EXECUTION COPY
First Industrial, L.P.
$200,000,000 6.875% Notes due April 15, 2012
$50,000,000 7.750% Notes due April 15, 2032
Underwriting Agreement
April 4, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
FIRST UNION SECURITIES, INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
UBS WARBURG LLC
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
First Industrial, L.P., a Delaware limited partnership (the "Operating
Partnership"), by this agreement (the "Agreement") proposes to issue and sell to
the underwriters named in Schedule II hereto (collectively, the "Underwriters"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), each as specified in Schedule II hereto.
The Operating Partnership and First Industrial Realty Trust, Inc., a
Maryland corporation and the sole general partner of the Operating Partnership
(the "Company"), have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company or the Operating Partnership, as the case may be. The Operating
Partnership also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a prospectus
supplement specifically relating to the Securities (a "Prospectus Supplement").
The registration statement as amended to the date of this Agreement and
including any registration statement filed pursuant to Rule 462(b) under the
Securities Act (a "Rule 462(b) Registration Statement") is hereinafter referred
to as the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities
is hereinafter referred to as the "Prospectus." Any reference in this Agreement
to the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Securities will be issued in one or more series under an indenture,
dated as of May 13, 1997 (the "Original Indenture"), between the Operating
Partnership and U.S. Bank National Association, as trustee (the "Trustee"). The
title, aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms for each series of the
Securities shall be established by or pursuant to supplemental indenture No. 7
to the Original Indenture (as so supplemented, and as the same may be amended or
further supplemented from time to time, the "Indenture") to be entered into
between the Operating Partnership and the Trustee on or prior to the Closing
Date (as defined in Section 3).
Each of the Company and the Operating Partnership hereby severally agrees
with the Underwriters as follows:
1. The Operating Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Operating Partnership the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Operating Partnership understands that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made to the Operating Partnership or to
its order in immediately available funds on the date and at the time and place
set forth in Schedule I hereto in the section entitled "Closing Date and Time of
Delivery" (or at such other time and place on the same or such other date, not
later than the 7th Business Day thereafter, as you and the Operating Partnership
may agree in writing). Such payment will be made upon delivery to, or to you for
the respective accounts of, the Underwriters of the Securities registered in
such names and in such denominations as you shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Operating
Partnership. As used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New York City or
the City of Chicago. The time and date of such payment and delivery with respect
to the Securities are referred to herein as the "Closing Date." The Securities
will be delivered through the book entry facilities of The Depository Trust
Company ("DTC") and will be made available for inspection by you by 1:00 P.M.
New York City time two Business Days prior to the Closing Date at such place in
New York City as you, DTC and the Operating Partnership shall agree.
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4. The Company and the Operating Partnership, jointly and severally, represent
and warrant to each Underwriter as of the date hereof and the Closing Date that:
(a) The Company and the Operating Partnership meet the requirements for use
of Form S-3, and the Registration Statement has been declared effective by the
Commission;
(b) The Registration Statement and the Prospectus, including the financial
statements, schedules and related notes included in the Prospectus and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and when any post-effective
amendment to the Registration Statement or Rule 462(b) Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all applicable
provisions of the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder (the "TIA")
and will contain all statements required to be stated therein in accordance with
the Securities Act and the TIA. The Prospectus, including the financial
statements, schedules and related notes included or incorporated by reference in
the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at the time the Registration Statement became effective, and at
the Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did or
will comply in all material respects with all applicable provisions of the
Securities Act and the TIA and will contain all statements required to be stated
therein in accordance with the Securities Act and the TIA. On the date the
Registration Statement was declared effective, on the date hereof, on the date
of filing of any Rule 462(b) Registration Statement and on the Closing Date, no
part of the Registration Statement or any amendment did or will contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective, on
the date hereof, as of its date, on the date of filing of any Rule 462(b)
Registration Statement and at the Closing Date, the Prospectus did not and will
not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company and the Operating Partnership will have complied or will comply with
the requirements of Rule 111 under the Securities Act relating to the payment of
filing fees therefor. The foregoing representations and warranties in this
Section 4(b) do not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification under the TIA (the
"Form T-1"), and (ii) any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in writing to
the Company or the Operating Partnership by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. Neither the Company nor the Operating Partnership has
distributed any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the preliminary prospectus,
the Prospectus or any other materials, if any, permitted by the Securities Act
(which were disclosed to the Underwriters and the Underwriters' counsel);
(c) Any preliminary prospectus supplements, filed pursuant to Rule 424
under the Securities Act and each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Securities Act; did not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with the offering of Securities will,
at the time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T;
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(d) The documents incorporated or deemed to be incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the
time they were, or hereafter are, filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act, and,
when read together with other information included in, and incorporated by
reference in, the Prospectus, at the time the Registration Statement became
effective, as of the date of the Prospectus and as of the Closing Date, or
during the period specified in Section 5(e) did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing representations and warranties in
this Section 4(d) do not apply to the Form T-1 or to any statements or omissions
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company or the Operating Partnership by
the Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto;
(e) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and is in
good standing with the State Department of Assessments and Taxation of Maryland.
The Operating Partnership has been duly organized and is validly existing as a
limited partnership in good standing under and by virtue of the Delaware Revised
Uniform Limited Partnership Act. Each of First Industrial Financing Partnership,
L.P. (the "Financing Partnership"), First Industrial Securities, L.P.
("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage
Partnership") and First Industrial Pennsylvania Partnership, L.P. ("FIP"), First
Industrial Harrisburg, L.P. ("FIH") and First Industrial Indianapolis, L.P.
("FIIN") (the Financing Partnership, Securities, L.P., the Mortgage Partnership,
FIH, FIIN and FIP are referred to collectively herein as the "Partnership
Subsidiaries") has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the laws of its jurisdiction
of organization. First Industrial Alrai LLC ("FIA") has been duly organized and
is validly existing as a limited liability company in good standing under and by
virtue of the laws of its jurisdiction of organization. Each of First Industrial
Securities Corporation ("FISC"), First Industrial Indianapolis Corporation
("FIIC"), First Industrial Finance Corporation ("FIFC"), First Industrial
Mortgage Corporation ("FIMC"), First Industrial Development Services, Inc.
("FIDSI") and First Industrial Pennsylvania Corporation ("FIPC"), (FISC, FIIC,
FIFC, FIMC, FIDSI and FIPC are referred to collectively herein as the "Corporate
Subsidiaries," and the Partnership Subsidiaries and the Corporate Subsidiaries
are referred to herein collectively as the "Subsidiaries"), has been duly
organized and is validly existing as a corporation in good standing under and by
virtue of the laws of its jurisdiction of incorporation. Other than the
Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which
the Company owns any equity securities constitute, individually or in the
aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X
promulgated under the Exchange Act. The Company is the sole general partner of
the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and
is the sole general partner of the Financing Partnership. FIM is a wholly-owned
subsidiary of the Company and is the sole general partner of the Mortgage
Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole
general partner of Securities, L.P. The Operating Partnership and FISC are the
only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of
the Company and is the sole general partner of FIP. FIIC is a wholly-owned
subsidiary of the Company and is the sole general partner of FII. FIHC is a
wholly-owned subsidiary of the Company and is the sole general partner of FIH.
