiary or any such warrants, convertible securities
or obligations. Upon payment of the Purchase Price and delivery of
certificates representing the Shares in accordance herewith, the
Underwriter will receive good, valid and marketable title to the Shares,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The form of share certificates to be
used to evidence the Shares will be in due and proper form and will comply,
in all material respects, with all applicable legal requirements. Other
than shares of common stock issuable upon exercise of stock options
pursuant to the Company's 1994 Stock Incentive Plan, the 1997 Stock
Incentive Plan, the Deferred Income Plan and the Shareholder Rights Plan
(as defined in the Prospectus), or upon exchange of Units, no shares of
common or preferred stock of the Company are reserved for any purpose,
except as disclosed in the Prospectus.
(f) As of the Closing Date, the partnership agreement of each
Partnership Subsidiary will have been duly authorized, validly executed and
delivered by each partner thereto and is valid, legally binding and
enforceable in accordance with its terms; immediately following the Closing
Date, all of the issued and outstanding shares of capital stock of each
Corporate Subsidiary will have been duly authorized and validly issued,
fully paid and non-assessable and (except as described in the Prospectus)
will be owned directly or indirectly by the Company or the Operating
Partnership, free and clear of all security interests, liens and
encumbrances, (except for pledges in connection with the loan agreements of
the Company and the Subsidiaries) and all of the partnership interests in
each
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Partnership Subsidiary will have been duly authorized and validly issued,
fully paid and (except as described in the Prospectus) will be owned
directly or indirectly by the Company or the Operating Partnership, free
and clear of all security interests, liens and encumbrances (except for
pledges in connection with the loan agreements of the Company and the
Subsidiaries).
(g) The financial statements, supporting schedules and related notes
included in, or incorporated by reference into, the Registration Statement
and the Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly
the consolidated financial condition of the entity or entities or group
presented or included therein, as of the respective dates thereof, and its
consolidated results of operations and cash flows for the respective
periods covered thereby, are all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire
period involved, except as otherwise disclosed in the Prospectus. The
financial information and data included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
included or incorporated by reference therein and have been prepared on a
basis consistent, except as may be noted therein, with that of the
financial statements, schedules and notes included or incorporated by
reference in the Registration Statement and the Prospectus and the books
and records of the respective entity or entities or group presented or
included therein. Except as otherwise noted in the Prospectus, pro forma
and/or as adjusted financial information included in the Prospectus has
been prepared in accordance with the applicable requirements of the Act and
the American Institute of Certified Public Accountants ("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and
includes all adjustments necessary to present fairly the pro forma and/or
as adjusted financial condition of the entity or entities or group
presented or included or incorporated by reference therein at the
respective dates indicated and the results of operations and cash flows for
the respective periods specified. The Company's ratio of earnings to fixed
charges and preferred dividend requirements included in the Prospectus and
in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. No other
financial statements (or schedules) of the Company, or any predecessor of
the Company,
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are required by the Act or the Exchange Act to be included in the
Registration Statement or the Prospectus. Coopers & Xxxxxxx L.L.P. (the
"Accountants") who have reported on such financial statements, schedules
and related notes, are independent public accountants with respect to the
Company as required by the Act.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Date, (i) there has not been and will not have been, except as set
forth in or contemplated by the Registration Statement and the Prospectus,
any change in the capitalization, long term or short term debt or in the
capital stock or equity of the Company or any of its Subsidiaries which
would be material to the Company and its Subsidiaries considered as one
enterprise (anything which would be material to the Company and its
Subsidiaries, considered as one enterprise, being hereinafter referred to
as "Material"), (ii) except as described in the Prospectus, neither the
Company nor any of its Subsidiaries has incurred nor will it incur any
liabilities or obligations, direct or contingent, which would be Material,
nor has it entered into nor will it enter into any transactions, other than
pursuant to this Agreement and the transactions referred to herein or as
contemplated in the Prospectus, which would be Material, (iii) there has
not been any Material Adverse Effect, and (iv) except for regular quarterly
distributions on the Common Shares and the dividends on the shares of the
Company's (a) Series A Preferred Stock, par value $.01 per share; (b)
Depositary Shares each representing 1/100th of a Share of 8 3/4 Series B
Preferred Stock; and (c) Depositary Shares each representing 1/100th of a
Share of 8_ Series C Preferred Stock (collectively, the "Preferred
Shares"), 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.
(i) Neither the Company nor any of its 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").
(j) To the knowledge of the Company, except as set forth in the
Registration Statement and the Prospectus, there are no actions, suits, or
proceedings pending or, after due inquiry, threatened against or affecting
the Company or any of its Subsidiaries or any of their respec-
-15-
tive 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.
