Execution Version
First Industrial, L.P.
$125,000,000 5.25% Senior Notes due 2009
Underwriting Agreement
June 9, 2004
WACHOVIA CAPITAL MARKETS, LLC
CREDIT SUISSE FIRST BOSTON LLC
J.P. MORGAN SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
RAYMOND JAMES & ASSOCIATES, INC.
BB&T CAPITAL MARKETS, A DIVISION OF SCOTT & STRINGFELLOW, INC.
COMMERZBANK CAPITAL MARKETS CORP.
c/o Wachovia Capital Markets, LLC
Debt Capital Markets
301 South College Street
NC0600
Charlotte, NC 28288
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 I hereto (collectively, the "Underwriters"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), each as specified in Schedule I 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 II 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 "Base Prospectus." The Base Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Base Prospectus, 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
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filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Registration Statement,
the Base Prospectus, any preliminary prospectus or the Prospectus, as the case
may be; and any reference to "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Base Prospectus, any preliminary prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Registration Statement, the Base Prospectus, any preliminary prospectus or the
Prospectus, as the case may be, which are deemed to be incorporated by reference
therein.
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. 9
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 I hereto at the purchase
price set forth in Schedule II hereto plus accrued interest, if any, from the
date specified in Schedule II 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 II hereto in the section entitled "Closing Date and
Time of Delivery" (or at such other time and place on the same or such other
date, not later than the third 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.
(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
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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;
(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"), First Industrial
Pennsylvania, L.P. ("FIP"), First Industrial Harrisburg, L.P. ("FIH") and
First Industrial Indianapolis, L.P. ("FII") (the Financing Partnership,
Securities, L.P., the Mortgage Partnership, FIH, FII and FIP are referred
to collectively herein as the "Partnership Subsidiaries") has been duly
organized and is validly existing as a limited partnership in good standing
under and by virtue of the laws of its jurisdiction of organization. First
Industrial Alrai, LLC ("FIA") has been duly organized and is validly
existing as a limited liability company in good standing under and by
virtue of the laws of its jurisdiction of organization. Each of First
Industrial Securities Corporation ("FISC"), First Industrial Indianapolis
Corporation ("FIIC"), First Industrial Finance Corporation ("FIFC"), First
Industrial Mortgage Corporation ("FIMC"), First Industrial Development
Services, Inc. ("FIDSI") and First Industrial Pennsylvania Corporation
("FIPC"), (FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to
collectively herein as the "Corporate Subsidiaries," and the Partnership
Subsidiaries and the Corporate Subsidiaries are referred to herein
collectively as the "Subsidiaries" or individually as a "Subsidiary"), has
been duly organized and is validly existing as a corporation in good
standing under and by virtue of the laws of its jurisdiction of
incorporation. Other than the Corporate Subsidiaries and the Partnership
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a "significant subsidiary"
under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The
Company is the sole general partner of the Operating Partnership. FIFC is a
wholly-owned subsidiary of the Company and is the sole general partner of
the Financing Partnership. FIM is a wholly-owned subsidiary of the Company
and is the sole general partner of the Mortgage Partnership. FISC is a
wholly-owned subsidiary of the Company and is the sole general partner of
Securities, L.P. The Operating Partnership and FISC are the only limited
partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the
Company and is the sole general partner of FIP. FIIC is a wholly-owned
subsidiary of the Company and is the sole general partner of FII. FIHC is a
wholly-owned subsidiary of the Company and is the sole general partner of
FIH. FIDSI is a wholly-owned subsidiary of the Operating Partnership. The
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Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Operating Partnership, the
Company and each of the Subsidiaries has, and at the Closing Date (as
hereinafter defined) will have, full corporate, partnership or limited
liability company power and authority, as the case may be, to conduct all
the activities conducted by it, to own, lease or operate all the properties
and other assets owned, leased or operated by it and to conduct its
business in which it engages or proposes to engage as described in the
Prospectus and the transactions contemplated hereby and thereby. The
Company and each of the Corporate Subsidiaries is, and at the Closing Date
will be, duly qualified or registered to do business and in good standing
as a foreign corporation in all jurisdictions in which the nature of the
activities conducted by it or the character of the properties and assets
owned, leased or operated by it makes such qualification or registration
necessary, except where failure to obtain such qualifications or
registration will not have a material adverse effect on (i) the condition,
financial or otherwise, or the earnings, assets or business affairs or
prospects of the Operating Partnership, Company and their Subsidiaries,
taken as a whole or on the 825 in service properties owned, directly or
indirectly, by the Company as of March 31, 2004 (the "Properties") taken as
a whole, (ii) the issuance, validity or enforceability of the Securities or
(iii) the consummation of any of the transactions contemplated by this
Agreement, the Indenture and the Securities (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,
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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 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 Operating Partnership or the Company, 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 Operating Partnership, the Company 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
