Exhibit 1.1
EXECUTION COPY
CONTROLLED EQUITY OFFERINGSM
SALES AGREEMENT
September 16, 2004
CANTOR FITZGERALD & CO.
135 East 57th Street
New York, NY 10022
Dear Sirs/Ladies:
First Industrial Realty Trust, Inc., a Maryland corporation (the "Company")
and First Industrial, L.P., a Delaware limited partnership (the "Operating
Partnership"), each confirm its agreement (this "Agreement") with Cantor
Fitzgerald & Co. ("CF&Co."), as follows:
1. Issuance and Sale of Shares. The Company agrees that, from time to time
during the term of this Agreement, on the terms and subject to the conditions
set forth herein, it may issue and sell through CF&Co., acting as agent and/or
principal, up to 3,900,000 shares ("Shares") of the Company's common stock,
$0.01 par value ("Common Stock"); provided, however, that in no event shall the
aggregate market value of the Shares sold in an "at the market" offering (as
defined in Section 3 below) exceed 10% of the aggregate market value of the
Company's outstanding voting stock held by non-affiliates of the Company
(calculated as of a date within 60 days prior to the date of filing of the
Registration Statement). Notwithstanding anything to the contrary contained
herein and provided that CF&Co. complies with the Placement Notice (as herein
defined), the parties hereto agree that compliance with the limitations set
forth in this Section 1 on the number and aggregate market value of Shares
issued and sold under this Agreement shall be the sole responsibility of the
Company, and CF&Co. shall have no obligation in connection with such compliance.
The issuance and sale of Shares through CF&Co. will be effected pursuant to the
Registration Statement (as defined below) filed by the Company and declared
effective by the Securities and Exchange Commission (the "Commission").
The Company and the Operating Partnership have prepared and filed with 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 on Form S-3 (File
No. 333-117842), relating to certain securities (the "Shelf Securities") to be
issued from time to time by the Company or the Operating Partnership, as the
case may be. The Company also has filed 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 Shares (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 Shares is
hereinafter referred to as the "Base Prospectus." The Base Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Shares in the form first used to confirm sales of the Shares 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 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. For purposes of this
Agreement, all references to the Registration Statement, the Prospectus, or to
any amendment or supplement thereto shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering Analysis and
Retrieval System ("EDGAR").
2. Placements. Each time that the Company wishes to issue and sell Shares
hereunder (each, a "Placement"), it will notify CF&Co. of the proposed terms of
such Placement. If CF&Co. wishes to accept such proposed terms (which it may
decline to do for any reason in its sole discretion) or, following discussions
with the Company, wishes to accept amended terms, CF&Co. will, prior to 4:30
p.m., New York time, on the Business Day next following the Business Day that
the notice is received by CF&Co., issue to the Company a written notice (a
"Placement Notice"), the form of which is attached hereto as Schedule 1, setting
forth the terms that CF&Co. is willing to accept, including without limitation
the number of Shares ("Placement Shares") to be issued, the manner(s) in which
sales are to be made, the date or dates on which such sales are anticipated to
be made, any minimum price below which sales may not be made, and the capacity
in which CF&Co. may act in selling Shares hereunder (as principal, agent or
both). The amount of compensation to be paid by the Company to CF&Co. shall be
two percent (2%) of the gross proceeds of any sale of Shares hereunder. The
terms set forth in a Placement Notice will not be binding on the Company or
CF&Co. unless and until the Company delivers written notice of its acceptance of
all of the terms of such Placement Notice (an "Acceptance"), the form of which
is included in Schedule 1 hereto; provided, however, that neither the Company
nor CF&Co. will be bound by the terms of a Placement Notice unless the Company
delivers to CF&Co. an Acceptance with respect thereto prior to 4:30 p.m. (New
York time) on the Business Day (as defined below) following the Business Day on
which such Placement Notice is delivered to the Company. It is expressly
acknowledged and agreed that neither the Company nor CF&Co. will have any
obligation whatsoever with respect to a Placement or any Placement Shares unless
and until CF&Co. delivers a Placement Notice to the Company and the Company
accepts such Placement Notice by means of an Acceptance, and then only upon the
terms specified therein and herein. In the event of a conflict between the terms
of this Agreement and the terms of a Placement Notice, the terms of the
Placement Notice will control.
3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions
of this Agreement, provided that an Acceptance has been delivered to CF&Co. and
unless the sale of the Placement Shares described therein has been suspended or
otherwise terminated in accordance with the terms of this Agreement, CF&Co., for
the period specified in the Placement Notice, will use its commercially
reasonable efforts consistent with its normal trading and sales practices and
the Placement Notice to sell such Placement Shares up to the amount specified
in, and otherwise in accordance with the terms of, such Placement Notice. CF&Co.
will provide written confirmation to the Company no later than the opening of
the Trading Day next following the Trading Day on which it has made sales of
Placement Shares hereunder setting forth the number of Placement Shares sold on
such day, the compensation payable by the Company to CF&Co. with respect to such
sales, and the Net Proceeds (as defined below) payable to the Company, with an
itemization of the deductions made by CF&Co. (as set forth in Section 5(a)) from
the gross proceeds that it receives from such sales. After consultation to the
Company and subject to the terms of the Placement Notice, CF&Co. may sell
Placement Shares by any
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method permitted by law deemed to be an "at the market" offering as defined in
Rule 415 of the Securities Act, including without limitation sales made directly
on the New York Stock Exchange (the "Exchange"), on any other existing trading
market for the Common Stock or to or through a market maker. After consultation
with the Company and subject to the terms of the Placement Notice, CF&Co. may
also sell Placement Shares in privately negotiated transactions. The Company
acknowledges and agrees that (i) there can be no assurance that CF&Co. will be
successful in selling Placement Shares, and (ii) CF&Co. will incur no liability
or obligation to the Company if it does not sell Placement Shares for any reason
other than a failure by CF&Co. to use its commercially reasonable efforts
consistent with its normal trading and sales practices and the Placement Notice
to sell such Placement Shares as required under this Section 3. For the purposes
hereof, "Trading Day" means any day on which securities are purchased and sold
on the principal market on which the Common Stock is listed or quoted.
4. Suspension of Sales. The Company or CF&Co. may, upon notice to the other
party in writing or by telephone (confirmed immediately by verifiable facsimile
transmission), suspend any sale of Placement Shares; provided, however, that
such suspension shall not affect or impair either party's obligations with
respect to any Placement Shares sold hereunder prior to the receipt of such
notice. Except as set forth in Section 12, the parties agree that no such notice
shall be effective against the other party unless it is made to one of the
individuals named on Schedule 2 hereto, as such Schedule may be amended from
time to time.