(k) The Company and each of its 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) is not,
and at the Closing Date will not be, in breach of or default (except as
previously disclosed to you or your counsel) in the performance or
observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, contract, joint venture
or partnership agreement or other agreement or instrument (collectively, a
"Contract or Other Agreement") or under any applicable law, rule, order,
administrative regulation or administrative or court decree to which it is
a party or by which any of its other assets or properties or by which the
Properties are bound or affected, except where such default, breach or
failure will not, either singly or in the aggregate, have a Material
Adverse Effect. To the knowledge of the Company and each of its
Subsidiaries, after due inquiry, no other party under any Material contract
or other agreement to which it is a party is in default thereunder, except
where such default will not have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is, nor at the Closing Date 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.
(l) No Material consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body or any
other entity is required in connection with the offering, issuance or sale
of the Shares hereunder except such as have been obtained under the Act and
the Exchange Act and such as may be re-
-16-
quired under state securities, Blue Sky or real estate syndication laws,
the by-laws and rules of the NASD or the requirements of the NYSE in
connection with the purchase and distribution by the Underwriter of the
Shares or such as have been received prior to the date of this Agreement,
and except for the filing of this Agreement with the Commission as an
exhibit to a Form 8-K, which the Company agrees to make in a timely manner.
(m) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement, to the
extent such is a party thereto. This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, to the extent each is a party thereto and constitutes a valid
and binding agreement of the Company and the Operating Partnership, to the
extent each is a party thereto, and assuming due authorization, execution
and delivery by the Underwriter, is enforceable, against the Company and
the Operating Partnership, to the extent each is a Party thereto, in
accordance with the terms hereof subject to (i) the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor
may be brought. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby and the
compliance by each of the Company and the Subsidiaries with their
obligations hereunder, will not result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets or properties of the
Company or any of its Subsidiaries pursuant to the terms or provisions of,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate
any of its obligations under, or result in the acceleration of any
obligation under, the certificate of incorporation, by-laws, partnership
agreement or other organizational documents of the Company or any of its
Subsidiaries, any Contract or Other Agreement to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries or any of its assets or properties are bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute, rule
or regulation of any
-17-
court or other governmental agency (foreign or domestic) or body applicable
to the business or properties of the Company or any of its Subsidiaries or
to the Properties, in each case except for liens, charges, encumbrances,
breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not
have a Material Adverse Effect.
(n) As of the Closing Date the Company and each of its subsidiaries
will have good and marketable title to all Material 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 Company's loan facilities of the Company and the Subsidiaries,
or would not result in a Material Adverse Effect.
(o) To the knowledge of the Company and the Operating Partnership: (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.
(p) The Company and the Partnership Subsidiaries have property, title,
casualty and liability insurance in favor of the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Company and the Partnership Subsidiaries except in such
instances where the tenant is carrying such insurance or the tenant is
self-insuring such risks.
-18-
(q) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (A) to the knowledge of the Company and its Subsidiaries, after due
inquiry, the operations of the Company and its Subsidiaries are in
compliance with all Environmental Laws (as defined below) and all
requirements of applicable permits, licenses, approvals and other
authorizations issued pursuant to Environmental Laws; (B) to the knowledge
of the Company and its Subsidiaries, after due inquiry, none of the Company
or its Subsidiaries has caused or suffered to occur any Release (as defined
below) of any Hazardous Substance (as defined below) into the Environment
(as defined below) on, in, under or from any Property, and no condition
exists on, in, under or adjacent to any Property that could reasonably be
expected to result in the incurrence of liabilities under, or any
violations of, any Environmental Law or give rise to the imposition of any
Lien (as defined below), under any Environmental Law; (C) none of the
Company or its Subsidiaries has received any written notice of a claim
under or pursuant to any Environmental Law or under common law pertaining
to Hazardous Substances on, in, under or originating from any Property; (D)
none of the Company or its Subsidiaries has actual knowledge of, or
received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to undertake and/or request the investigation, remediation, clean-up or
removal of any Hazardous Substance released into the Environment on, in,
under or from any Property; and (E) no Property is included or, to the
knowledge of the Company and its Subsidiaries, after due inquiry, proposed
for inclusion on the National Priorities List issued pursuant to CERCLA (as
defined below) by the United States Environmental Protection Agency (the
"EPA"), or included on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by the
EPA, and none of the Company and its Subsidiaries has actual knowledge that
any Property has otherwise been identified in a published writing by the
EPA as a potential CERCLA removal, remedial or response site or, to the
knowledge of the Company and its Subsidiaries, is included on any similar
list of potentially contaminated sites pursuant to any other Environmental
Law.