Operating Partnership or the Company, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with
the loan agreements of the Operating Partnership, the Company 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
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schedules) of the Company, the Operating Partnership and the Partnership
Subsidiaries or any predecessor of the Company and/or the Operating
Partnership and the Partnership Subsidiaries are required by the Securities
Act or the Exchange Act to be included in the Registration Statement and
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 Operating Partnership,
the Company 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, the Prospectus and
this Agreement, any change in the capitalization, long term or short term
debt or in the capital stock or equity of each of the Operating
Partnership, 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 Registration Statement, the
Prospectus and this Agreement, 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, and any distributions on
redemption of, the shares of the Company's (a) Depositary Shares each
representing 1/100 of a share of 85/8% Series C Cumulative Preferred Stock
(the "Series C Preferred Stock"), (b) Depositary Shares each representing
1/100 of a share of 6.236% Series F Cumulative Preferred Stock (the "Series
F Preferred Stock"), (c) Depositary Shares each representing 1/100 of a
share of 7.236% Series G Cumulative Preferred Stock (the "Series G
Preferred Stock") and (d) Depositary Shares each representing 1/100 of a
share of Series H Cumulative Preferred Stock having a variable dividend
rate which is initially London Interbank Offered Rate (LIBOR) plus 1.65%
through August 31, 2004 (the "Series H 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 Operating Partnership or the Company,
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;
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(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
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 Operating Partnership and the Company have full corporate or
partnership power, as the case may be, to enter into each of this
Agreement, the Indenture and the Securities. This Agreement, the Indenture
and the Securities have been duly and validly authorized, executed and
delivered by the Operating Partnership and the Company, constitutes a valid
and binding agreement of the Operating Partnership and the Company, 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, the
Indenture and the Securities and the consummation of the transactions
contemplated hereby, and compliance by each of the Operating Partnership,
the Company and the Subsidiaries with its obligations hereunder to the
extent each is a party thereto, will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets or
properties of the Operating Partnership, the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, or give any other party a right to terminate any of its obligations
under, or result in the acceleration of any obligation under, the
certificate of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other
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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 and the
Prospectus, or such as secure the loan facilities of the Operating
Partnership, the Company and the Subsidiaries, or would not result in a
Material Adverse Effect;
(p) This Agreement has been duly authorized by the Operating
Partnership and, at the Closing Date, will have been duly executed and
delivered by the Operating Partnership, and, assuming due authorization,
execution and delivery of this Agreement by the other respective parties
thereto, this Agreement will, at the Closing Date, constitute a valid and
binding obligation of the Operating Partnership, enforceable against the
Operating Partnership in accordance with their respective terms (except to
the extent that enforcement thereof may be limited by (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any
proceeding therefor may be brought);
(q) To the knowledge of the Operating Partnership and the Company: (i)
no lessee of any portion of the Properties is in default under any of the
leases governing such Properties and there is no event which, but for the
passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except in each case such defaults that
would not have a Material Adverse Effect; (ii) the current use and
occupancy of each of the Properties complies in all material respects with
all applicable codes and zoning laws and regulations, except for such
failures to comply which would not individually or in the aggregate have a
Material Adverse Effect; and (iii) there is no pending or threatened
condemnation, zoning change, environmental or other proceeding or action
that will in any material respect affect the size of, use of, improvements
on, construction on, or access to the Properties except such proceedings or
actions that would not have a Material Adverse Effect;
(r) The Operating Partnership, the Company and the Partnership
Subsidiaries have property, title, casualty and liability insurance in
favor of the Operating Partnership, the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Operating Partnership, the Company and the Partnership
Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks;
(s) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of
9
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, 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;
10
and "Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or other
receptacles containing or previously containing and containing a residue of
any Hazardous Substance;
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was
employed for such purpose on a contingent basis or has any substantial
interest in the Operating Partnership, the Company or any of the
Subsidiaries, and none of them nor any of their directors, officers or
employees is connected with the Operating Partnership, the Company or any
of the Subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee;
(t) The Operating Partnership, the Company 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 ended December 31, 1994. The Operating Partnership, the Company and
the Subsidiaries intend to continue to be organized and operate so that the
Company shall qualify as a REIT for the foreseeable future, unless the
Company's board of trustees determines that it is no longer in the best
interests of the Company to be so qualified;