5. Settlement.
(a) Settlement of Placement Shares. Unless otherwise specified in the
applicable Placement Notice, settlement for sales of Placement Shares will occur
on the third (3rd) Business Day (as herein defined) (or such earlier day as is
industry practice for regular-way trading) following the date on which such
sales are made (each a "Settlement Date"). For purposes of this Agreement,
"Business Day" shall mean any day on which the Exchange and commercial banks in
the city of New York are open for business. The amount of proceeds to be
delivered to the Company on a Settlement Date against the receipt of the
Placement Shares sold ("Net Proceeds") will be equal to the aggregate sales
price at which such Placement Shares were sold plus payments to be made pursuant
to the last sentence of Section 6(i), if any, after deduction for (i) CF&Co.'s
commission or underwriting discount for such sales payable by the Company
pursuant to Section 2 hereof, (ii) any other amounts due and payable by the
Company to CF&Co. hereunder pursuant to Section 6(i) hereof, and (iii) any
transaction fees imposed by any governmental or self-regulatory organization in
respect of such sales.
(b) Delivery of Shares. On or before each Settlement Date, the Company
will, or will cause its transfer agent to, electronically transfer the Placement
Shares being sold by crediting CF&Co.'s or its designee's account at The
Depository Trust Company through its Deposit Withdrawal Agent Commission System
or by such other means of delivery as may be mutually agreed upon by the parties
hereto and, upon receipt of such Placement Shares, which in all cases shall be
freely tradable, transferable, registered shares in good deliverable form,
CF&Co. will deliver the related Net Proceeds in same day funds delivered to an
account designated by the Company prior to the Settlement Date. If the Company
defaults in its obligation to deliver Placement Shares on a Settlement Date, the
Company agrees that, in addition to and in no way limiting the rights and
obligations set forth in Section 8(a) hereto, it will (i) hold CF&Co. harmless
against any loss, claim, damage, or expense (including reasonable out-of-pocket
fees and expenses of external counsel), as
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incurred, arising out of or in connection with such default by the Company and
(ii) pay to CF&Co. any underwriting commission and discount, to which it would
otherwise have been entitled absent such default. If CF&Co. defaults in its
obligation to deliver Net Proceeds on a Settlement Date, CF&Co. agrees that, in
addition to and in no way limiting the rights and obligations set forth in
Section 8(b) hereto, it will (i) hold the Company harmless against any loss,
claim, damage, or expense (including reasonable out-of-pocket fees and expenses
of external counsel), as incurred, arising out of or in connection with such
default by the CF&Co. and (ii) pay to the Company such Net Proceeds to which it
would otherwise have been entitled absent such default.
6. Covenants of the Company. The Company and the Operating Partnership
severally covenant and agree with CF&Co. that:
(a) In respect of the offering of the Shares, the Company will (i) prepare
a Prospectus Supplement setting forth the number of Shares to be sold through
CF&Co. and the compensation payable by the Company to CF&Co., and such other
information as the Company deems appropriate in connection with the offering of
the Shares, (ii) file the Prospectus Supplement in a form approved by CF&Co.
pursuant to Rule 424 under the Securities Act within the applicable time period
prescribed by such rule for such filing (each and every filing under Rule 424, a
"Filing Date"), (iii) furnish to CF&Co. at the time of filing thereof a copy of
any document that upon filing is deemed to be incorporated by reference in the
Registration Statement or Prospectus, except for documents filed through EDGAR
and (iv) furnish copies of the Prospectus to CF&Co. as CF&Co. shall specify in
New York City prior to 10:00 A.M., New York City time as soon as practicable
after the date of this Agreement in such quantities as CF&Co. may reasonably
request;
(b) At any time when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act in connection with sales of Shares, the
Company will advise CF&Co. promptly and, if requested by CF&Co., 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 Shares
for offering or sale in any jurisdiction, or the initiation of any proceeding
for such purposes, and (vi) the happening of any event which makes any statement
of a material fact made in the Registration Statement or the Prospectus untrue
or which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading. At any time when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of Shares, the
Company will make every reasonable effort to prevent the issuance of any stop
order and, if at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time;
(c) The Company will furnish to CF&Co. without charge, such number of
conformed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and documents
incorporated by reference except for exhibits and documents filed through EDGAR,
as CF&Co. may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to CF&Co. 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 Shares, not to
file any amendment to the Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus of which
CF&Co. shall not previously have been advised or to which CF&Co. or counsel for
CF&Co. shall reasonably object (provided, however, that the failure of CF&Co. to
make such objection
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shall not relieve the Company of any obligation or liability hereunder, or
affect CF&Co.'s right to rely on the representations and warranties made by the
Company in this Agreement); and to prepare and file with the Commission,
promptly upon CF&Co.'s reasonable request, any amendment to the Registration
Statement, Rule 462(b) Registration Statement or amendment or supplement to the
Prospectus which, in the opinion of counsel for CF&Co., may be necessary in
connection with the distribution of the Shares by CF&Co., 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 CF&Co. 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 Shares, any
event shall occur as a result of which, in the opinion of counsel for CF&Co., it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with any law, the Company will
promptly notify CF&Co. to suspend the offering of Shares and, if the Company
wishes to proceed with the offering, the Company will forthwith prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus (in
form and substance reasonably satisfactory to counsel for CF&Co.) 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 CF&Co. as CF&Co. shall specify, such
number of copies thereof as CF&Co. may reasonably request; provided, however,
that the failure of CF&Co. to make such request shall not relieve the Company of
any obligation or liability hereunder, or affect CF&Co.'s right to rely on the
representations and warranties made by the Company in this Agreement;
(f) The Company will use its best efforts, in cooperation with CF&Co., to
qualify, register or perfect exemptions for the Shares for offer and sale by
CF&Co. under the applicable state securities, Blue Sky and real estate
syndication laws of such jurisdictions as CF&Co. may reasonably request;
provided, however, the Company will not be required to qualify as a foreign
corporation, file a general consent to service of process in any such
jurisdiction, subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any undertaking
or make any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders. In each jurisdiction in which the Shares have been
so qualified or registered, the Company will use all reasonable efforts to file
such statements and reports as may be required by the laws of such jurisdiction,
to continue such qualification or registration in effect for so long a period as
CF&Co. may reasonably request for the distribution of the Shares and to file
such consents to service of process or other documents as may be necessary in
order to effect such qualification or registration; provided, however, the
Company will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders;
(g) To make generally available to the Company's stockholders as soon as
reasonably practicable but not later than sixty days after the close of the
period covered thereby (90 days in the event the close of such period is the
close of the Company's fiscal year), an earnings statement (in form complying
with the provisions of Rule 158 of the Securities Act) covering a period of at
least twelve months after the effective date of the Registration Statement (but
in no event commencing later than 90 days after such date) which shall satisfy
the provisions of Section 11(a) of the Securities Act, and, if
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required by Rule 158 of the Securities Act, to file such statement as an exhibit
to the next periodic report required to be filed by the Company under the
Exchange Act covering the period when such earnings statement is released;
(h) During the period when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of the Shares,
to file all documents required to be filed by it with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act within the time periods required by the
Exchange Act and will also furnish copies of such documents and the Prospectus
to the Exchange or any other exchange or market on which sales of the Shares may
be made to the extent required by the Exchange or such exchange or market;
(i) The Company will pay all costs, expenses, fees and taxes incident to
(i) the preparation, printing, filing and distribution under the Securities Act
of the Registration Statement and any amendment thereto (including financial
statements and exhibits), the Prospectus and all amendments and supplements to
any of them prior to or during the period specified in Section 6(e), (ii) the
printing and delivery of this Agreement and any Blue Sky Memorandum, (iii) the
qualification or registration of the Shares for offer and sale under the state
securities, Blue Sky or real estate syndication laws of the several states in
accordance with Section 6(f) hereof, (iv) the fee of and the filings and
clearance, if any, with the National Association of Securities Dealers, Inc.