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous material,
including, without limitation,
-19-
oil, petroleum or any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste which is subject to regulation under any
Environmental Law (including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
ss. 172.101, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 302); "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.)
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss. 2601, et seq.), the
Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss. 651, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. ss.
1801, et seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the environment or
of human health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority having the
duty or authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and "Release"
shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or disposing of
any Hazardous Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing and containing a residue of any Hazardous Substance.
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Company or any of its Subsidiaries, and none of them nor any of their directors,
officers or employees is connected with the Company or
-20-
any of its Subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee.
(r) The Company and its Subsidiaries are organized and operate in a
manner so as to qualify as a REIT under Sections 856 through 860 of the
Code, as amended (the "Code"), and have elected to be taxed as a REIT under
the Code commencing with the taxable year ending December 31, 1994. The
Company and its Subsidiaries intend to continue to qualify as a REIT for
the foreseeable future.
(s) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, and except for the filing of this Agreement
with the Commission as an exhibit to a Form 8-K, which the Company agrees
to make in a timely manner and the descriptions thereof or references
thereto are accurate in all material respects.
(t) Except for persons holding Common Shares issued on or prior to
June 30, 1994 and persons holding Units, there are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the Act.
(u) As of the date hereof, the outstanding shares of common stock of
the Company are listed on the NYSE. Prior to the Closing Date, the Common
Stock will be duly authorized for listing on the NYSE upon official notice
of issuance.
(v) None of the Company or any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company or its Subsidiaries,
after due inquiry, is any such dispute threatened which would be Material.
(w) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, all material trademarks and trade
names which are used in or necessary for the conduct of their respective
businesses as described in the Prospectus. To the knowledge of the Company,
no claims have been asserted by any person to the use of any such
trademarks or trade names or challenging or questioning the validity or
effectiveness of any such trademark or trade name. The use, in connection
-21-
with the business and operations of the Company and its Subsidiaries, of
such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(x) The Company and each of its Subsidiaries has filed all federal,
state, local and foreign income tax returns which have been required to be
filed (except in any case in which the failure to so file would not result
in a Material Adverse Effect) and has paid all taxes required to be paid
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing would otherwise be delinquent, except, in all
cases, for any such tax, assessment, fine or penalty that is being
contested in good faith and except in any case in which the failure to so
pay would not result in a Material Adverse Effect.
(y) Each of the Partnership Subsidiaries is properly treated as a
partnership for federal income tax purposes and not as a "publicly traded
partnership."
(z) No relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or the Subsidiaries on
the other hand, which is required by the Act to be described in the
Registration Statement and the Prospectus which is not so described;
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Shares, and the Company has not distributed and have agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than the Prospectus 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 account
-22-
ability 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) No stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that
purpose has been instituted, or to the knowledge of the Company, threatened
by the Commission or by the state securities authority of any jurisdiction.
No order preventing or suspending the use of the Prospectus has been issued
and no proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission or by the state securities
authority of any jurisdiction.
(dd) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, and delivered
to the Underwriter or to your counsel in connection with the sale of the
Shares shall be deemed a representation and warranty by such entity or
person, as the case may be, to the Underwriter as to the matters covered
thereby.
7. Indemnification. (a) The Company and the Operating Partnership, jointly
and severally, agree to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, expenses, liabilities and judgments 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 shall have furnished any amendments or supplements thereto), 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, expenses, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information relating to
the Underwriter furnished in writing to the Company by or on behalf of the
Underwriter through you expressly for use therein.