FIDSI is a wholly-owned subsidiary of the Operating Partnership. The Operating
Partnership is the sole limited partner of each Partnership Subsidiary (except
for Securities, L.P.). The Company, the Operating Partnership and each of the
Subsidiaries has, and at the Closing Date will have, full corporate, partnership
or limited liability company power and authority, as the case may be, to conduct
all the activities conducted by it, to own, lease or operate all the properties
and other assets owned, leased or operated by it and to conduct its business in
which it engages or proposes to engage as described in the
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Prospectus and the transactions contemplated hereby and thereby. The Company and
each of the Corporate Subsidiaries is, and at the Closing Date will be, duly
qualified or registered to do business and in good standing as a foreign
corporation in all jurisdictions in which the nature of the activities conducted
by it or the character of the properties and assets owned, leased or operated by
it makes such qualification or registration necessary, except where failure to
obtain such qualifications or registration will not have a material adverse
effect on (i) the condition, financial or otherwise, or the earnings, assets or
business affairs or prospects of the Operating Partnership, Company and their
Subsidiaries, taken as a whole or on the 918 in service properties owned,
directly or indirectly, by the Company as of December 31, 2001 (the
"Properties") taken as a whole, (ii) the issuance, validity or enforceability of
the Securities or (iii) the consummation of any of the transactions contemplated
by this Agreement (each a "Material Adverse Effect"), which jurisdictions of
foreign qualification or registration are identified in Schedule III hereto. The
Operating Partnership and each of the Partnership Subsidiaries is, and at the
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned,
leased or operated by it makes such qualification or registration necessary,
except where failure to obtain such qualification or registration will not have
a Material Adverse Effect, which jurisdictions of foreign qualification or
registration are identified in Schedule III hereto. Complete and correct copies
of the articles of incorporation and of the by-laws of the Company, the
certificate of limited partnership and agreement of limited partnership of the
Operating Partnership and the charter documents, partnership agreements and
other organizational documents of the Subsidiaries and all amendments thereto as
have been requested by the Underwriters or their counsel have been delivered to
the Underwriters or their counsel;
(f) The Securities have been duly authorized for issuance and sale in
accordance with this Agreement by the Company, as general partner of the
Operating Partnership, and, when issued by the Operating Partnership and
authenticated and delivered by the Trustee in accordance with the terms of the
Indenture, and paid for by the Underwriters pursuant to this Agreement, such
Securities will be valid and legally binding unsecured obligations of the
Operating Partnership entitled to the benefit of the Indenture and enforceable
against the Operating Partnership in accordance with their respective terms,
subject to (1) 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 (2) 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 Indenture has been duly qualified under
the TIA and prior to the issuance of the Securities will be duly authorized,
executed and delivered by the Operating Partnership and the Company, and
assuming due authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding obligation of the Operating Partnership,
enforceable in accordance with its terms subject to (1) 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 (2) 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 Securities will conform, and the Indenture will conform, to the
statements relating thereto contained in the Prospectus; and the Securities are
in the form contemplated by the Indenture;
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as general partner and a limited partner and the partnership agreement
of each Partnership Subsidiary will have been duly authorized, validly executed
and delivered by each partner thereto and (assuming in the case of the Operating
Partnership the due authorization, execution and delivery of the partnership
agreement by each limited partner other than the Company) each such partnership
agreement will be a valid, legally binding and enforceable in
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accordance with its terms immediately following the Closing Date subject to (i)
the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding
therefor may be brought. All of the issued and outstanding shares of capital
stock of the Company and each Corporate Subsidiary, all of the outstanding units
of general, limited and/or preferred partner interests of the Operating
Partnership and each Partnership Subsidiary will have been duly authorized and
are validly issued, fully paid and non-assessable; and (except as described in
the Prospectus) will be owned directly or indirectly (except in the case of the
Company) by the Company or the Operating Partnership, as the case may be, free
and clear of all security interests, liens and encumbrances (except for pledges
in connection with the loan agreements of the Company, the Operating Partnership
and the Subsidiaries), and all of the partnership interests in each Partnership
Subsidiary will have been duly authorized and are validly issued, fully paid,
and (except as described in the Prospectus) will be owned directly or indirectly
by the Company or the Operating Partnership, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with the
loan agreements of the Company, the Operating Partnership and the Subsidiaries);
(h) The financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Registration Statement and the
Prospectus comply in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial condition of the entity or entities or group presented or
included therein, as of the respective dates thereof, and its consolidated
results of operations and cash flows for the respective periods covered thereby,
are all in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. The financial information and data included in the
Registration Statement and the Prospectus present fairly the information
included or incorporated by reference therein and have been prepared on a basis
consistent, except as may be noted therein, with that of the financial
statements, schedules and notes included or incorporated by reference in the
Registration Statement and the Prospectus and the books and records of the
respective entity or entities or group presented or included therein. Except as
otherwise noted in the Prospectus, pro forma and/or as adjusted financial
information included or incorporated by reference in the Prospectus has been
prepared in accordance with the applicable requirements of the Securities Act
and the American Institute of Certified Public Accountants ("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and includes
all adjustments necessary to present fairly the pro forma and/or as adjusted
financial condition of the entity or entities or group presented or included
therein at the respective dates indicated and the results of operations and cash
flows for the respective periods specified. The Company's and the Operating
Partnership's ratio of earnings to fixed charges included in the Prospectus and
in Exhibit 12 to the Registration Statement have been calculated in compliance
with Item 503(d) of Regulation S-K of the Commission. No other financial
statements (or schedules) of the Company, the Operating Partnership and the
Partnership Subsidiaries or any predecessor of the Company and/or the Operating
Partnership and the Partnership Subsidiaries are required by the Act or the
Exchange Act to be included in the Registration Statement or the Prospectus.