(u) There is no material document or contract of a character required
to be described or referred to in the Registration Statement and 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;
(v) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
is any such dispute threatened which would be Material;
(w) The Operating Partnership, the Company and the Subsidiaries own,
or are licensed or otherwise have the full exclusive right to use, all
material trademarks and trade names which are used in or necessary for the
conduct of their respective businesses as described in the Prospectus. To
the knowledge of the Operating Partnership or the Company, no claims have
been asserted by any person to the use of any such trademarks or trade
names or challenging or questioning the validity or effectiveness of any
such trademark or trade name. The use, in connection with the business and
operations of the Operating Partnership, the Company and the Subsidiaries,
of such trademarks and trade names does not, to the Company's or the
Operating Partnership's knowledge, infringe on the rights of any person;
(x) Each of the Operating Partnership, the Company and the
Subsidiaries has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
the failure to so file would not result in a Material Adverse Effect) and
has paid all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing would
otherwise be delinquent, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect;
11
(y) The Operating Partnership and each of the Partnership Subsidiaries
is properly treated as a partnership for U.S. federal income tax purposes
and not as a "publicly traded partnership;"
(z) No relationship, direct or indirect, exists between or among the
Operating Partnership, the Company or the Subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of the
Operating Partnership, the Company or the Subsidiaries on the other hand,
which is required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
(aa) The Company 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);
(bb) The Operating Partnership maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets, financial and corporate books and records is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(cc) Any certificate or other document signed by any officer or
authorized representative of the Operating Partnership, the Company or any
Subsidiary, and delivered to the Underwriters or to counsel for the
Underwriters in connection with the sale of the Securities shall be deemed
a representation and warranty by such entity or person, as the case may be,
to each Underwriter as to the matters covered thereby;
(dd) The Securities have an investment grade rating from one or more
nationally recognized statistical rating organizations as specified in
Schedule II hereto;
(ee) Subsequent to the dates as of which information is given in the
most recent Form 10-Q of the Company and except as disclosed in the
Prospectus, the Operating Partnership, the Company and their subsidiaries
have not incurred any liability or obligation, direct or contingent, nor
entered into any transaction not in the ordinary course of business that,
in either case, is material to the Operating Partnership, the Company and
their subsidiaries, taken as a whole;
(ff) None of the Operating Partnership, the Company, nor any of their
affiliates, as such term is defined in Rule 501(b) under the Securities Act
(each, an "Affiliate"), has, directly or indirectly, solicited any offer to
buy, sold or offered to sell or otherwise negotiated in respect of, or
shall solicit any offer to buy or offer to sell or otherwise negotiate in
respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of the
Securities in a manner that would require the Securities to be registered
under the Securities Act;
12
(gg) The Securities resold pursuant to this Agreement and the
Indenture shall be in the respective forms previously delivered to the
Underwriters; and
(hh) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been instituted, or to the
knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the Prospectus or any preliminary
prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
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 Base 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
13
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
conformed 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;
(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
14
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 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 when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
the Securities, to file all documents required to be filed by it with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act;
(i) The 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;
15
(j) 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;
(k) 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";
(l) 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;
(m) 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;
(n) To take all reasonable action necessary to enable Standard &
Poor's Corporation ("S&P") and Moody's Investors Service, Inc ("Moody's")
or any other nationally recognized rating organization to provide their
respective credit ratings of the Securities, as specified in Schedule II
hereto;
(o) 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
(p) 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 satisfaction of each of the following
conditions:
(a) the Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Securities 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;
16
(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
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 Property
before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a
certificate signed by the Chief Executive Officer of the Company and the
Chief Financial Officer of the Company, in their capacities as officers of
the Company, on behalf of the Company for itself and as general partner of
the Operating Partnership, satisfactory to you to the effect set forth in
subsections (b) 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, LLP counsel for the Company and
the Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule III hereto, and
each Corporate Subsidiary is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule III hereto with
respect to it, in each case except where the failure to obtain such
qualification or registration will not have a Material Adverse Effect.