(the "NASD") in connection with the offering, (v) furnishing such copies of the
Registration Statement, the preliminary prospectus, the Prospectus and all
amendments and supplements thereto as may be requested for use in connection
with the offering or sale of the Shares by CF&Co., (vi) the costs and charges of
any transfer agent or registrar, (vii) the preparation, issuance and delivery of
certificates for the Shares to CF&Co., (viii) any transfer taxes imposed on the
sale by the Company of the Shares to CF&Co., (ix) the fees and disbursements of
the Company's counsel, and (x) any listing or other fees in connection with the
listing of the Shares on the Exchange. CF&Co., (i) upon the sale and settlement
of at least half of the Shares will reimburse to the Company all fees and
expenses payable to the Company's accountants incident to the issuance of the
Comfort Letters (as hereinafter defined) issued as of such date and (ii) the
sale and settlement of the remainder of the Shares will reimburse to the Company
all fees and expenses, payable to the Company's accountants incident to the
issuance of the Comfort Letters issued pursuant to this Agreement that have not
been previously reimbursed;
(j) The Company will use its best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior to
any Settlement Date and to satisfy all conditions precedent to any delivery of
the Shares;
(k) The Company will use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus under "Use of Proceeds";
(l) The Company will use its best efforts to continue to qualify as a real
estate investment trust ("REIT") under Sections 856 through 860 of the Internal
Revenue Code of 1986, as amended (the "Code"), unless the Company's board of
trustees determines that it is no longer in the best interests of the Company to
be so qualified;
(m) During the period beginning on the date on which any Acceptance is
delivered to CF&Co. hereunder and ending on the final Settlement Date with
respect to Shares sold pursuant to such Placement Notice, the Company will not,
at any time, directly or indirectly, (i) take any action intended, or which
might reasonably be expected to cause or result in, or which will constitute
stabilization of the price of the Common Stock to facilitate the sale or resale
of any Shares in violation of the Securities Act or (ii) sell, bid for, or
purchase the Shares, or pay anyone any compensation for soliciting purchases of
the Shares other than CF&Co.,
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(n) The Company will cooperate with CF&Co. and use commercially reasonable
efforts to permit the Shares to be eligible for clearance and settlement through
the facilities of DTC;
(o) The Company will use commercially reasonable efforts to cause the
Shares to be listed on the Exchange;
(p) Without the written consent of CF&Co., the Company will not, directly
or indirectly, offer to sell, sell, contract to sell, grant any option to sell
or otherwise dispose of any shares of Common Stock (other than the Shares
offered pursuant to the provisions of this Agreement), or securities convertible
into or exchangeable for Common Stock, warrants or any rights to purchase or
acquire, Common Stock during the period beginning on the date on which any
Acceptance is delivered to CF&Co. hereunder and ending on the fifth (5th)
Trading Day immediately following the final Settlement Date with respect to
Shares sold pursuant to such Placement Notice provided, however, that such
restrictions will not be required in connection with the Company's issuance or
sale of (i) Common Stock, options to purchase shares of Common Stock or Common
Stock issuable upon the exercise of options, pursuant to any employee or
director stock option or benefits plan, stock ownership plan or dividend
reinvestment plan (but not shares subject to a waiver to exceed plan limits in
its stock purchase plan) of the Company now in effect (ii) Common Stock issuable
upon the redemption or conversion of limited partnership units of the Operating
Partnership and (iii) except as disclosed in writing to CF&Co., Common Stock
issuable upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding;
(q) The Company will, during the period beginning on the date on which any
Acceptance is delivered to CF&Co. hereunder and ending on the final Settlement
Date with respect to Shares sold pursuant to such Placement Notice, advise
CF&Co. promptly after it shall have received notice or obtained knowledge
thereof, of any information or fact that would alter or affect any opinion,
certificate, letter or other document provided to CF&Co. pursuant to this
Agreement;
(r) The Company will cooperate with any due diligence review conducted by
CF&Co. or its agents, including, without limitation, providing information and
making available documents and senior corporate officers, as CF&Co. may
reasonably request; provided, however, that the Company shall be required to
make available documents and senior corporate officers only (i) at the Company's
principal offices and (ii) during the Company's ordinary business hours;
(s) On the date hereof and each time that (i) the Registration Statement
shall be amended or the Prospectus supplemented in connection with the sale of
Shares (other than a supplement filed pursuant Rule 424(b) under the Securities
Act that contains solely the information required pursuant to Section 6(a)
above) or (ii) there is filed with the Commission any Annual Report on Form 10-K
or 10-K/A, any Quarterly Report on Form 10-Q or 10-Q/A and any Current Report on
Form 8-K that contains audited, unaudited or pro forma financial statements, the
Company shall furnish or cause to be furnished to CF&Co. forthwith a certificate
dated the date of filing with the Commission of such amendment, supplement, or
other document, or the date hereof, as the case may be, in the form attached
hereto as Exhibit 6(s).
(t) On the date hereof the Company shall furnish or cause to be furnished
forthwith to CF&Co. a written opinion or opinions of Cahill Gordon & Reindel
LLP, counsel to the Company ("Company Counsel"), McGuireWoods LLP, special
Maryland counsel to the Company, and Barack Ferrazzano Kirschbaum Perlman &
Nagelberg LLP, special Illinois counsel to the Company, or other counsels
satisfactory to CF&Co., dated the date hereof in form and substance satisfactory
to CF&Co. and its counsel, substantially the forms attached hereto as Exhibits
6(t)(1), 6(t)(2) and 6(t)(3), respectively; and each time that (i) the
Registration Statement is amended or the Prospectus supplemented in connection
with the sale of Shares (other than a supplement filed pursuant Rule 424(b)
under the
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Securities Act that contains solely the information required pursuant to Section
6(a) above) or (ii) there is filed with the Commission any Annual Report on Form
10-K or 10-K/A (other than a 10-K/A to include the information required by Part
III of Form 10-K or to restate or amend the historical financial statements of
the Company), the Company shall furnish or cause to be furnished forthwith to
CF&Co. a written opinion or opinions of Company Counsel or other counsel
satisfactory to CF&Co. dated the date of filing with the Commission of such
amendment or supplement or 10-K or 10-K/A, as the case may be, in form and
substance satisfactory to CF&Co. and its counsel, in substantially the form
attached hereto as Exhibit 6(t)(4), but modified as necessary to relate to the
Registration Statement and the Prospectus, as amended and supplemented to the
time of delivery of such opinion.