PricewaterhouseCoopers LLP (the "Accountants") who have reported on such
financial statements, schedules and related notes, are independent public
accountants with respect to the Company, the Operating Partnership and the
Partnership Subsidiaries as required by the Securities Act;
(i) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and prior to the Closing Date, (i)
there has not been and will not have been, except as set forth in or
contemplated by the Registration Statement and the Prospectus, any change in the
capitalization, long term or short term debt or in the capital stock or equity
of each of the Operating
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Partnership and the Company or any of the Subsidiaries which would be material
to the Operating Partnership, the Company and the Subsidiaries considered as one
enterprise (anything which would be material to the Operating Partnership, the
Company and the Subsidiaries, considered as one enterprise, being hereinafter
referred to as "Material"), (ii) except as described in the Prospectus, neither
the Operating Partnership, the Company nor any of the Subsidiaries has incurred
nor will any of them incur any liabilities or obligations, direct or contingent,
which would be Material, nor has any of them entered into nor will any of them
enter into any transactions, other than pursuant to this Agreement and the
transactions referred to herein or as contemplated in the Prospectus, which
would be Material, (iii) there has not been any Material Adverse Effect, (iv)
except for regular quarterly distributions on the Company's shares of common
stock, par value $0.01 per share (the "Common Stock"), and the dividends on the
shares of the Company's (a) Depositary Shares each representing 1/100 of a share
of 8 3/4 Series B Cumulative Preferred Stock (the "Series B Preferred Stock"),
(b) Depositary Shares each representing 1/100 of a share of 8 3/4 Series C
Cumulative Preferred Stock (the "Series C Preferred Stock"), (c) Depositary
Shares each representing 1/100 of a share of 7.95% Series D Cumulative Preferred
Stock (the "Series D Preferred Stock") and (d) Depositary Shares each
representing 1/100 of a share of 7.90% Series E Cumulative Preferred Stock (the
"Series E Preferred Stock"), the Company has not paid or declared and will not
pay or declare any dividends or other distributions of any kind on any class of
its capital stock, and (v) except for distributions in connection with regular
quarterly distributions on partnership units, the Operating Partnership has not
paid any distributions of any kind on its partnership units;
(j) Neither the Operating Partnership, the Company nor any of the
Subsidiaries is, or as of the Closing Date will be, required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
(k) To the knowledge of the Company or the Operating Partnership, after due
inquiry, except as set forth in the Registration Statement and the Prospectus,
there are no actions, suits, proceedings, investigations or inquiries, pending
or, after due inquiry, threatened against or affecting the Operating
Partnership, the Company or any of the Subsidiaries or any of their respective
officers or directors in their capacity as such or of which any of their
respective properties or assets or any Property is the subject or bound, before
or by any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an unfavorable
ruling, decision or finding would reasonably be expected to have a Material
Adverse Effect;
(l) The Operating Partnership, the Company and each of the Subsidiaries (i)
has, and at the Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus and are in material compliance with
such, and (B) complied in all material respects with all laws, regulations and
orders applicable to it or its business and (ii) are not, and at the Closing
Date will not be, in breach of or default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a "Contract or Other
Agreement") or under any applicable law, rule, order, administrative regulation
or administrative or court decree to which it is a party or by which any of its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any Material contract or other agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. Neither the Operating Partnership, the Company nor any
of the Subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its
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articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other organizational document, as the case may be;
(m) No Material consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body or any other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder except such as have been obtained under the Securities Act,
the Exchange Act and the TIA and such as may be required under state securities,
Blue Sky or real estate syndication laws or the by-laws, the corporate financing
rule or the conflict of interests rule of the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the purchase and distribution by
the Underwriters of the Securities or such as have been received prior to the
date of this Agreement, and except for the filing of this Agreement, the
Indenture and the form of Securities with the Commission as exhibits to a Form
8-K, which the Operating Partnership and the Company agree to make in a timely
manner;
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, constitutes a valid and binding agreement
of the Company and the Operating Partnership, and assuming due authorization,
execution and delivery by the Underwriters, is enforceable against the Operating
Partnership in accordance with the terms hereof and thereof subject to (i) the
effect of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding
therefor may be brought. The execution, delivery and performance of this
Agreement and the Indenture and the consummation of the transactions
contemplated hereby, and compliance by each of the Company, the Operating
Partnership and the Subsidiaries with its obligations hereunder, will not result
in the creation or imposition of any lien, charge or encumbrance upon any of the
assets or properties of the Operating Partnership, the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the certificate of
incorporation, by-laws, certificate of limited partnership, partnership
agreement or other organizational documents of the Operating Partnership, the
Company or any of the Subsidiaries, any Contract or Other Agreement to which the
Operating Partnership, the Company or any of the Subsidiaries is a party or by
which the Operating Partnership, the Company or any of the Subsidiaries or any
of their assets or properties are bound or affected, or violate or conflict with
any judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency (foreign or domestic) or body applicable to the
business or properties of the Operating Partnership, the Company or any of the
Subsidiaries or to the Properties, in each case except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not have
a Material Adverse Effect;
(o) As of the Closing Date, the Operating Partnership, the Company and each
of the Subsidiaries will have good and marketable title to all properties and
assets described in the Prospectus as owned by it, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement or the Prospectus, or such as secure the
Company's loan facilities of the Operating Partnership, the Company and the
Subsidiaries, or would not result in a Material Adverse Effect;
(p) 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
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any of such leases, except in each case such defaults that would not have a
Material Adverse Effect; (ii) the current use and occupancy of each of the
Properties complies in all material respects with all applicable codes and
zoning laws and regulations, except for such failures to comply which would not
individually or in the aggregate have a Material Adverse Effect; and (iii) there
is no pending or threatened condemnation, zoning change, environmental or other
proceeding or action that will in any material respect affect the size of, use
of, improvements on, construction on, or access to the Properties except such
proceedings or actions that would not have a Material Adverse Effect;
(q) The Operating Partnership, the Company and the Partnership Subsidiaries
have property, title, casualty and liability insurance in favor of the Operating
Partnership, the Company or the Partnership Subsidiaries with respect to each of
the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Operating Partnership, the Company
and the Partnership Subsidiaries except in such instances where the tenant is
carrying such insurance or the tenant is self-insuring such risks;
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Operating Partnership, the Company and the
Subsidiaries, after due inquiry, the operations of the Operating Partnership,
the Company and the Subsidiaries are in compliance with all Environmental Laws
(as defined below) and all requirements of applicable permits, licenses,
approvals and other authorizations issued pursuant to Environmental Laws; (ii)
to the knowledge of the Operating Partnership, the Company and the Subsidiaries,
after due inquiry, none of the Operating Partnership, the Company or the
Subsidiaries has caused or suffered to occur any Release (as defined below) of
any Hazardous Substance (as defined below) into the Environment (as defined
below) on, in, under or from any Property, and no condition exists on, in, under
or adjacent to any Property that could reasonably be expected to result in the
incurrence of liabilities under, or any violations of, any Environmental Law or
give rise to the imposition of any Lien (as defined below), under any
Environmental Law; (iii) none of the Operating Partnership, the Company or the
Subsidiaries has received any written notice of a claim under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances on, in,
under or originating from any Property; (iv) none of the Operating Partnership,
the Company or the Subsidiaries has actual knowledge of, or received any written
notice from any Governmental Authority (as defined below) claiming, any
violation of any Environmental Law or a determination to undertake and/or
request the investigation, remediation, clean-up or removal of any Hazardous
Substance released into the Environment on, in, under or from any Property; and
(v) no Property is included or, to the knowledge of the Operating Partnership,
the Company or the Subsidiaries, after due inquiry, proposed for inclusion on
the National Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA"), or included on the
Comprehensive Environmental Response, Compensation, and Liability Information
System database maintained by the EPA, and none of the Operating Partnership,
the Company or the Subsidiaries has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a potential
CERCLA removal, remedial or response site or, to the knowledge of the Company
and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous material,
including, without limitation, oil, petroleum or any petroleum-derived substance
or waste, asbestos or asbestos-containing materials, PCB's, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject to
regulation under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall
mean any surface water, drinking water,
9
ground water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air; "Environmental
Law" shall mean the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss. 6901,
et seq.), the Clean Air Act, as amended (42 U.S.C. ss. 7401, et seq.), the Clean
Water Act, as amended (33 U.S.C. ss. 1251, et seq.), the Toxic Substances
Control Act, as amended (15 U.S.C. ss. 2601, et seq.), the Occupational Safety
and Health Act of 1970, as amended (29 U.S.C. ss. 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), and all
other federal, state and local laws, ordinances, regulations, rules and orders
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or authority to
promulgate, implement or enforce any Environmental Law; "Lien" shall mean, with
respect to any Property, any mortgage, deed of trust, pledge, security interest,
lien, encumbrance, penalty, fine, charge, assessment, judgment or other
liability in, on or affecting such Property; and "Release" shall mean any
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment or discard
of barrels, containers, tanks (including, without limitation, underground
storage tanks) or other receptacles containing or previously containing and
containing a residue of any Hazardous Substance.