(ii) The Operating Partnership and each of the Partnership
Subsidiaries has been duly formed and is validly existing as a limited
partnership in good standing under the laws of its state of
organization. The Operating Partnership and each of the Partnership
Subsidiaries has all requisite partnership power and authority to own,
lease
17
and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case,
as described in the Registration Statement and the Prospectus, and the
Operating Partnership has the partnership power to enter into and
perform its obligations under this Agreement, the Indenture and the
Securities. The Operating Partnership and each of the Partnership
Subsidiaries is duly qualified or registered as a foreign partnership
and is in good standing in each jurisdiction identified with an
asterisk in Schedule III hereto with respect to it, 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 Operating
Partnership, the Company 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 No. 333-57992, declared effective on August 31,
2001, each of the Company's and the Operating Partnership's Annual
Report on Form 10-K for the year ended December 31, 2003 or the
Company's and the Operating Partnership's Quarterly Report on Form
10-Q for the quarter ended March 31, 2004, in each case as amended, if
applicable, to which such entity is a party or by which such entity
may be bound, or to which any of the property or assets of such entity
or any Property 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.
(iv) This Agreement was duly and validly authorized, executed and
delivered by each of the Operating Partnership and the Company.
(v) The issuance of the Securities has been duly authorized by
the Company on behalf of the Operating Partnership and assuming
authentication by the Trustee in accordance with the terms of the
Indenture, and delivery to, and payment by, the Underwriters in
accordance with the terms of this Agreement, such Securities
constitute valid and legally binding obligations of the Operating
Partnership entitled to the benefits provided for in the Indenture,
and 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
18
considered in a proceeding at equity or law); and the Indenture has
been duly qualified under the TIA.
(vii) 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.
(viii) The execution and delivery of this Agreement, the
Indenture and the Securities, the issuance and sale of the Securities
and the performance by the Operating Partnership and the Company of
their respective obligations under the Securities, this Agreement and
the Indenture, to the extent they are a party thereto, 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 as of the date of such opinion) listed as an exhibit to each of
the Company's and the Operating Partnership's Annual Report on Form
10-K for the year ended December 31, 2003, the Company's and the
Operating Partnership's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2004, the Company's Current Report on Form 8-K filed
on May 27, 2004, or the Operating Partnership's Form 8-K filed on May
27, 2004, in each case as amended, if applicable, to which any such
entity is a party or by which it or any of them or any of their
respective properties or other assets may be bound or subject and of
which such counsel is aware (it being understood that (i) such counsel
need express no opinion with respect to matters relating to any
contract, indenture, mortgage, loan agreement, note lease, joint
venture or partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
management or financing of any property or assets of such entity or
any other Property and (ii) such counsel may assume compliance with
the financial covenants contained in any such document); (2) the
certificate of limited partnership or partnership agreement, as the
case may be, of the Operating Partnership, Securities, L.P. and the
Financing Partnership or the articles of incorporation or by-laws, as
the case may be, of the Company, FIFC or FISC; or (3) any applicable
law, rule or administrative regulation, except in each case for
conflicts, breaches, violations or defaults that in the aggregate are
not reasonably expected to have a Material Adverse Effect.
(ix) 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, the
corporate financing rules and conflict of interest rules of the NASD,
the partnership agreement, state securities, Blue Sky or real estate
syndication laws, or such as have been received prior to the date of
such opinion.
(x) 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
19
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.
(xi) 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, assuming the Underwriters acquired such Securities in good
faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities.