(b) In case any action shall be brought against the Underwriter or any
person controlling the Underwriter, based
-23-
upon the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the Company or
the Operating Partnership, the Underwriter shall promptly notify the Company and
the Operating Partnership in writing and the Company and the Operating
Partnership may, at their election, assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall, if the Company or the Operating Partnership has assumed the defense as
indicated above, be at the expense of the Underwriter or such controlling person
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company or the Operating Partnership, (ii) the
Company or the Operating Partnership shall have failed to assume the defense and
employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Underwriter or such controlling person and
the Company and the Operating Partnership and the Underwriter or such
controlling person shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the Company and the Operating Partnership (in which case the
Company and the Operating Partnership shall not have the right to assume the
defense of such action on behalf of the Underwriter or such controlling person,
it being understood, however, that the Company and the Operating Partnership
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
the Underwriter and controlling persons, which firm shall be designated in
writing by the Underwriter and that all such fees and expenses shall be
reimbursed as they are incurred). Neither the Company nor the Operating
Partnership shall be liable for any settlement of any such action effected
without its written consent but if settled with the written consent of the
Company or the Operating Partnership, the Company and the Operating Partnership,
jointly and severally, agree to indemnify and hold harmless the Underwriter and
any such controlling person from and against any loss or liability by reason of
such settlement. Notwithstanding the immediately preceding sentence, if in any
case where the fees and expenses of counsel are at the expense of the
indemnifying party and an indemnified party shall have requested the
indemnifying party to reimburse the indemnified
-24-
party for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected without
its written consent if (i) such settlement is entered into more than forty
business days after the receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall have failed to reimburse the
indemnified party in accordance with such request for reimbursement prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(c) The Underwriter agrees to indemnify and hold harmless the Company and
the Operating Partnership, and the Company's officers and directors who sign the
Registration Statement and any person controlling the Company or the Operating
Partnership within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Operating Partnership to the Underwriter but only with reference to and in
conformity with information relating to the Underwriter furnished in writing by
or on behalf of the Underwriter expressly for use in the Registration Statement
or the Prospectus. In case any action shall be brought against the Company or
the Operating Partnership, any of their officers, directors, or any person
controlling the Company or the Operating Partnership, based on the Registration
Statement or the Prospectus and in respect of which indemnity may be sought
against the Underwriter, the Underwriter shall have the rights and duties given
to the Company and the Operating Partnership (except that if the Company or the
Operating Partnership shall have assumed the defense thereof, the Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall, except as otherwise provided herein, be at the expense of the
Underwriter), and the Company and the Operating Partnership, their officers,
directors, and any person controlling the Company or the Operating Partnership
shall have the rights and duties given to the Underwriter, by Section 7(b)
hereof.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party in respect of any losses, claims, damages, expenses,
liabilities or judgments re-
-25-
ferred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, expenses,
liabilities and judgments (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Operating Partnership on
the one hand and the Underwriter on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Operating Partnership on the one hand, and the Underwriter,
on the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, expenses, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and the Operating Partnership on the one hand, and the Underwriter,
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the Offering (before deducting expenses) received by the Company
and the Operating Partnership and the total underwriting discounts and
commissions received by the Underwriter, bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Operating Partnership on
the one hand, and the Underwriter, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company and the Operating Partnership, or the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Company, the Operating Partnership and the Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, expenses, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, the Underwriter shall not be required to contribute any amount in
-26-
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of the Underwriter or any persons controlling
the Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. Any successors to the
Underwriter or any persons controlling the Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriter's Obligations. The obligations of the
Underwriter to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and
correct, in all material re-
-27-
spects, on the Closing Date, with the same force and effect as if made on
and as of the Closing Date.
(b) The Registration Statement has become effective under the Act; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by such
Rule; no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been commenced or shall be pending before or threatened by the
Commission to the knowledge, after due inquiry, of the Company. No stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been commenced
or shall be pending before or threatened by the state securities authority
of any jurisdiction, to the knowledge of the Company.
(c) (i) Since the date of the latest balance sheet incorporated by
reference in the Registration Statement and the Prospectus, there shall not
have been any Material Adverse Effect, (ii) other than as set forth in the
Prospectus, no proceedings shall be pending or, to the knowledge of the
Company, after due inquiry, threatened against the Company or the Operating
Partnership 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, and on the Closing Date you shall have received a
certificate dated the Closing Date signed by the Chief Executive Officer
and the Chief Financial Officer of the Company, in their capacities as the
Chief Executive Officer and Chief Financial Officer of the Company, on
behalf of the Company for itself and as general partner of the Operating
Partnership, confirming the matters set forth in paragraphs (a), (b) and
(c) of this Section 8.
(d) You shall have received on the Closing Date an opinion or opinions
(satisfactory to you and counsel for the Underwriter), dated the Closing
Date, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Company and the Operating
Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified in Schedule I thereto. Each of the Corporate
Subsidia-
-28-
xxxx is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction
identified in Schedule I thereto.
(ii) Each of the Partnership Subsidiaries has been duly formed
and is validly existing as a limited partnership in good standing
under the laws of its state of organization. Each of the Partnership
Subsidiaries has all requisite partnership power and authority to own,
lease and operate its properties and other assets, to conduct the
business in which it is engaged and proposes to engage, in each case,
as described in the Prospectus, and the Operating Partnership has the
partnership power to enter into and perform its obligations under this
Agreement. Each of the Partnership Subsidiaries is duly qualified or
registered as a foreign partnership and is in good standing in each
jurisdiction identified in Schedule I thereto.