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Operating Partnership, the Company or any of the Subsidiaries, and none of them
nor any of their directors, officers or employees is connected with the
Operating Partnership, the Company or any of the Subsidiaries as a promoter,
selling agent, voting trustee, director, officer or employee.
(s) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so that the Company qualifies as a real estate
investment trust ("REIT") under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company has elected to be taxed
as a REIT under the Code commencing with the taxable year ending December 31,
1994. The Company, the Operating Partnership and the Subsidiaries intend to
continue to be organized and operate so that the Company shall qualify as a REIT
for the foreseeable future, unless the Company's board of trustees determines
that it is no longer in the best interests of the Company to be so qualified;
(t) There is no material document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or
filed as required therein, except for the filing of this Agreement, the
Indenture and the form of Securities with the Commission as exhibits to a Form
8-K, which the Company agrees to make in a timely manner, and the descriptions
thereof or references thereto are accurate in all material respects;
(u) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry, is
any such dispute threatened which would be Material;
(v) The Operating Partnership, the Company and the Subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in or necessary for the conduct of
their respective businesses as described in the Prospectus. To the knowledge of
the Company or the Operating Partnership, no claims have been asserted by any
person to the use of any such trademarks or trade names or challenging or
questioning the validity or effectiveness
10
of any such trademark or trade name. The use, in connection with the business
and operations of the Operating Partnership, the Company and the Subsidiaries,
of such trademarks and trade names does not, to the Company's or the Operating
Partnership's knowledge, infringe on the rights of any person;
(w) Each of the Operating Partnership, the Company and the Subsidiaries has
filed all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file would
not result in a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing would otherwise be delinquent, except, in all cases,
for any such tax, assessment, fine or penalty that is being contested in good
faith and except in any case in which the failure to so pay would not result in
a Material Adverse Effect;
(x) The Operating Partnership and each of the Partnership Subsidiaries is
properly treated as a partnership for federal income tax purposes and not as a
"publicly traded partnership";
(y) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company, the
Operating Partnership or the Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(z) The Company and the Operating Partnership have not taken and will not
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Securities, and the Company and the Operating Partnership have not
distributed and have agreed not to distribute any prospectus or other offering
material in connection with the offering and sale of the Securities other than
the Prospectus, any preliminary prospectus filed with the Commission or other
material permitted by the Securities Act (which were disclosed to you and your
counsel);
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets, financial and
corporate books and records is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(bb) Any certificate or other document signed by any officer or authorized
representative of the Operating Partnership, the Company or any Subsidiary, and
delivered to the Underwriters or to counsel for the Underwriters in connection
with the sale of the Securities shall be deemed a representation and warranty by
such entity or person, as the case may be, to each Underwriter as to the matters
covered thereby;
(cc) The Securities will have an investment grade rating from one or more
nationally recognized statistical rating organizations as specified in Schedule
I hereto; and
(dd) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted, or to the knowledge of the
Company or the Operating Partnership, threatened by the Commission or by the
state securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus or any preliminary
11
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.
5. Each of the Company and the Operating Partnership covenants and agrees with
each Underwriter as follows:
(a) In respect of the offering of the Securities, the Operating Partnership
will (i) prepare a Prospectus Supplement setting forth the aggregate principal
amount of Securities covered thereby and their terms not otherwise specified in
the Basic Prospectus pursuant to which the Securities are being issued, the
names of the Underwriters participating in the offering and the aggregate
principal amount of Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the offering,
the price at which the Securities are to be purchased by the Underwriters from
the Operating Partnership, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriters and the Operating Partnership deem appropriate in connection with
the offering of the Securities, (ii) file the Prospectus in a form approved by
you pursuant to Rule 424 under the Securities Act within the applicable time
period prescribed by such rule for such filing and (iii) furnish copies of the
Prospectus to the Underwriters and to such dealers as you shall specify in New
York City prior to 10:00 A.M., New York City time on the second business day
following the execution and delivery of this Agreement.
(b) The Operating Partnership will comply with the Securities Act and the
Exchange Act so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration Statement
and the Prospectus. At any time when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
Securities, the Operating Partnership will advise you promptly and, if requested
by you, confirm such advice in writing, of (i) the effectiveness of any
amendment to the Registration Statement (ii) the transmittal to the Commission
for filing of any Prospectus or other supplement or amendment to the Prospectus
to be filed pursuant to the Securities Act, (iii) the receipt of any comments
from the Commission relating to the Registration Statement, any preliminary
prospectus, the Prospectus or any of the transactions contemplated by this
Agreement, (iv) any request by the Commission for post-effective amendments to
the Registration Statement or amendments or supplements to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (vi) the happening of
any event which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Operating Partnership 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 Operating Partnership will make every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) The Operating Partnership 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 documents incorporated by
reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it and document
incorporated by reference, as you may reasonably request. If applicable, the
copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T;
12
(d) At any time when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act in connection with sales of Securities, not
to file any amendment to the Registration Statement or any Rule 462(b)
Registration Statement or to make any amendment or supplement to the Prospectus
or any Term Sheet, if applicable, of which you shall not previously have been
advised or to which you or counsel for the Underwriters shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement, Rule 462(b) Registration
Statement, Term Sheet, or amendment or supplement to the Prospectus which, in
the opinion of counsel for the Underwriters, may be necessary in connection with
the distribution of the Securities by you, and to use its best efforts to cause
the same to become promptly effective. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(e) If, at any time when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of Securities,
any event shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law, the
Operating Partnership will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriters) so that the statements
in the Prospectus, as so amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when
it is so delivered, not misleading, or so that the Prospectus will comply with
any law, and to furnish to each Underwriter and to such dealers as you shall
specify, such number of copies thereof as such Underwriter or dealers may
reasonably request;
(f) The Operating Partnership will use its best efforts, in cooperation
with the Underwriters, to qualify, register or perfect exemptions for the
Securities for offer and sale by the several Underwriters to qualified
institutions under the applicable state securities, Blue Sky and real estate
syndication laws of such jurisdictions as you may reasonably request; provided,
however, the Operating Partnership will not be required to qualify as a foreign
limited partnership, 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 partnership agreement that the general partner of the
Operating Partnership reasonably determines to be contrary to the best interests
of the Operating Partnership and its unitholders. In each jurisdiction in which
the Securities have been so qualified or registered, the Operating Partnership
will use all reasonable efforts to file such statements and reports as may be
required by the laws of such jurisdiction, to continue such qualification or
registration in effect for so long a period as the Underwriters may reasonably
request for the distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such qualification or registration; provided, however, the Operating Partnership
will not be required to qualify as a foreign limited partnership, 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
partnership agreement that the general partner of the Operating Partnership
reasonably determines to be contrary to the best interests of the Operating