(xii) The information in the Prospectus Supplement under
"Description of Notes," "Certain United States Federal Income Tax
Considerations," and in the Prospectus under "Risk Factors,"
"Description of Debt Securities," "Restrictions on Transfers of
Capital Stock" and "Federal Income Tax Considerations" (as modified by
the information in the Prospectus Supplement), to the extent that it
constitutes statements of law, descriptions of statutes, rules or
regulations, or summaries of documents or legal conclusions, has been
reviewed by us and is correct in all material respects and presents
fairly the information required to be disclosed therein.
(xiii) To such counsel's knowledge, there is no document or
contract of a character required to be described or referred to in the
Registration Statement and the Prospectus or the documents
incorporated by reference therein or filed as exhibits to the Form
10-K or Form 10-Q thereto by the Securities Act or Exchange Act other
than those described or referred to therein or filed as exhibits
thereto, and the descriptions thereof or references thereto are
accurate in all material respects.
(xiv) 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 to general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(xv) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on
Form S-3 under the Securities Act.
(xvi) None of the Company or the Subsidiaries is required to be
registered as an investment company under the 1940 Act, as amended.
(xvii) Commencing with the Company's taxable year ended December
31, 1994, the Company has been organized and operated in conformity
with the requirements for qualification and taxation as a REIT under
the Code and the Company's current and proposed method of operation
(as represented by the Company to us in a written certificate) will
enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code.
20
In addition, Cahill Gordon & Reindel LLP shall state that they have
participated in conferences with officers and other representatives of the
Operating Partnership, the Company and the Subsidiaries, representatives of the
independent public accountants for the Operating Partnership, the Company 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 and the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement, including the documents
incorporated therein by reference, at the time such Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the Prospectus, as of its
date or at the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, including the notes and
schedules thereto, or any other financial or statistical data that is found in
or derived from the internal accounting records of the Operating Partnership,
the Company 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 Operating Partnership, the Company,
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
Operating Partnership, the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries to do business in any state or jurisdiction, upon
certificates of appropriate government officials or opinions of counsel in such
jurisdictions. Counsel need express no opinion (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 the Underwriters 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 Registration
Statement and the Prospectus, and the Company has the corporate power
and authority to enter into and perform their obligations under this
Agreement and the Indenture.
21
(iii) The Company has been authorized, in its capacity as general
partner of the Operating Partnership, to cause the Operating
Partnership to issue the Securities.
(iv) Each of this Agreement and the Indenture was duly and
validly authorized by the Company, on behalf of itself and the
Operating Partnership.
(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 the case of clause (B) above 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 Operating Partnership, the Company 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 the Underwriters 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 Operating
Partnership or the Company, FIMC, the Mortgage Partnership, FIPC or
FIP is in violation of, or default in connection with the performance
or observance of any obligation, agreement, covenant or condition
contained in any or all of that certain Unsecured Revolving Credit
Facility, amended and restated and dated as of June 11, 2004, among
the Operating Partnership, as Borrower, the Company, as Guarantor and
General Partner, Bank One, NA, and certain other banks as lenders,
Banc One Capital Markets, Inc. as Lead Arranger and Sole Book Runner
and Bank One, N.A. as Administrative Agent (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.
22
(ii) The execution and delivery of this Agreement and the
Indenture and the performance of the obligations and consummation of
transactions set forth herein and therein by the Operating Partnership
and the Company 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 Operating Partnership, the Company,
the Partnership Subsidiaries and the Corporate Subsidiaries, of which,
in the cases of clauses (B) and (C) above, such counsel is aware,
except in each case for conflicts, breaches, violations or defaults
that, in the aggregate, would not have a Material Adverse Effect.
(iii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened that do, or are likely
to, have a Material Adverse Effect.
(iv) The information in the 10-K under Item 7 "Management's
Discussion and Analysis of Financial Condition and Results of
Operations--Mortgage Loans Payable" (other than information relating
to a certain mortgage loan made available to First Industrial
Financing Partnership, L.P. by Nomura Asset Capital Corporation) to
the extent that it constitutes statements of law, descriptions of
statutes, summaries of principal financing terms of Credit Documents
or legal conclusions, has been reviewed by such counsel and is correct
in all material respects and presents fairly the information disclosed
therein.