(u) On the date hereof and each time that (i) the Registration Statement is
amended or the Prospectus supplemented in connection with the sale of Shares to
include additional amended financial information or (ii) there is filed with the
Commission any Annual Report on Form 10-K or 10-K/A that contains audited
financial statements and any Current Report on Form 8-K that contains audited,
unaudited or pro forma financial statements, the Company shall cause its
independent registered public accounting firm reasonably satisfactory to CF&Co.,
forthwith to furnish CF&Co. letters (the "Comfort Letters"), dated the date
hereof, or the date of filing of such amendment, supplement or other document
with the Commission, as the case may be, in form and substance satisfactory to
CF&Co., (A) confirming that it is an independent registered public accounting
firm in accordance with the standards of the Public Company Accounting Oversight
Board and within the meaning of the Securities Act and is in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, (B) containing statements and
information of the type ordinarily included in accountants "comfort letters" as
set forth in the AICPA's Statement on Audit Standards 72 to underwriters in
connection with registered public offerings (the first such letter, the "Initial
Comfort Letter") and (C) updating the Initial Comfort Letter with any
information which would have been included in the Initial Comfort Letter had it
been given on such date and modified as necessary to relate to the Registration
Statement and the Prospectus, as amended and supplemented to the date of such
letter.
7. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to, and agree with, CF&Co. that:
(a) The Common Stock is registered pursuant to Section 12(g) or 12(b) of
the Exchange Act and the Company and the Operating Partnership has filed all
reports, schedules, forms, statements and other documents required to be filed
by it with the Commission (the "Commission Documents") for at least two (2)
years, and all of such filings have been made on a timely basis. The Common
Stock is currently listed on the Exchange under the trading symbol "FR". The
Company and the Operating Partnership meet the requirements for use of Form S-3
under the Securities Act, including but not limited to the transaction
requirements for a primary offering;
(b) The Registration Statement and the Prospectus, including the financial
statements, schedules and related notes included in the Prospectus as of the
date hereof and at the time the Registration Statement became effective, and
when any post effective amendment to the Registration Statement or Rule 162(b)
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission or at the time of the filing of the
Company's Annual Report on Form 10-K (the "10-K"), did or will comply in all
material respects with all applicable provisions of the Securities Act and will
contain all statements required to be stated therein in accordance with the
Securities Act. The Prospectus, including the financial statements, schedules
and related notes included or incorporated by reference in the Prospectus as of
the date hereof and at the time the Registration Statement became effective, and
at any Settlement Date, and when any post-effective amendment to the
Registration Statement or Rule 462(b) Registration Statement becomes effective
or any amendment or
-8-
supplement to the Prospectus is filed with the Commission or at the time of the
filing of the 10-K, did or will comply in all material respects with all
applicable provisions of the Securities Act and will contain all statements
required to be stated therein in accordance with the Securities Act. On the date
the Registration Statement was declared effective, on the date hereof, on the
date of filing of any Rule 462(b) Registration Statement, on the date of the
filing of the 10-K and on the Settlement 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, on the
date of the filing of the 10-K and at any Settlement Date, the Prospectus did
not and will not contain an untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If a Rule 462(b)
Registration Statement is filed in connection with the offering and sale of the
Shares, the Company 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 7(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to CF&Co. furnished
in writing to the Company or the Operating Partnership by CF&Co. 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
Shares 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 CF&Co. and CF&Co.'s 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 and 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 CF&Co.
for use in connection with the offering of Shares will, at the time of such
delivery, be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to 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, at the time of the filing of the
10-K and as of the Settlement Date, or during the period specified in Section
6(h), 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 7(d) do not apply to
any statements or omissions made in reliance on and in conformity with
information relating to CF&Co. furnished in writing to the Company or the
Operating Partnership by CF&Co. 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.
-9-
(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.
Each of First Industrial Securities Corporation ("FISC"), First Industrial
Indianapolis Corporation ("FIIC"), First Industrial Finance Corporation
("FIFC"), First Industrial Mortgage Corporation ("FIMC"), First Industrial
Development Services, Inc. ("FIDSI") and First Industrial Pennsylvania
Corporation ("FIPC"), (FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to
collectively herein as the "Corporate Subsidiaries," and the Partnership
Subsidiaries and the Corporate Subsidiaries are referred to herein collectively
as the "Subsidiaries" or individually as a "Subsidiary"), has been duly
organized and is validly existing as a corporation in good standing under and by
virtue of the laws of its jurisdiction of incorporation. Other than the
Corporate Subsidiaries and the Partnership Subsidiaries, no entities in which
the Company owns any equity securities constitute, individually or in the
aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X
promulgated under the Exchange Act. The Company is the sole general partner of
the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and
is the sole general partner of the Financing Partnership. FIM is a wholly-owned
subsidiary of the Company and is the sole general partner of the Mortgage
Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole
general partner of Securities, L.P. The Operating Partnership and FISC are the
only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of
the Company and is the sole general partner of FIP. FIIC is a wholly-owned
subsidiary of the Company and is the sole general partner of FII. FIHC is a
wholly-owned subsidiary of the Company and is the sole general partner of FIH.