Partnership and its unitholders;
(g) To make generally available to the holders of the Securities as soon as
reasonably practicable but not later than sixty days after the close of the
period covered thereby (ninety days in the event the close of such period is the
close of the Operating Partnership's fiscal year), an earnings statement (in
form complying with the provisions of Rule 158 of the Securities Act) covering a
period of
13
at least twelve months after the effective date of the Registration Statement
(but in no event commencing later than ninety days after such date) which shall
satisfy the provisions of Section 11(a) of the Securities Act, and, if required
by Rule 158 of the Securities Act, to file such statement as an exhibit to the
next periodic report required to be filed by the Operating Partnership 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 and the Operating Partnership will furnish to you as soon as available
(x) a copy of each regular and periodic report, financial statement or other
publicly available information of the Operating Partnership, the Company and any
Subsidiary mailed to the holders of the Securities or filed with the Commission
or any securities exchange and (y) such other publicly available information
concerning the Operating Partnership, the Company and any Subsidiary as you may
reasonably request;
(i) During the period when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of the
Securities, to file all documents required to be filed by it with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act;
(j) The Operating Partnership will pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement and any amendment thereto
(including financial statements and exhibits), each preliminary prospectus, the
Prospectus and all amendments and supplements to any of them prior to or during
the period specified in Section 5(e), (ii) the printing and delivery of this
Underwriting Agreement, the Indenture, any Supplemental Indentures and any Blue
Sky Memorandum, (iii) the qualification or registration of the Securities for
offer and sale under certain limited securities, Blue Sky or real estate
syndication laws of certain states in accordance with Section 5(f) hereof, (iv)
the fee of and the filings and clearance, if any, with the NASD in connection
with the offering, (v) the fees charged by nationally recognized statistical
rating organizations for the rating of the Securities, (vi) furnishing such
copies of the Registration Statement, the preliminary prospectus, the Prospectus
and all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the Underwriters or by
dealers to whom Securities may be sold, (vii) the preparation, issuance and
delivery of certificates for the Securities to the Underwriters, (viii) the
costs and charges of any transfer agent or registrar, (ix) the costs and
expenses of the Trustee under the Indenture, (x) any expenses incurred by the
Operating Partnership in connection with a "road show" presentation to potential
investors, (xi) any transfer taxes imposed on the sale by the Operating
Partnership of the Securities to the Underwriters and (xii) the fees and
disbursements of the Operating Partnership's counsel and accountants;
(k) The Operating Partnership will use its best efforts to do and perform
all things required to be done and performed under this Agreement by the
Operating Partnership prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities;
(l) The Operating Partnership will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus Supplement
under "Use of Proceeds";
(m) The Operating Partnership will prepare and file or transmit for filing
with the Commission in accordance with Rule 424(b) of the Securities Act copies
of the Prospectus;
(n) The Company will use its best efforts to continue to qualify as a REIT
under Sections 856 through 860 of the Code unless the Company's board of
trustees determines that it is no longer in the best interests of the Company to
be so qualified;
(o) To take all reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), Moody's Investors Service, Inc ("Moody's"), Fitch Investors
Services, L.P. or any other
14
nationally recognized rating organization to provide their respective credit
ratings of the Securities, as specified in Schedule I hereto;
(p) The Operating Partnership will cooperate with the Representatives and
use commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC; and
(q) The Operating Partnership and the Company will execute a supplemental
indenture to the Original Indenture designating each series of debt securities
to be offered and its related terms and provisions in accordance with the
provisions of the Indenture.
6. The several obligations of the Underwriters hereunder shall be subject to the
performance by the Company and the Operating Partnership of their respective
obligations hereunder and to the following conditions:
(a) the Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by such Rule; no stop order suspending the
effectiveness of the Registration Statement or the Prospectus shall be in
effect, and no proceedings for such purpose shall have been commenced or shall
be pending before or threatened by the Commission to the knowledge, after due
inquiry, of the Company or the Operating Partnership; no stop order suspending
the effectiveness of the Registration Statement or the Prospectus shall be in
effect and no proceedings for such purpose shall have been commenced or shall be
pending before or threatened by the state securities authority of any
jurisdiction, to the knowledge of the Company or the Operating Partnership; and
all requests for additional information on the part of the Commission shall have
been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the Operating
Partnership contained in this Agreement shall be true and correct on the Closing
Date, with the same force and effect as if made on and as of the Closing Date
and the Company and the Operating Partnership shall have complied with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company or the Operating
Partnership by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
change in the capital stock, partners' equity or long-term debt of the Company,
the Operating Partnership or any of the Subsidiaries on a consolidated basis,
except as described or contemplated in the Prospectus, or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, properties,
financial position, stockholders' equity, partners' equity or results of
operations of the Company, the Operating Partnership and the Subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus and/or the Indenture; and other
than as set forth in the Prospectus, no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any
15
Property before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding could
reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a certificate
signed by the President or Chief Executive Officer of the Company and the Chief
Financial or Accounting Officer of the Company, in their capacities as officers
of the Company, on behalf of the Company for itself and as general partner of
the Operating Partnership, satisfactory to you to the effect set forth in
subsections (a) through (d) of this Section 6(e) and to the further effect that
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
business, prospects, management, properties, financial position, stockholders'
equity, partners' equity or results of operations of the Operating Partnership,
the Company and the Subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) you shall have received on the Closing Date, an opinion or opinions
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Cahill Gordon & Reindel, counsel for the Company and the Operating
Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign corporation to
transact business and is in good standing in each jurisdiction identified with
an asterisk in Schedule III hereto, and each Corporate Subsidiary is duly
qualified or registered as a foreign corporation to transact business and is in
good standing in each jurisdiction identified with an asterisk in Schedule III
hereto, in each case except where the failure to obtain such qualification or
registration will not have a Material Adverse Effect.
(ii) The Operating Partnership and each of the Subsidiaries has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of its state of organization. The Operating Partnership and each of the
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 and the Indenture. The Operating
Partnership and each of the Subsidiaries is duly qualified or registered as a
foreign partnership and is in good standing in each jurisdiction identified with
an asterisk in Schedule III hereto, in each case except where the failure to
obtain such qualification or registration will not have a Material Adverse
Effect.
(iii) To the knowledge of such counsel, none of the Company, the Operating
Partnership or the Subsidiaries is in violation of or default under its charter,
by-laws, certificate of limited partnership or partnership agreement, as the
case may be, and none of such entities is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
document (as in effect on the date of such opinion) listed as an exhibit to the
Registration Statement, each of the Company's and the Operating Partnership's
Annual Report on Form 10-K, as amended, if applicable, to which such entity is a
party or by which such entity may be bound, or to which any of the property or
assets of such entity or any Property is subject to or bound by (it being
understood that (i) such counsel need express no opinion with respect to matters
relating to any contract, indenture, mortgage, loan agreement, note lease, joint
venture or partnership agreement or other instrument or agreement relating to
the acquisition, transfer, operation, maintenance, management or financing of
any property or assets of such entity or any other Property and (ii) such
counsel may assume compliance with the financial covenants contained in any such
document), except in each case for violations or defaults which in the aggregate
are not reasonably expected to have a Material Adverse Effect.