(i) On the date hereof, the Accountants shall have furnished to the
Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the Underwriters
(and to their counsel), confirming that they are independent public
accountants with respect to the Company, the Operating Partnership and the
Subsidiaries as required by the Securities Act and with respect to the
financial and other statistical and numerical information contained in the
Registration Statement and the Prospectus and containing statements and
information of the type ordinarily included in accountants" "comfort
letters" as set forth in the AICPA's Statement on Auditing Standards 72. At
the Closing Date, the Accountants shall have furnished to the Underwriters
a letter, dated the date of its delivery, which shall confirm, on the basis
of a review in accordance with the procedures set forth in the letter from
it, that nothing has come to its attention during the period from the date
of the letter referred to in the prior sentence to a date (specified in the
letter) not more than five days prior to the Closing Date, which would
require any change in its letter dated the date hereof if it were required
to be dated and delivered at the Closing Date.
(j) The Underwriters shall have received on the Closing Date an
opinion, dated the Closing Date, of Clifford Chance US LLP ("CC"), counsel
for the Underwriters, in form and substance reasonably satisfactory to the
Underwriters.
In giving its opinion, such counsel may rely (A) 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 and (B) as to the good standing and
qualification of the Company, the Corporate Subsidiaries and the
Partnership Subsidiaries to do business in any sate or jurisdiction, upon
certificates of appropriate governmental officials or opinions of counsel
in such jurisdictions.
23
(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
Securities Act if and as specified in Schedule II hereto, and the Operating
Partnership shall deliver to the Underwriters a letter, dated as of such
date, from each such rating organization, or other evidence satisfactory to
the Underwriters, confirming that the Securities have such ratings. Since
the date hereof, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's securities or the
Operating Partnership's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of the Securities or any of the Company's securities or the
Operating Partnership's other securities.
(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 CC, counsel for the Underwriters.
7. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Underwriter, its officers and directors, 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 and the Prospectus (as amended or supplemented if the Company or the
Operating Partnership shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages 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
24
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). The foregoing indemnity agreement shall be in addition to any
liability which the Company and the Operating Partnership may otherwise have.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors and each person who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company and the Operating Partnership in writing by such
Underwriter through you expressly for use in the Registration Statement and the
Prospectus any amendment or supplement thereto. For purposes of this Section 7,
the only written information furnished by the Underwriters to the Operating
Partnership expressly for use in the Registration Statement and the Prospectus
is the information in the second, sixth, seventh and ninth paragraphs after the
table under the caption "Underwriting" and the final paragraph under the caption
"Notice to Canadian Residents."
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
Wachovia Capital Markets, LLC 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
25
by such Indemnifying Person pursuant to this paragraph. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement (i) includes
an unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or behalf of an indemnified party. In no event shall any Indemnifying Person
have any liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to any pending or
threatened action or claim effected without its prior written consent.
If the indemnification provided for in the first and second paragraphs of
this Section 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 I hereto, and not joint.
26
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.
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 Nasdaq
National Market, 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) any moratorium
on commercial banking activities shall have been declared by either Federal or
New York State authorities; (f) any material disruption of settlements of
securities, payment 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,
singly or together with any other event specified in clauses (c) through (f) of
this Section 8, 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 Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule I hereto bears to the 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 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 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.
27
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company and the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company and the Operating
Partnership shall be unable to perform their obligations under this Agreement or
any condition of the Underwriters" obligations cannot be fulfilled, the Company
and the Operating Partnership agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 5(j) and
7 of this Agreement.
11. In the event of termination of this Agreement, the provisions of
Sections 5(j) and 7 remain operative and in full force and effect.
12. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
Any action by the Underwriters hereunder may be taken by you jointly or by
Wachovia Capital Markets, LLC alone on behalf of the Underwriters, and any such
action taken by you jointly or by Wachovia Capital Markets, LLC 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 Wachovia Capital Markets,
LLC, Debt Capital Markets, 301 South College Street, NC0600, Charlotte, NC
28288, Attention: Investment Grade Syndicate Desk, with a copy to Clifford
Chance US LLP, 200 Park Avenue, New York, New York 10166, Attention: Larry P.