(iii) To the knowledge of such counsel, no shares of common or
preferred stock of the Company are reserved for any purpose, except in
connection with (1) the possible issuance of shares of common stock
upon redemption of Units and (2) the Company's 1994 Stock Incentive
Plan, the 1997 Stock Incentive Plan, the Deferred Income Plan and the
Shareholder Rights Plan (as defined in the Prospectus). To the
knowledge of such counsel, except for Units and stock options issued
under stock option plans, there are no outstanding securities
convertible into or exchangeable for any capital stock of the Company
and no outstanding options other than as provided in this Agreement,
rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such stock or any other securities of the
Company. To the knowledge of such counsel, no shares of capital stock
of any of the Corporate Subsidiaries are reserved for any purpose, and
there are no outstanding securities convertible into or exchangeable
for any capital stock of the Corporate Subsidiaries, and no
outstanding options, rights (preemptive or otherwise) or warrants to
purchase or to subscribe for shares of such capital stock or any other
securities of the Corporate Subsidiaries, except as disclosed in the
Prospectus. To the knowledge of such counsel, all of the outstanding
partnership interests of the Operat-
-29-
ing Partnership, the Financing Partnership, Securities, L.P. and the
Mortgage Partnership have been duly authorized, validly issued and
fully paid and, except for Units not owned by the Company, are owned
directly or indirectly by the Company or the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P.,
FISC, FIFC, FIMC or the Mortgage Partnership is in violation of or
default under its charter, by-laws, certificate of limited partnership
or partnership agreement, as the case may be, and (except as
previously disclosed to the Underwriter or their counsel by the
Company) none of such entities is in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument to
which such entity is a party or by which such entity may be bound, or
to which any of the property or assets of such entity or any Property
is subject to or bound by, (it being understood that such counsel need
express no opinion with respect to matters relating to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing
of the Properties) except in each case for violations or defaults
which in the aggregate are not reasonably expected to have a Material
Adverse Effect.
(v) This Agreement was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership and
assuming due authorization, execution and delivery by any other party
thereto, 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).
-30-
(vi) The execution and delivery of this Agreement and the
performance of the obligations set forth herein by the Company and the
Operating Partnership will not require, to such counsel's knowledge,
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except such as may be required under the Act or other securities
laws) and did not and do not conflict with or constitute a breach or
violation of or default under: (1) any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement to which any such entity is a party or
by which it or any of them or any of their respective properties or
other assets may be bound or subject (it being understood that such
counsel need express no opinion with respect to matters relating to
any contract, indenture, mortgage, loan agreement, note, lease, joint
venture or partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
management or financing of the Properties) and of which such counsel
is aware; (2) the certificate of limited partnership or partnership
agreement, as the case may be, of the Operating Partnership; (3) any
applicable law, rule or administrative regulation of the United States
or the State of Delaware; or (4) any order or administrative or court
decree of which such counsel is aware, except in each case for
conflicts, breaches, violations or defaults that in the aggregate
would not have a Material Adverse Effect.
(vii) None of the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries is required to be registered under the
Investment Company Act of 1940.
(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 Shares hereunder, except such as
may be required under the Act or the by-laws and rules 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.
-31-
(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 documents incorporated therein by reference and
the financial statements and supporting schedule and other financial
and statistical data included or incorporated by reference therein, as
to which no opinion need be rendered) complied as to form in all
material respects with the requirements of the Act.
(x) The Underwriter is receiving good, valid and marketable title
to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the Underwriter
acquires such Shares in good faith and without notice of any such
security interests, mortgages, pledges, liens, encumbrances, claims or
equities.
(xi) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Registration Statement or the Prospectus, other
than those disclosed therein.
(xii) The information in the Prospectus under "Risk Factors,"
"Restrictions on Transfers of Capital Stock", "Certain Federal Income
Tax Matters" and "Description of Common Stock" to the extent that it
constitutes statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has been
reviewed by such counsel and is correct in all material respects and
presents fairly the information required to be disclosed therein.
(xiii) To such counsel's knowledge, there is no document or
contract of a character required to be described or referred to in the
Registration Statement and Prospectus or to be filed as exhibits
thereto by the Act other than those described or referred to therein
or filed as exhibits thereto, and the descriptions thereof or
references thereto are accurate in all material respects.
(xiv) To such counsel's knowledge, except for persons holding
Units and for persons holding Common Shares issued on or prior to June
30, 1994, the Prospectus, there are no persons with registration or
-32-
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under
the Act.
(xv) As of the date hereof, the outstanding shares of common
stock of the Company are listed on the NYSE. The Shares have been
approved for listing on the NYSE upon official notice of issuance.
(xvi) The partnership agreement of each Partnership Subsidiary
has been duly authorized, validly executed and delivered by each of
the Company and the Subsidiaries, to the extent they are parties
thereto, and is valid, legally binding and enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to 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).
(xvii) 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.