16
(iv) This Agreement was duly and validly authorized, executed and delivered
by each of the Company and the Operating Partnership.
(v) The issuance of the Securities has been duly authorized by the Company
on behalf of the Operating Partnership, and when executed and authenticated by
the Trustee in accordance with the terms of the Indenture, and delivered to, and
paid for by, the Underwriters in accordance with the terms of this Agreement,
such Securities will constitute valid and legally binding obligations of the
Operating Partnership entitled to the benefits provided for in the Indenture,
enforceable against the Operating Partnership in accordance with their terms
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding at equity or law).
(vi) The Indenture has been duly and validly authorized, executed and
delivered by the Company, as general partner of the Operating Partnership, and
the Operating Partnership and assuming due authorization, execution and delivery
thereof by the Trustee, will constitute a valid and legally binding agreement of
the Company and the Operating Partnership, enforceable against the Operating
Partnership 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 to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at equity or law); and the Indenture has been duly qualified under
the TIA.
(vii) The Indenture and the Securities conform in all material respects to
the descriptions thereof in the Registration Statement and the Prospectus under
the captions "Description of Notes" and "Description of Debt Securities."
(viii) The Registration Statement has been declared effective under the
Securities Act and the Indenture has been qualified under the TIA, 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.
(ix) The execution and delivery of this Agreement and the Indenture, the
issuance and sale of the Securities and the performance by the Company and the
Operating Partnership of their respective obligations under the Securities, this
Agreement and the Indenture and the consummation of the transactions herein and
therein contemplated will not require, to such counsel's knowledge, any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such as may be required
under the Securities Act, the TIA and the state securities, Blue Sky or real
estate syndication laws in connection with the purchase and distribution of the
Securities by the Underwriters) and did not and do not conflict with or
constitute a breach or violation of or default under: (1) any document (as in
effect on the date of such opinion) listed as an exhibit to the Registration
Statement, each of the Company's and the Operating Partnership's Annual Report
on Form 10-K, as amended, if applicable, to which any such entity is a party or
by which it or any of them or any of their respective properties or other assets
may be bound or subject and of which such counsel is aware (it being understood
that (i) such counsel need express no opinion with respect to matters relating
to any contract, indenture, mortgage, loan agreement, note lease, joint venture
or partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing of any
property or assets of such entity or any other Property and (ii) such counsel
may assume compliance with the financial covenants contained in any such
document); (2) the certificate of limited partnership or partnership agreement,
as the case may be, of the Operating Partnership, the Financing Partnership, and
Securities, L.P. or the articles of incorporation or bylaws, as
17
the case may be, of the Company, FIFC or FISC; (3) any applicable law, rule or
administrative regulation, except in each case for conflicts, breaches,
violations or defaults that in the aggregate would not have a Material Adverse
Effect.
(x) To the knowledge of such counsel, no Material authorization, approval,
consent or order of any court or governmental authority or agency or any other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under the Securities Act,
the TIA or the by-laws, corporate financing rule and conflict of interest rule
of the NASD, or state securities, blue sky or real estate syndication laws, or
such as have been received prior to the date of such opinion.
(xi) The Registration Statement, at the time it became effective and the
Prospectus, as of the date of the Prospectus Supplement (in each case, other
than the Form T-1 and the financial statements, including the notes and
schedules thereto, or any other financial or statistical data that is found in
or derived from the internal accounting or other records of the Company, the
Operating Partnership or their respective subsidiaries set forth in or
incorporated by reference therein or the information under the caption "Notice
to Canadian Residents" in the Prospectus, as to which no opinion need be
rendered), complied as to form in all material respects with the requirements of
the Securities Act and the Exchange Act.
(xii) Each of the Underwriters is receiving good, valid and marketable
title to the Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the Underwriters acquire
such Securities in good faith and without notice of any such security interests,
mortgages, pledges, liens, encumbrances, claims or equities.
(xiii) The information in the Prospectus under "Description of the Notes,"
"Certain United States Federal Income Tax Considerations," "Risk Factors,"
"Description of Debt Securities," "Restrictions on Transfers of Capital Stock"
and "Federal Income Tax Considerations," to the extent that it constitutes
statements of law, descriptions of statutes, rules or regulations, or summaries
of documents or legal conclusions, has been reviewed by us and is correct in all
material respects and presents fairly the information required to be disclosed
therein.
(xiv) To such counsel's knowledge, there is no document or contract of a
character required to be described or referred to in the Registration Statement
and Prospectus or to be filed as exhibits thereto by the Securities Act other
than those described or referred to therein or filed as exhibits thereto, and
the descriptions thereof or references thereto are accurate in all material
respects.
(xv) The partnership agreement of each of the Operating Partnership,
Securities, L.P. and the Financing Partnership has been duly authorized, validly
executed and delivered by each of the Company and the 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).
(xvi) The Company and the Operating Partnership satisfy all conditions and
requirements for filing the Registration Statement on Form S-3 under the Act.
(xvii) None of the Company or the Subsidiaries is required to be registered
as an investment company under the Investment Company Act of 1940, as amended.
In addition, Cahill Gordon & Reindel shall state that they have
participated in conferences with officers and other representatives of the
Company, the Operating Partnership and the Subsidiaries,
18
representatives of the independent public accountants for the Company, the
Operating Partnership and the Subsidiaries and representatives of the
Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed. On the basis thereof, but without
independent verification by such counsel of, and without passing upon or
assuming any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus or any
amendments or supplements thereto, no facts have come to the attention of such
counsel that lead them to believe that (i) the Registration Statement, including
the documents incorporated therein by reference, at the time such Registration
Statement became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading or (ii) the Prospectus, as
of its date or at the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, including the notes and
schedules thereto, or any other financial or statistical data that is found in
or derived from the internal accounting or other records of the Company, the
Operating Partnership or their respective subsidiaries set forth in or
incorporated by reference into the Registration Statement, Prospectus or the
Form T-1 or the information under the caption "Notice to Canadian Residents").
In giving its opinion, such counsel may rely (i) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Operating Partnership,
the Corporate Subsidiaries and the Partnership Subsidiaries, (ii) as to matters
of Maryland law, on the opinion of McGuire Woods L.L.P., Baltimore, Maryland,
which opinion shall be in form and substance reasonably satisfactory to counsel
for the Underwriters, (iii) as to matters of Illinois law, on the opinion of
Barack Ferrazzano Kirschbaum, Perlman & Nagelberg, Chicago, Illinois, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Underwriters, and (iv) as to the good standing and qualification of the
Company, the Operating Partnership, the Corporate Subsidiaries and the
Partnership Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel in such
jurisdictions. Counsel need express no opinion (A) as to the enforceability of
forum selection clauses in the federal courts or (B) with respect to the
requirements of, or compliance with, any state securities or "Blue Sky" or real
estate syndication laws;
(g) You shall have received on the Closing Date, an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of McGuire
Woods 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 and the
Indenture.