FIDSI is a wholly-owned subsidiary of the Operating Partnership. The Operating
Partnership is the sole limited partner of each Partnership Subsidiary (except
for Securities, L.P.). The Operating Partnership, the Company and each of the
Subsidiaries has, and at any Settlement Date will have, full corporate,
partnership or limited liability company power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate all
the properties and other assets owned, leased or operated by it and to conduct
its business in which it engages or proposes to engage as described in the
Prospectus and the transactions contemplated hereby and thereby. The Company and
each of the Corporate Subsidiaries is, and at any Settlement 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 814 in service properties owned,
directly or indirectly, by the Company as of June 30, 2004 (the "Properties")
taken as a whole, (ii) the issuance, validity or enforceability of the Shares or
(iii) the consummation of any of the transactions contemplated by this Agreement
(each a "Material Adverse Effect"), which jurisdictions of foreign qualification
or registration are identified in Schedule 3 hereto. The Operating Partnership
and each of the Partnership Subsidiaries is, and at any Settlement 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 3 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 CF&Co. or CF&Co.'s counsel have been delivered to CF&Co. or CF&Co.'s counsel;
-10-
(f) The Company's authorized capitalization consists of 10,000,000 shares
of preferred stock, par value $.01 per share, 100,000,000 shares of common
stock, par value $.01 per share, and 65,000,000 shares of excess stock, par
value $.01 per share. All of the Company's issued and outstanding shares of
common stock and preferred stock have been duly authorized and are validly
issued, fully paid and non-assessable and will have been offered and sold in
compliance, in all material respects, with all applicable laws (including,
without limitation, federal or state securities laws). The Shares have been duly
authorized for issuance and sale to CF&Co. or to purchasers identified by CF&Co.
pursuant to this Agreement and, when validly issued and delivered pursuant to
this Agreement against payment of the Net Proceeds, will be duly authorized,
validly issued, fully paid and non-assessable and will not be subject to any
preemptive or similar right and will have been offered and sold in compliance,
in all material respects, with all applicable laws (including, without
limitation, federal or state securities laws). The description of the Shares,
and the statements related thereto, contained in the Registration Statement or
the Prospectus are, and the Prospectus at any Settlement Date will be, complete
and accurate in all material respects. Upon payment of the Net Proceeds and
delivery of certificates representing the Shares in accordance herewith, CF&Co.
or such other purchaser will receive good, valid and marketable title to the
Shares, free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. No shares of common or preferred stock of the
Company are reserved for any purpose other than securities to be issued pursuant
to this Agreement and except as disclosed in the Prospectus other than shares
reserved for issuance pursuant to the Company's Shareholder Rights Plan;
(g) As of the Settlement 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 Settlement 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
-11-
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, the Public Company Accounting Oversight Board 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 ratio of earnings to
fixed charges in Exhibits 12.1 to the Registration Statement has been calculated
in compliance with Item 503(d) of Regulation S-K of the Commission. No other
financial statements (or schedules) of the Company, the Operating Partnership
and the Partnership Subsidiaries or any predecessor of the Company and/or the
Operating Partnership and the Partnership Subsidiaries are required by the
Securities Act or the Exchange Act to be included in the Registration Statement
and the Prospectus. PricewaterhouseCoopers LLP, which has reported on such
financial statements, schedules and related notes, is an independent registered
public accounting firm in accordance with the standards of the Public Company
Accounting Oversight Board with respect to the Company, the Operating
Partnership and the Partnership Subsidiaries as required by the Securities Act;
(i) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and prior to the Settlement 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 Company, the Operating Partnership or any of the
Subsidiaries which would be material to the Company, the Operating Partnership
and the Subsidiaries considered as one enterprise (anything which would be
material to the Company, the Operating Partnership and the Subsidiaries,
considered as one enterprise, being hereinafter referred to as "Material"), (ii)
except as described in the Prospectus, neither the Company, the Operating
Partnership 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, 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, (b) Depositary Shares each representing
1/100 of a share of 6.236% Series F Cumulative Preferred Stock, (c) Depositary
Shares each representing 1/100 of a share of 7.236% Series G Cumulative
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 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 Company, the Operating Partnership nor any of the
Subsidiaries is, or as of the Settlement Date will be, required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
-12-
(k) To the knowledge of the Company or the Operating Partnership, after due
inquiry, except as set forth in the Registration Statement and the Prospectus,
there are no actions, suits, proceedings, investigations or inquiries, pending
or, threatened against or affecting the Company, the Operating Partnership or
any of the Subsidiaries or any of their respective officers or directors in
their capacity as such or of which any of their respective properties or assets
or any Property is the subject or bound, before or by any Federal or state
court, commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, wherein an unfavorable ruling, decision or finding
would reasonably be expected to have a Material Adverse Effect;
(l) The Company, the Operating Partnership and each of the Subsidiaries (i)
has, and at any Settlement 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 any
Settlement 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 Company, the Operating Partnership nor any
of the Subsidiaries is, nor at any Settlement 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
Shares hereunder except such as have been obtained under the Securities Act, the
Exchange Act and such as may be required under state securities, Blue Sky or
real estate syndication laws or the by-laws, the corporate financing rule or the
conflict of interests rule of the NASD in connection with the purchase and
distribution by CF&Co. of the Shares or such as have been received prior to the
date of this Agreement, and except for the filing of this Agreement with the
Commission as an exhibit to a Form 8-K, which the Company agrees to make in a
timely manner;
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, constitutes a valid and binding agreement
of the Company and the Operating Partnership, and assuming due authorization,
execution and delivery by CF&Co., is enforceable against the Company and 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 issuance and sale of the Shares, the consummation of the
transactions contemplated hereby, and compliance by each of the Company, the
Operating Partnership and the Subsidiaries with its obligations hereunder to the
extent each is a party thereto, will not result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets or properties of the
Company, the Operating
-13-
Partnership or any of the Subsidiaries pursuant to the terms or provisions of,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate any of
its obligations under, or result in the acceleration of any obligation under,
the certificate of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other organizational documents of the Company, the
Operating Partnership or any of the Subsidiaries, any Contract or Other
Agreement to which the Company, the Operating Partnership or any of the
Subsidiaries is a party or by which the Company, the Operating Partnership or
any of the Subsidiaries or any of their assets or properties are bound or
affected, or violate or conflict with any judgment, ruling, decree, order,
statute, rule or regulation of any court or other governmental agency (foreign
or domestic) or body applicable to the business or properties of the Company,
the Operating Partnership 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 Settlement Date, the Company, the Operating Partnership and
each of the Subsidiaries will have good and marketable title to all properties
and assets described in the Prospectus as owned by it, free and clear of all
liens, encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement or the Prospectus, or such as secure the
loan facilities of the Company, the Operating Partnership and the Subsidiaries,
or would not result in a Material Adverse Effect;
(p) To the knowledge of the Company: (i) no lessee of any portion of the
Properties is in default under any of the leases governing such Properties and
there is no event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except in each case
such defaults that would not have a Material Adverse Effect; (ii) the current
use and occupancy of each of the Properties complies in all material respects
with all applicable codes and zoning laws and regulations, except for such
failures to comply which would not individually or in the aggregate have a
Material Adverse Effect; and (iii) there is no pending or threatened
condemnation, zoning change, environmental or other proceeding or action that
will in any material respect affect the size of, use of, improvements on,
construction on, or access to the Properties except such proceedings or actions
that would not have a Material Adverse Effect;
(q) The Company, the Operating Partnership and the Partnership Subsidiaries
have property, title, casualty and liability insurance in favor of the Company,
the Operating Partnership or the Partnership Subsidiaries with respect to each
of the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Company, the Operating Partnership
and the Partnership Subsidiaries except in such instances where the tenant is
carrying such insurance or the tenant is self-insuring such risks;
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Company, the Operating Partnership and the
Subsidiaries, after due inquiry, the operations of the Company, the Operating
Partnership 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 Company, the Operating Partnership 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 Company, the Operating
-14-
Partnership 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
Company, the Operating Partnership 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 Company,
the Operating Partnership 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
Company, the Operating Partnership 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, PCBs, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject to
regulation under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
ss. 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. ss. 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss.
651, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 1801, et seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the environment or
of human health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority having the
duty or authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and "Release"
shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or disposing of
any Hazardous Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing and containing a residue of any Hazardous Substance;
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Company, the Operating Partnership or any of the Subsidiaries, and none of them
nor any of their directors, officers or employees is connected with the Company,
the Operating Partnership or any of the Subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee;
-15-
(s) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so that the Company qualifies as a REIT under
Sections 856 through 860 of the Code, and the Company has elected to be taxed as
a REIT under the Code commencing with the taxable year ended December 31, 1994.
The Company, the Operating Partnership and the Subsidiaries intend to continue
to be organized and operate so that the Company shall qualify as a REIT for the
foreseeable future, unless the Company's board of trustees determines that it is
no longer in the best interests of the Company to be so qualified;
(t) 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 with the
Commission as an exhibit to a Form 8-K, which the Company agrees to make in a
timely manner, and the descriptions thereof or references thereto are accurate
in all material respects;
(u) None of the Company, the Operating Partnership or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Company, the Operating Partnership or the Subsidiaries, after due inquiry, is
any such dispute threatened which would be Material;
(v) The Company, the Operating Partnership and the Subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in or necessary for the conduct of
their respective businesses as described in the Prospectus. To the knowledge of
the Company or the Operating Partnership, no claims have been asserted by any
person to the use of any such trademarks or trade names or challenging or
questioning the validity or effectiveness of any such trademark or trade name.
The use, in connection with the business and operations of the Company, the
Operating Partnership and the Subsidiaries, of such trademarks and trade names
does not, to the Company's or the Operating Partnership's knowledge, infringe on
the rights of any person;
(w) Each of the Company, the Operating Partnership and the Subsidiaries has
filed all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file would
not result in a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing would otherwise be delinquent, except, in all cases,
for any such tax, assessment, fine or penalty that is being contested in good
faith and except in any case in which the failure to so pay would not result in
a Material Adverse Effect;
(x) The Operating Partnership and each of the Partnership Subsidiaries is
properly treated as a partnership for U.S. federal income tax purposes and not
as a "publicly traded partnership;"
(y) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company, the
Operating Partnership or the Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(z) The Company has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Common Stock, and the
Company has not distributed and have agreed not to distribute any prospectus or
other offering material in connection with the offering and sale of the Shares
other than the Prospectus, any preliminary prospectus filed with the Commission
or other material permitted by the Securities Act (which were disclosed to
CF&Co. and its counsel);
-16-
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets, financial and
corporate books and records is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(bb) Any certificate or other document signed by any officer or authorized
representative of the Company, the Operating Partnership or any Subsidiary, and
delivered to CF&Co. or to CF&Co.'s counsel in connection with the sale of the
Shares shall be deemed a representation and warranty by such entity or person,
as the case may be, to CF&Co. as to the matters covered thereby;
(cc) On each Settlement Date and each Filing Date, the Company and the
Operating Partnership shall be deemed to have confirmed (i) the accuracy and
completeness, as of such date, of each representation and warranty made by it in
this Agreement, as if each such representation and warranty were made on and as
of such date, and (ii) that the Company and the Operating Partnership have
complied with all of the agreements to be performed by it hereunder at or prior
to such date;
(dd) The Company is not a party to any agreement with an agent or
underwriter for any other "at-the-market" or continuous equity transaction;
(ee) The Company acknowledges and agrees that CF&Co. has informed the
Company that CF&Co. may, to the extent permitted under the Securities Act and
the Exchange Act, purchase and sell shares of Common Stock for its own account
while this Agreement is in effect provided that (i) no such purchase or sales
shall take place while a Placement Notice is in effect (except to the extent
CF&Co. may engage in sales of Placement Shares purchased or deemed purchased
from the Company as a "riskless principal" or in a similar capacity) and (ii)
the Company shall not be deemed to have authorized or consented to any such
purchases or sales by CF&Co.,
(ff) 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;
(gg) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the Exchange Act),
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to each of the
Company's principal executive officer and principal financial officer by others
within those entities, particularly during the preparation of the Prospectus
Supplement; (ii) have been evaluated for effectiveness as of the date of the
filing of the Prospectus Supplement with the Commission; and (iii) are effective
in all material respects to perform the functions for which they were
established, except where a failure to be so effective will not have a Material
Adverse Effect;
(hh) Based on its evaluation of its internal controls over financial
reporting, the Company is not aware of (i) any significant deficiency or
material weakness in the design or operation of internal control over financial
reporting which are reasonably likely to adversely affect the Company's
-17-
ability to record, process, summarize and report financial information; or (ii)
any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company's internal control over financial
reporting;
8. Indemnification and Contribution.
(a) The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless CF&Co., each director, officer, partner, employee
and agent of CF&Co., and each person, if any, who controls, is controlled by or
under common control with CF&Co. within the meaning of either Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including without limitation the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) (i) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, (ii) 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. The foregoing indemnity agreement shall be in
addition to any liability which the Company and the Operating Partnership may
otherwise have.
(b) CF&Co. agrees to indemnify and hold harmless the Company and the
Operating Partnership, and each director, officer, partner, employee or agent of
the Company and the Operating Partnership, and each person who controls or is
controlled by or under common control with the Company or the Operating
Partnership within the meaning of Section 15 of the Securities Act and Section
20(a) of the Exchange Act, to the same extent as the foregoing indemnity from
the Company and the Operating Partnership to CF&Co., but only with reference to
information relating to CF&Co. furnished to the Company and the Operating
Partnership in writing by CF&Co. expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto. For purposes of
this Section 8 and Sections 7(b) and (d), the only written information furnished
by CF&Co. to the Company expressly for use in the Registration Statement and the
Prospectus Supplement is CF&Co.'s name as it appears on the cover of the
Prospectus Supplement.