(xviii) The documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules therein and other financial and
statistical data, as to which no opinion need be rendered), when they
were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
(xix) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on
Form S-3 under the Act.
At the Underwriter's request, Xxxxxx Xxxxxx & Xxxxxxx shall also confirm to
the Underwriter that it has been informed
-33-
by the Staff of the Commission that the Registration Statement is effective
under the Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and permit the Underwriter to rely on such opinion as if it were
addressed to the Underwriter.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall state that they have
participated in conferences with officers and other representatives of the
Company and the Operating Partnership, representatives of the independent public
accountants for the Company and representatives of the Underwriter at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed. On the basis thereof (relying as to materiality to a large
extent upon the opinions of officers and other representatives of the Company),
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, 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, schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In giving its opinion, such counsel may rely (A) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Corporate Subsidiaries
and the Partnership Subsidiaries, (B) as to matters of Maryland law, on the
opinion of McGuire, Woods, Battle & Xxxxxx, L.L.P., Baltimore, Maryland, which
opinion shall be in form and sub-
-34-
stance reasonably satisfactory to counsel for the Underwriter, (C) 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 Underwriter, and (D) as to the good
standing and qualification of the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel in such
jurisdictions. Counsel need express no opinion (i) as to the enforceability of
forum selection clauses in the federal courts or (ii) with respect to the
requirements of, or compliance with, any state securities or "Blue Sky" or real
estate syndication laws.
(e) You shall have received on the Closing Date an opinion or
opinions (satisfactory to you and your counsel), dated the Closing
Date of McGuire, Woods, Battle & Xxxxxx, L.L.P., special Maryland
counsel for the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its respective jurisdiction of
incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has
corporate power and authority to own, lease and operate its
properties and other assets and to conduct the business in which
it is engaged or proposes to engage, in each case, as described
in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this
Agreement.
(iii) The Company's authorized capitalization consists of
10,000,000 shares of preferred stock, par value $.01 per share,
100,000,000 shares of common stock, par value $.01 per share and
65,000,000 shares of excess stock, par value $.01 per share. All
of the issued and outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully
paid and non-assessable. All the issued and outstanding shares of
capital stock of the Corporate Subsidiaries have been duly
authorized and are validly issued, fully paid and non-assessable.
-35-
(iv) Each of the Shares has been duly authorized for
issuance and sale to the Underwriter pursuant to this Agreement
and, when validly issued and delivered pursuant to this Agreement
against payment of the Purchase Price, will be duly authorized,
validly issued, fully paid and non-assessable. To the extent
Maryland law provides the basis for determination, the
Underwriter is receiving good, valid and marketable title to the
Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the
Underwriter acquires such Shares in good faith and without notice
of any such security interests, mortgages, pledges, liens,
encumbrances, claims or equities. The terms of the Shares conform
in all material respects to all statements and descriptions
related thereto contained in the Registration Statement and
Prospectus. The form of stock certificates evidencing the Shares
are in due and proper form and comply in all material respects
with all applicable legal requirements. The issuance of the
Shares is not subject to any preemptive or other similar rights
arising under Maryland General Corporation Law, the Company's
charter or by-laws, as amended to date, or any agreement of which
such counsel is aware.
(v) This Agreement was duly and validly authorized and
executed by the Company.
(vi) The execution and delivery of this Agreement and the
performance of the obligations set forth herein by the Company
will not require, to the knowledge of such counsel, any consent,
approval, authorization or other order of any Maryland court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Act or other securities
laws) and did not and do not conflict with or constitute a breach
or violation of or default under: (1) the charter or by-laws, as
the case may be, of the Company; (2) any applicable Maryland law,
rule or administrative regulation or any order or administrative
or court decree of which such counsel is aware, except in each
case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of
-36-
any Maryland court, governmental authority, agency or other
entity is required in connection with the offering, issuance or
sale of the Shares hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication
laws.
(viii) The information in the Prospectus under "Description
of Common Stock," "Restrictions on Transfers of Capital Stock"
and Item 15 of Part II of the Registration Statement to the
extent that it constitutes statements of law, descriptions of
statutes, rules or regulations, summaries of documents or legal
conclusions, has been reviewed by such counsel and, as to
Maryland law, is correct in all material respects and presents
fairly the information required to be disclosed therein.
(ix) The Company and each of the Corporate Subsidiaries was
authorized to enter into the partnership agreement of each
Partnership Subsidiary for which the Company or such Corporate
Subsidiary, as the case may be, is the general partner.