(iii) The issuance of Securities have been duly authorized by the Company
on behalf of the Operating Partnership.
(iv) Each of this Agreement and the Indenture was duly and validly
authorized by the Company, on behalf of itself and the Operating Partnership.
19
(v) The execution and delivery of this Agreement and the Indenture, the
performance of the obligations and the consummation of the transaction set forth
herein and therein by the Company will not require, to the knowledge of such
counsel, any consent, approval, authorization or other order of any Maryland
court, regulatory body, administrative agency or other governmental body (except
as such may be required under the Securities Act or other securities laws) and
did not and do not conflict with or constitute a breach or violation of or
default under: (A) the charter or by-laws, as the case may be, of the Company;
and (B) any applicable Maryland law, rule or administrative regulation or any
order or administrative or court decree of which such counsel is aware, except
in each case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material authorization, approval,
consent or order of any Maryland court, governmental authority, agency or other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under Maryland securities,
blue sky or real estate syndication laws.
(vii) The information in the Prospectus under "Certain Provisions of
Maryland Law and The Company's Articles of Incorporation and Bylaws" and
"Restrictions on Transfers of Capital Stock" and in Part II of the Registration
Statement under Item 15, to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, summaries of documents or legal
conclusions, has been reviewed by such counsel and, as to Maryland law, is
correct in all material respects and presents fairly the information required to
be disclosed therein.
(viii) The Company and each of the Corporate Subsidiaries was authorized to
enter into the partnership agreement of each Partnership Subsidiary for which
the Company, the Operating Partnership or such Corporate Subsidiary, as the case
may be, is the general partner.
(h) You shall have received on the Closing Date, an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Barack
Ferrazzano Kirschbaum Perlman & Nagelberg, special Illinois counsel for the
Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company or the Operating
Partnership, FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or
default in connection with the performance or observance of any obligation,
agreement, covenant or condition contained in any or all of (1) that certain
Unsecured Revolving Credit Agreement, dated as of June 30, 2000, among the
Operating Partnership, as Borrower, the Company, as General Partner, Bank One,
NA, UBS AG, Stamford Branch, Banc of America, N.A., and certain other banks, as
Lenders, Bank One, NA, as Administrative Agent, UBS Warburg LLC, as Syndication
Agent, Banc of America, N.A., as Documentation Agent and Wachovia Bank, N.A., as
Managing Agent; and (2) that certain Loan Agreement, dated as of December 29,
1995, by and between Nomura Asset Capital Corporation as Lender, and the
Mortgage Partnership, as Borrower (all such indebtedness collectively, the
"Credit Documents"), except in each case for defaults that, in the aggregate,
are not reasonably expected to have a Material Adverse Effect.
(ii) The execution and delivery of this Agreement and the Indenture and the
performance of the obligations set forth herein and therein by the Company and
the Operating Partnership did not and do not conflict with, or constitute a
breach or violation of, or default under: (A) any or all of the Credit
Documents; (B) any applicable law, rule or administrative regulation of the
federal government (or agency thereof) of the United States; or (C) any order or
administrative or court decree issued to or against, or concerning any or all of
the Company, the Operating Partnership, the Partnership Subsidiaries and the
Corporate Subsidiaries, of which, in the cases of clauses (B) and (C) above,
such counsel is aware, except in each case for conflicts, breaches, violations
or defaults that, in the aggregate, would not have a Material Adverse Effect.
20
(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.
The information in the 10-K under Item 7 "Management's Discussion and
Analysis of Financial Condition and Results of Operations--Mortgage Loans
Payable" (other than information relating to a certain mortgage loan made
available to First Industrial Financing Partnership, L.P. by Nomura Asset
Capital Corporation) to the extent that it constitutes statements of law,
descriptions of statutes, summaries of principal financing terms of Credit
Documents or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and presents fairly the information disclosed therein.
You shall have received on the Closing Date, an opinion (satisfactory to
you and Clifford Chance Rogers & Wells LLP ("CCRW")), dated the Closing Date, of
Cahill Gordon & Reindel, counsel for the Company, to the effect that:
We are of the opinion that, commencing with the Company's taxable year
ended December 31, 1994, the Company has been organized in conformity with
the requirements for qualification as a REIT under the Code and the
Company's method of operation, as described in the Registration Statement
and the Prospectus and as set forth in the Certificate has enabled it to
meet the requirements for qualification as a REIT under the Code and,
provided that the Company continues to satisfy the applicable asset
composition, source of income, shareholder diversification, distribution,
record keeping and other requirements of the Code necessary to qualify as a
REIT, it will continue to so qualify.
(i) On the date hereof, the Accountants shall have furnished to the
Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the Underwriters (and to
its counsel), confirming that they are independent public accountants with
respect to the Operating Partnership, the Company and the Subsidiaries as
required by the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Registration Statement
and the Prospectus and containing statements and information of the type
ordinarily included in accountants' "comfort letters" as set forth in the
AICPA's Statement on Auditing Standards 72. At the Closing Date, the Accountants
shall have furnished to the Underwriters a letter, dated the date of its
delivery, which shall confirm, on the basis of a review in accordance with the
procedures set forth in the letter from it, that nothing has come to its
attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to
the Closing Date, which would require any change in its letter dated the date
hereof if it were required to be dated and delivered at the Closing Date; (j)
You shall have received on the Closing Date an opinion, dated the Closing Date,
of CCRW, counsel for the Underwriters, as to the matters referred to in clauses
(i) (with respect to the Company only), (ii) (with respect to the Operating
Partnership and the first sentence only), (iv), (v), (vi), (vii) and (xii) of
Section 6(f) and in addition, CCRW shall make statements similar to those
contained in the second paragraph following Section 6(f)(xvii) hereto and shall
be entitled to rely on those persons described in the second paragraph following
Section 6(f)(xvii) hereto with respect to the matters described therein.
(k) At the Closing Date, the Securities shall have the ratings accorded by
any "nationally recognized statistical organization," as defined by the
Commission for purposes of Rule 436(g)(2) under the Act if and as specified in
Schedule I hereto, and the Operating Partnership shall have delivered to Credit
Suisse First Boston Corporation a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory Credit Suisse First Boston
Corporation, confirming that the Securities have such ratings. Since the date
hereof, there shall not have occurred a downgrading in the rating assigned to
the Securities or any of the Company's securities or the Operating Partnership's
other securities by any
21
such rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's securities or
the Operating Partnership's other securities.
(l) If the Registration Statement or an offering of Securities has been
filed with the NASD for review, the NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(m) At the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities, as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Operating Partnership and the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to CCRW, counsel for the Underwriters.