(c) 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 CF&Co., their
directors, officers, partners, employees and agents and such control persons of
CF&Co. shall be designated in writing by CF&Co. and any such separate firm for
the Company, the Operating
-18-
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 45
days after receipt by such Indemnifying Person of the aforesaid request, (ii)
such Indemnifying Person shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement; provided
that an Indemnifying Person shall not be liable for any such settlement effected
without its consent if such Indemnifying Person, at least five days prior to the
date of such settlement, (i) reimburses such Indemnified Person in accordance
with such request for the amount of such fees and expenses of counsel as the
Indemnifying Person believes in good faith to be reasonable and (ii) provides
written notice to the Indemnified Person that the Indemnifying Person disputes
in good faith the reasonableness of the unpaid balance of such fees and
expenses. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement (i) includes an unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or behalf of an Indemnified Person. 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.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 8 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 CF&Co. on the other hand from the offering of the Shares 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 CF&Co. 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 CF&Co. on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Shares (before
deducting expenses) received by the Company and the Operating Partnership and
the total underwriting discounts and the commissions received by CF&Co. bear to
the aggregate public offering price of the Shares. The relative fault of the
Company and the Operating Partnership on the one hand and CF&Co. 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
-19-
the Operating Partnership on the one hand or by CF&Co. 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 CF&Co. agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation 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 8, in no event shall CF&Co. be
required to contribute any amount in excess of the underwriting discounts or
commissions received by it under this Agreement that CF&Co. 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.
(e) The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
9. Conditions to CF&Co.'s Obligations. The obligations of CF&Co. hereunder
with respect to a Placement will be subject to the completion by CF&Co. of a due
diligence review satisfactory to CF&Co. in its reasonable judgment, and to the
satisfaction on an applicable Settlement Date (or waiver by CF&Co. in its sole
discretion) of the following additional conditions:
(a) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Securities Act and shall be available
for the resale of (i) all Placement Shares to be sold pursuant to all prior
Placements and not yet sold by CF&Co. and (ii) all Placement Shares contemplated
to be issued by the Placement Notice relating to such Placement. 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 CF&Co.'s 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
Settlement Date, with the same force and effect as if made on and as of the
Settlement 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 Settlement Date.
(c) CF&Co. shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in CF&Co.'s opinion is material, or omits to state
a fact that in CF&Co.'s opinion is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
-20-
(d) [Intentionally Omitted]
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
change in the capital stock, partners' equity or long-term debt of the Company,
the Operating Partnership or any of the Subsidiaries on a consolidated basis,
except as described or contemplated in the Prospectus, or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, properties,
financial position, stockholders' equity, partners' equity or results of
operations of the Company, the Operating Partnership and the Subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of CF&Co. makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Placement Notice and the Prospectus; and
other than as set forth in the Prospectus, no proceedings shall be pending or,
to the knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or administrative
agency, where an unfavorable decision, ruling or finding could reasonably be
expected to result in a Material Adverse Effect.
(f) CF&Co. shall have received the opinion or opinions of Company Counsel,
special Maryland counsel and special Illinois counsel required to be delivered
pursuant Section 6(t) on or before the date on which such delivery of such
opinion is required pursuant to Section 6(t).
(g) CF&Co. shall have received the Comfort Letter required to be delivered
pursuant to Section 6(u) on or before the date on which such delivery of such
letter is required pursuant to Section 6(u).
(h) CF&Co. shall have received the 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
CF&Co. to the effect set forth in subsections (a), (b) and (e) of this Section 9
required to be delivered pursuant to Section 6(s) on or before the date on which
delivery of such certificate is required pursuant to Section 6(s).
(i) The Shares shall have been duly listed, subject to notice of issuance,
on the Exchange, and trading in the Common Stock shall not have been suspended
on such market.
(j) On each date on which the Company is required to deliver a certificate
pursuant to Section 6(s), the Company shall have furnished to CF&Co. such
appropriate further information, certificates and documents as CF&Co. may
reasonably request. All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof. The Company will furnish
CF&Co. with such conformed copies of such opinions, certificates, letters and
other documents as CF&Co. shall reasonably request.
(k) There shall not have occurred any event that would permit CF&Co. to
terminate this Agreement pursuant to Section 11(a).
10. Representations and Agreements to Survive Delivery. The indemnity and
contribution agreements contained in Section 8 of this Agreement and all
representations, warranties and covenants of the Company and the Operating
Partnership herein or in certificates delivered pursuant hereto 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 CF&Co. or any person
controlling CF&Co. or by or on behalf of
-21-
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 Shares.
11. Termination.
(a) CF&Co. shall have the right by giving notice as hereinafter specified
at any time to terminate this Agreement if (i) any Material Adverse Effect, or
any development that has actually occurred and that is reasonably expected to
cause a Material Adverse Effect has occurred which, in the reasonable judgment
of CF&Co., may materially impair the investment quality of the Shares, (ii) the
Company or the Operating Partnership shall have failed, refused or been unable,
at or prior to any Settlement Date, to perform any agreement on its part to be
performed hereunder, (iii) any other condition of CF&Co.'s obligations hereunder
is not fulfilled, (iv) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the Exchange, the American Stock
Exchange, the Nasdaq National Market, the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (v) 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, (vi) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities; (vii) any major
disruption of settlements of securities or clearance services in the United
States; or (viii) 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 CF&Co.'s judgment, is
material and adverse and which, singly or together with any other event
specified in clauses (iv) through (vii) of this Section 11(a), in CF&Co.'s
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus. Any such termination shall be without
liability of any party to any other party except that the provisions of Sections
6(i), 6(o), 8, 10, 16 and 17 hereof shall remain in full force and effect
notwithstanding such termination. If CF&Co. elects to terminate this Agreement
as provided in this Section, CF&Co. shall provide the required notice as
specified herein.
(b) The Company shall have the right at any time, by giving twenty (20)
days' notice as hereinafter specified, to terminate this Agreement in its sole
discretion. Any such termination shall be without liability of any party to any
other party except that the provisions of Sections 6(i), 6(o), 8, 10, 16 and 17
hereof shall remain in full force and effect notwithstanding such termination.
(c) CF&Co. shall have the right at any time, by giving twenty (20) days'
notice as hereinafter specified, to terminate this Agreement in its sole
discretion. Any such termination shall be without liability of any party to any
other party except that the provisions of Sections 6(i), 6(o), 8, 10, 16 and 17
hereof shall remain in full force and effect notwithstanding such termination.
(d) Unless earlier terminated pursuant to this Section 11, this Agreement
shall automatically terminate upon the issuance and sale of all of the Placement
Shares through CF&Co. on the terms and subject to the conditions set forth
herein; provided that Sections 6(i), 6(o), 8, 10, 16 and 17 hereof shall remain
in full force and effect.
(e) This Agreement shall remain in full force and effect unless terminated
pursuant to Section 11(a), (b), (c) or (d) above or otherwise by mutual
agreement of the parties; provided that any such termination by mutual agreement
shall in all cases be deemed to provide that Sections 6(i), 6(o), 8, 10, 16 and
17 shall remain in full force and effect.
(f) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by CF&Co. or the Company, as the case may be. If such termination
-22-
shall occur prior to the Settlement Date for any sale of Placement Shares, such
Placement Shares shall settle in accordance with the provisions of this
Agreement.