(f) You shall have received on the Closing date, an opinion or
opinions (satisfactory to you and your counsel), dated the Closing
Date, of Barack Ferazzano Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, special
Illinois counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company,
the Operating Partnership, FIFC, the Financing Partnership, FIP,
FIPC, Securities, L.P.; FRA, FIMC, the Mortgage Partnership, and
FISC is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in (a) the
documentation evidencing and/or securing (1) a certain revolving
credit facility made available to the Operating Partnership and
FIP by The First National Bank of Chicago, on behalf of itself
and as agent for various co-lenders, (2) a certain loan made
available to Harrisburg, L.P. by ORIX USA, Inc., (3) a certain
revolving loan facility made available to the Operating
Partnership by Madison Bank, N.A., (4) a certain mortgage loan
made available to the Mortgage Partnership by Nomura Asset
Capital Corporation, and (5) a certain revolving credit facility
made available to the Operating Partnership by The First National
Bank of Chicago (such documentation, collec-
-37-
tively, the "Credit Documents") and (b) various pending
agreements of purchase and sale into which FR Acquisitions, Inc.
has entered into for the purchase of certain real properties
(collectively, the "Pending Contracts"), except in each case for
defaults which in the aggregate are not reasonably expected to
have a Material Adverse Effect.
(ii) The execution and delivery of this Agreement and the
performance of the obligations set forth herein by the Company
and the Operating Partnership did not and do not conflict with or
constitute a breach or violation of or default under: (1) the
Credit Documents and the Pending Contracts; (2) any applicable
law, rule or administrative regulation of the United States; or
(3) any order or administrative or court decree issued to or
against or concerning the Company, the Operating Partnership,
FIFC, the Financing Partnership, FIP, FIPC, FIMC, the Mortgage
Partnership, Securities, L.P., FRA or FISC, of which such counsel
is aware, except in each case for conflicts, breaches, violations
or defaults that in the aggregate would not have a Material
Adverse Effect.
(iii) To the knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened that do or are
likely to have a Material Adverse Effect.
(iv) The information in the Prospectus Supplement under
"Prospectus Supplement Summary -- Recent Developments --Debt
Financing," and in the 10-K under Item 2 "The Properties --
Mortgage Loans" and "-- Acquisition Facilities" to the extent
that it constitutes statements of law, descriptions of statutes,
summaries of documents or legal conclusions, has been reviewed by
such counsel and is correct in all material respects and presents
fairly the information disclosed therein.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Xxxxxx & Xxxxx, your counsel, as to the matters
referred to in clauses (iv) (with respect to the first and last
sentences only) of Section 8(e) and clauses (v), and (ix) of Section
8(d) and in addition, Xxxxxx & Xxxxx shall make statements similar to
those contained in the first and third paragraphs following Section
8(d)(xix) hereto and shall be entitled to
-38-
rely on those persons described in the fourth paragraph following
Section 8(d)(xix) described therein.
(h) On the date hereof, Coopers & Xxxxxxx L.L.P. shall have
furnished to the Underwriter a letter, dated the date of its delivery,
addressed to the Underwriter and in form and substance satisfactory to
the Underwriter (and to its counsel), confirming that they are
independent public accountants with respect to the Company and its
Subsidiaries as required by the Act and with respect to the financial
and other statistical and numerical information contained in the
Registration Statement. At the Closing Date, Coopers & Xxxxxxx L.L.P.
shall have furnished to the Underwriter a letter, dated the date of
its delivery, which shall confirm, on the basis of a review in
accordance with the procedures set forth in the letter from it, that
nothing has come to its attention during the period from the date of
the letter referred to in the prior sentence to a date (specified in
the letter) not more than five days prior to 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 as the
case may be.
(i) Since the date hereof, there shall not have occurred a
downgrading in the rating assigned to the Shares or any of the
Company's securities or the Operating Partnership's other securities
by any such rating organization, and no such rating organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Shares or any of the
Company's securities or the Operating Partnership's other securities.
(j) At the Closing Date, the Shares shall have been approved for
listing on the NYSE upon official notice of issuance.
(k) The Company and its Subsidiaries shall not have failed at or
prior to the Closing Date to perform or comply with any of the
agreements pursuant to Section 5 herein contained and required to be
performed or complied with by the Company at or prior to the Closing
Date.
(l) At the Closing Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Shares, as
-39-
herein contemplated and related proceedings, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriter and counsel for
the Underwriter.
(m) At the Closing Date, the Underwriter shall have received a
letter agreement from certain of the directors and executive officers
of the Company, as listed on Schedule II hereto, substantially in the
form attached hereto as Exhibit A.