7. The Company and the Operating Partnership, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly for
use therein; provided, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement that
was the cause of such losses, claims, damages or liabilities, is eliminated or
remedied in the Prospectus (as amended or supplemented if the Company or the
Operating Partnership shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person, provided
further that the Company and the Operating Partnership shall have complied with
their obligations under Section 5(a) hereof with respect to the Prospectus (as
so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors and each person who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company and the Operating Partnership in
22
writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Section 4(b), the
only written information furnished by the Underwriters to the Company expressly
for use in the Registration Statement and the Prospectus is the information in
the chart and the third, sixth (with respect to the second and third sentences),
eighth, ninth (with respect to the last sentence) and tenth paragraphs under the
caption "Underwriting," and the second and third sentences under the caption
"Notice to Canadian Residents - Relationships with Affiliates of Certain
Underwriters" in the Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by
Credit Suisse First Boston Corporation and any such separate firm for the
Company, the Operating Partnership, their directors, their officers and such
control persons of the Company and the Operating Partnership or authorized
representatives shall be designated in writing by the Company or the Operating
Partnership. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement (i) includes an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or behalf of an indemnified party.
23
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable or insufficient to hold harmless an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Operating Partnership on the
one hand and the Underwriters on the other hand from the offering of the
Securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Operating Partnership on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Securities (before deducting expenses) received by the
Company and the Operating Partnership and the total underwriting discounts and
the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company and the
Operating Partnership on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Operating
Partnership on the one hand or by the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint,
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Operating Partnership and (c)
acceptance of and payment for any of the Securities.
24
8. Notwithstanding anything herein contained, this Agreement may be terminated
in your absolute discretion by notice given to the Operating Partnership, if
after the execution and delivery of this Agreement and prior to the Closing Date
(a) the Company and the Operating Partnership shall have failed, refused or been
unable, at or prior to the Closing Date, to perform any agreements on its part
to be performed hereunder, (b) any other conditions to the Underwriters'
obligations hereunder are not fulfilled, (c) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (d) trading of any securities
of or guaranteed by the Company and the Operating Partnership shall have been
suspended on any exchange or in any over-the-counter market, (e) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities; (f) any major disruption of
settlements of securities or clearance services in the United States; or (g)
there shall have occurred any outbreak or escalation of hostilities or act of
terrorism involving the United States or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, in
your judgment, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Operating Partnership for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Operating
Partnership. In any such case either you or the Company and the Operating
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company and the Operating
Partnership to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company and the Operating Partnership shall
be unable to perform their obligations under this Agreement or any condition of
the Underwriters' obligations cannot be fulfilled, the Company and the Operating
Partnership agree to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by the Underwriters in connection with this Agreement or the
offering of Securities contemplated hereunder and the Company and the Operating
Partnership shall then be under no further
25
liability to any Underwriters pursuant to this Agreement except as provided in
Sections 5(j) and 7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding upon the
Company, the Operating Partnership, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or by
Credit Suisse First Boston Corporation alone on behalf of the Underwriters, and
any such action taken by you jointly or by Credit Suisse First Boston
Corporation alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to the Underwriters, c/o Credit
Suisse First Boston Corporation, Eleven Madison Avenue, New York, New York
10010, Attention: Transaction Advisory Group, with a copy to Clifford Chance
Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166, Attention: Larry
P. Medvinsky, Esq. Notices to the Company shall be given to it at First
Industrial Realty Trust, Inc., 311 South Wacker Drive, Suite 4000, Chicago,
Illinois, 60606, Attention: John H. Clayton, Esq., with a copy to Cahill Gordon
& Reindel, 80 Pine Street, New York, New York, 10005, Attention: Gerald S.
Tanenbaum, Esq.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
[Signatures begin on following page.]
26
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
---------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer & Secretary
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Michael J. Havala
---------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer & Secretary
Accepted: April 4, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
FIRST UNION SECURITIES, INC.
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
UBS WARBURG LLC
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
By: CREDIT SUISSE FIRST BOSTON CORPORATION,
on behalf of itself and the several Underwriters
listed in Schedule II hereto
By: /s/ Eric Anderson
------------------------------------------------
Name: Eric Anderson
Title: Managing Director
27
SCHEDULE I
Underwriters: Credit Suisse First Boston Corporation
J.P. Morgan Securities Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Deutsche Bank Securities Inc.
First Union Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Smith Barney Inc.
UBS Warburg LLC
Underwriting Agreement dated: April 4, 2002
Registration Statement No.: (333-57992)
Title of Securities: $200,000,000 6.875% Notes due April 15, 2012 (the "2012
Notes"); and
$50,000,000 7.750% Notes due April 15, 2032 (the "2032
Notes")
Aggregate principal amount: $200,000,000 2012 Notes
$50,000,000 2032 Notes
Price to Public: 99.310% of the principal amount of the 2012 Notes, plus
accrued interest, if any, from April 15, 2002
98.660% of the principal amount of the 2032 Notes, plus
accrued interest, if any, from April 15, 2002
Purchase Price: 98.660% of the principal amount of the 2012 Notes, plus
accrued interest, if any, from April 15, 2002
97.785% of the principal amount of the 2032 Notes, plus
accrued interest, if any, from April 15, 2002
Indenture: Indenture dated as of May 13, 1997 and the Seventh
Supplemental Indenture to be dated as of April 15, 2002,
both between the Operating Partnership and the Trustee
Maturity: April 15, 2012 for the 2012 Notes.
April 15, 2032 for the 2032 Notes.
Interest Rate: 6.875% for the 2012 Notes.
7.750% for the 2032 Notes.
Interest Payment Dates: October 15 and April 15, commencing October 15, 2002 for
the 2012 Notes.
28
October 15 and April 15,
commencing October 15,
2002 for the 2032 Notes.
Redemption: At the option of the Operating Partnership at any time
Sinking Fund Provisions: None
Other Significant Provisions: As set forth in the Prospectus
Ratings: Standard & Poor's: "BBB"
Fitch Investor Service, L.P.: "BBB+"
Moody's Investors Service: "Baa2"
Closing Date and Time of
Delivery: The Closing will be held
at 9:00 A.M. (New York
City time) on April 15,
2002, with the
Securities being
delivered through the
book-entry facilities of
The Depository Trust
Company and made
available for checking
by DTC and the Trustee
at least 24 hours prior
to the Closing Date
Closing Location: Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
29
SCHEDULE II
Underwriters Principal Amount of Principal Amount of $50,000,000
$200,000,000 6.875% Notes due 7.750% Notes due April 15, 2032
April 15, 2012 to be Purchased to be Purchased
Credit Suisse First Boston Corporation $ 73,000,000 $18,250,000
J.P. Morgan Securities Inc. $ 73,000,000 $18,250,000
Banc of America Securities LLC $10,000,000 $2,500,000
Banc One Capital Markets, Inc. $10,000,000 $2,500,000
Deutsche Bank Securities Inc. $10,000,000 $2,500,000
First Union Securities, Inc. $6,000,000 $1,500,000
Merrill Lynch, Pierce, Fenner & Smith $6,000,000 $1,500,000
Incorporated
Salomon Smith Barney Inc. $6,000,000 $1,500,000
UBS Warburg LLC $6,000,000 $1,500,000
----------- ----------
Total $200,000,000 $50,000,000
30
SCHEDULE III
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
- ------ ------------
First Industrial, L.P. Colorado
Florida
Georgia*
Illinois*
Indiana*
Iowa
Maryland
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Realty Trust, Inc. Florida
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
Oregon
Utah
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
- --------
* Denotes jurisdictions on which counsel is opining.
31
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Georgia
Illinois
Iowa
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation Indiana
First Industrial Development Services, Inc. None
32