Medvinsky, Esq. Notices to the Company and the Operating Partnership shall be
given to 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 LLP, 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 on following page.]
28
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
-----------------------------------------
Name: Michael J. Havala
Title: CFO
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: CFO
Accepted: June 9, 2004
WACHOVIA CAPITAL MARKETS, LLC
CREDIT SUISSE FIRST BOSTON LLC
J.P. MORGAN SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
RAYMOND JAMES & ASSOCIATES, INC.
BB&T CAPITAL MARKETS, A DIVISION OF SCOTT & STRINGFELLOW, INC.
COMMERZBANK CAPITAL MARKETS CORP.
By: WACHOVIA CAPITAL MARKETS, LLC,
on behalf of itself and the several Underwriters
listed in Schedule I hereto
By: /s/ Teresa Hee
------------------------------------------
Name: Teresa Hee
Title: Director
29
SCHEDULE I
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Wachovia Capital Markets, LLC $43,750,000
Credit Suisse First Boston LLC $43,750,000
J.P. Morgan Securities Inc. $23,750,000
Deutsche Bank Securities Inc. $6,250,000
Raymond James & Associates, Inc. $2,500,000
BB&T Capital Markets, a division of $2,500,000
Scott & Stringfellow, Inc.
Commerzbank Capital Markets Corp. $2,500,000
----------
Total $125,000,000
============
I-1
SCHEDULE II
Underwriters: Wachovia Capital Markets, LLC
Credit Suisse First Boston LLC
J.P. Morgan Securities
Inc.
Deutsche Bank Securities Inc.
Raymond James & Associates, Inc.
BB&T Capital Markets, a division of Scott & Stringfellow, Inc.
Commerzbank Capital Markets Corp.
Registration Statement No.: 333-57992
Underwriting Agreement dated: June 9, 2004
Title of Securities: 5.25% Senior Notes due 2009
Aggregate principal amount: $125,000,000
Price to Public: 99.826% of the principal amount of the Securities, plus
accrued interest, if any, from June 14, 2004
Purchase Price: 99.226% of the principal amount of the Securities, plus
accrued interest, if any, from June 14, 2004
Indenture: Indenture dated as of May 13, 1997 and the Ninth Supplemental
Indenture to be dated as of June 14, 2004, both between the
Operating Partnership and the Trustee
Maturity: June 15, 2009
Interest Rate: 5.25%
Interest Payment Dates: June 15 and December 15, commencing December 15, 2004
Redemption: At the option of the Operating Partnership, in whole or in
part, at any time
Sinking Fund Provisions: None
Other Significant Provisions: As set forth in the Registration Statement and the Prospectus
II-1
Ratings: Standard & Poor's: "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
June 14, 2004, with the Securities being delivered through
the book-entry facilities of The Depository Trust Company and
made available for checking by DTC at least 24 hours prior to
the Closing Date
Closing Location: Clifford Chance US LLP
31 West 52nd Street
New York, New York 10019
II-2
SCHEDULE III
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
-----------------------------------------------------------
ENTITY: JURISDICTION
- ------- ------------
First Industrial, L.P. Arizona
California
Connecticut
Colorado
Florida
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota*
Missouri
New Jersey*
New York*
North Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
Utah
Wisconsin
- ----------
* Denotes jurisdictions on which counsel is opining.
III-1
First Industrial Financing Partnership, L.P. Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
New Jersey
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Acquisitions, Inc. California
Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Pennsylvania, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Securities Corporation Illinois*
Michigan*
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Indianapolis Corporation Indiana
First Industrial Indianapolis, L.P. Indiana
III-2
FI Development Services Corporation Florida
Illinois
Maryland
Wisconsin
First Industrial Realty Trust, Inc. Florida
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
North Carolina
Oregon
Utah
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Development Services, Inc. Arizona
California
Colorado
Florida
Georgia
Illinois
Indiana
Louisiana
Maryland
Michigan
Minnesota
Missouri
New York
North Carolina
Ohio
Pennsylvania
Tennessee
Texas
III-3