9. Effective Date of Agreement; Termination. This Agreement shall become
effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been a Material Adverse Effect, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and would, in your judgment, make it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities on the NYSE or the
American Stock Exchange or material limitation on prices for securities on
either of such exchanges, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion would result in a
Material Adverse Effect, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
10. Information Furnished by the Underwriter. The name of the Underwriter
set forth on the cover page, and the statements in the second paragraph under
the caption "Underwriting" in the Prospectus, constitute the only informa-
-40-
tion furnished by or on behalf of the Underwriter through you as such
information is referred to in Section 7.
11. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to First
Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx X.
Xxxxxxxxx, Esq. and (b) if to you, Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, with a copy to Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention of Xxxxxx X. Xxxx, Xx., or in any case to such other address as
the person to be notified may have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriter or by or on behalf of the Company, the
officers or directors of the Company or any controlling person of the Company
and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of Sections
5(j) and 7 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company and the Operating Partnership to
comply with the terms or to fulfill any of the conditions of this Agreement, the
Company and the Operating Partnership agree to reimburse the Underwriter for all
out-of-pocket expenses (including the fees and disbursements of counsel)
reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Operating
Partnership and the Underwriter, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from the Underwriter merely because of such
purchase.
-41-
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
-42-
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Operating Partnership, and the Underwriter.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By:________________________________
Name:
Title:
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty
Trust, Inc. as its sole general
partner
By:________________________________
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:____________________________
Name:
Title:
SCHEDULE I
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
First Industrial, L.P. Alabama
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Alabama
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois
Michigan
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
Schedule I-1
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Alabama
Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Alabama
Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Alabama
Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial (Atlanta) Management Corporation Georgia
Illinois
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Schedule I-2
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia*
Illinois*
Michigan*
Minnesota*
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, Inc. Maryland
First Industrial Development Services Group, LLC Minnesota
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
--------------------
* Denotes jurisdictions on which counsel is opining.
Schedule I-3
SCHEDULE II
LIST OF DIRECTORS AND OFFICERS SUBJECT TO LOCKUP PROVISIONS
Xxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Johannson X. Xxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Draft
Xxxxx X. Xxxx
Xxxxx X. Xxxxxx
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Schedule II-1
EXHIBIT A
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated October 6, 1997 (the
"Underwriting Agreement") among First Industrial Realty Trust, Inc. (the
"Company") and First Industrial, L.P. and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation (the "Underwriter") relating to the public offering of
5,400,000 shares of common stock, par value $.01 per share, of the Company. This
letter is delivered by the undersigned to the Underwriters pursuant to Section
8(m) of the Underwriting Agreement. Capitalized terms used herein shall, unless
otherwise defined herein, have the meaning set forth in the Underwriting
Agreement.
The undersigned hereby agrees that the undersigned shall not, without the
prior written consent of the Underwriter, directly or indirectly sell, offer to
sell, contract to sell, grant any option to purchase or otherwise dispose of any
shares of Common Stock (including, without limitation, shares of Common Stock
which may be deemed to be beneficially owned in accordance with Rule 13d-3 under
the Securities Exchange Act of 1934, as amended, and shares of Common Stock
which may be received upon exercise of stock options or warrants) or any
securities convertible into or exercisable or exchangeable for Common Stock, or
in any other manner transfer all or a portion of the economic consequences
associated with the ownership of Common Stock (each of the foregoing actions, a
"Transfer"), prior to the expiration of 90 days from the date of the Prospectus
Supplement.
Notwithstanding the foregoing, no such consent shall be required in
connection with (i) the delivery to the Company, in connection with the exercise
of options or the grant of Common Stock under the Company's stock incentive
plan, of shares of Common Stock in satisfaction of the exercise price of such
options or applicable withholding requirements, (ii) the exchange or redemption
of limited partnership interests in First Industrial, L.P. ("Units") for shares
of Common Stock, (iii) the Transfer of shares of Common Stock acquired by the
undersigned in the open market, (iv) grants of a bona fide security
Exhibit A-1
interest in, or a bona fide pledge of, shares of Common Stock or Units to a
recognized financial institution and transactions contemplated by such grants or
pledges whether made before or after the date of the Underwriting Agreement, (v)
any Transfer to entities controlled by the undersigned and (vi) any Transfer to
members of the immediate family of the undersigned (or to an entity for their
benefit); provided that, in the case of a Transfer of the type described in
clause (vi), prior to making any such Transfer, the undersigned shall have
delivered a written instrument to the Underwriter in which the transferee agrees
to be bound by the restrictions contained in this agreement with respect to the
subject of such Transfer.
The obligation of the undersigned shall survive the death or incapacity of
the undersigned and shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
------------------------------
Name:
Date:
Address: _____________________
_____________________
_____________________
Agreed:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:_________________________
Authorized Signature
Exhibit A-2