12. Notices. Subject to Section 4, 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
CF&Co., shall be given to CF&Co. at Cantor Fitzgerald & Co., 135 East 57 Street,
New York, New York 10022, fax no. (212) 829-4972, Attention: Investment Banking
Division, with a copy to Stephen Merkel, General Counsel at the same address,
with a copy to Clifford Chance US LLP, 31 West 52nd Street, New York, New York
10019, fax no. (212) 878-8375, Attention: Larry P. Medvinsky. Notices to the
Company, shall be given to First Industrial Realty Trust, Inc., 311 South Wacker
Drive, Suite 4000, Chicago, Illinois 60606, fax no. (312) 922-9851, Attention:
John H. Clayton, Esq., with a copy to Cahill Gordon & Reindel LLP, 80 Pine
Street, New York, New York 10005, fax no. (212) 269-5420, Attention: Gerald S.
Tanenbaum, Esq.
13. Successors and Assigns. This Agreement shall inure to the benefit of
and be legally binding upon the Company, the Operating Partnership, CF&Co., 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 Shares from CF&Co. shall be deemed
to be a successor by reason merely of such purchase. Neither party may assign
its rights or obligations under this Agreement without the prior written consent
of the other party (such consent not to be unreasonably withheld or delayed);
provided, however, that CF&Co. may, after giving notice to the Company, assign
its rights and obligations hereunder to an affiliate of CF&Co. without obtaining
the Company's or the Operating Partnership's consent.
14. Adjustments for Stock Splits. The parties acknowledge and agree that
all share related numbers contained in this Agreement shall be adjusted to take
into account any stock split, stock dividend or similar event effected with
respect to the Shares.
15. Entire Agreement; Amendment; Severability. This Agreement (including
all schedules and exhibits attached hereto and Placement Notices issued pursuant
hereto) constitutes the entire agreement and supersedes all other prior and
contemporaneous agreements and undertakings, both written and oral, among the
parties hereto with regard to the subject matter hereof. Neither this Agreement
nor any term hereof may be amended except pursuant to a written instrument
executed by the Company, the Operating Partnership and CF&Co. In the event that
any one or more of the provisions contained herein, or the application thereof
in any circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be affected or impaired
thereby.
16. Applicable Law; Consent to Jurisdiction. 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. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting in the City of New York, borough of Manhattan, for the adjudication of
any dispute hereunder or in connection with any transaction contemplated hereby,
and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof (certified or registered mail, return receipt requested)
to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice
-23-
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law.
17. Waiver of Jury Trial. The Company, the Operating Partnership and CF&Co.
each hereby irrevocably waives any right it may have to a trial by jury in
respect of any claim based upon or arising out of this agreement or any
transaction contemplated hereby.
18. Counterparts. 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.
-24-
If the foregoing correctly sets forth the understanding between the Company, the
Operating Partnership and CF&Co., please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, the Operating Partnership and CF&Co.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
-------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Michael J. Havala
--------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
ACCEPTED as of the date first-above written:
CANTOR FITZGERALD & CO.
By: /s/ Stephen Merkel
------------------------------------------
Stephen Merkel
Executive Managing Director & General
Counsel
-25-
SCHEDULE 1
FORM OF PLACEMENT NOTICE AND ACCEPTANCE
CANTOR FITZGERALD & CO.
135 East 57 Street
New York, New York 10022
Date
[Senior Executive]
First Industrial Realty Trust, Inc.
311 South Wacker Drive
Chicago, IL 60606
VIA FACSIMILE
Dear ________:
This confirms our agreement to sell up to 3,900,000 shares of Common Stock,
par value $0.01 per share, of First Industrial Realty Trust, Inc., a Maryland
corporation (the "Company"), pursuant to the CONTROLLED EQUITY OFFERINGSM Sales
Agreement executed between the Company, First Industrial, L.P. and Cantor
Fitzgerald & Co. ("CF&Co.") on _________, 2004 (the "Agreement"). Capitalized
terms used herein but not defined herein shall have the meanings set forth in
the Agreement.
Number of Shares to be Sold: ___________________________________
Minimum Price at which Shares may be Sold: ___________________________________
Date(s) on which Shares may be Sold: ___________________________________
Price:
/ / Minimum Price at which Shares may be Sold
______________________________
(in the case of an at the market offering)
_____________________________
/ / Price at which Shares will be Sold
______________________________
(in the case of a privately negotiated
transaction) _____________________________
Manner and capacity in which shares are
to be Sold : _____________________________
Very truly yours,
CANTOR FITZGERALD & CO.
By:
Sched. 1-A-1
By executing this Acceptance the undersigned certifies that (i) except to
the extent otherwise stated in this Placement Notice, the terms and provisions
of the Agreement in Sections 2, 3, 4 and 5 are incorporated by reference herein
by their entirety, (ii) all of the representations and warranties contained in
the Agreement are true and correct on the date hereof as if made on the date
hereof, (iii) the Board of Directors or any committee thereof has approved the
terms and conditions of this Placement Notice, (iv) the Company is in full
compliance with its obligations under the Agreement and (v) all of the
conditions precedent to the consummation of the sales contemplated by this
Placement Notice have been satisfied. The undersigned undertakes to promptly
notify CF&Co. in the event that the above certification shall cease to be true
and correct during any period in which sales may be made under this Placement
Notice.
ACCEPTED as of the date first-above written:
FIRST INDUSTRIAL REALTY TRUST, INC.
By:
---------------------------------
Name:
Title:
Sched. 1-A-2
SCHEDULE 2
CANTOR FITZGERALD & CO.
Phil Marber
Marc J. Blazer
Jeffrey Lumby
Patrice McNicoll
FIRST INDUSTRIAL REALTY TRUST, INC.
Michael J. Havala
Scott A. Musil
Sched. 2-1
SCHEDULE 3
Jurisdictions of Foreign Qualification of the Company, the
Corporate Subsidiaries and the Partnership Subsidiaries
ENTITY: JURISDICTION
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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
First Industrial Financing Partnership, L.P. Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
New Jersey
Pennsylvania
Tennessee
Texas
Wisconsin
- ----------
Denotes jurisdictions on which counsel is opining.
Sched. 3-1
ENTITY: JURISDICTION
- ------- ------------
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
FI Development Services Corporation Florida
Illinois
Maryland
Wisconsin
Sched. 3-2
ENTITY: JURISDICTION
- ------- ------------
First Industrial Realty Trust, Inc. 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
Sched. 3-3
EXHIBIT 6(t)(1)
Matters to be Covered by Initial Company Counsel Opinion or Opinions
(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 3 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 3
hereto, in each case except where the failure to obtain such qualification or
registration will not have a Material Adverse Effect.
(ii) The Operating Partnership and each of the Partnership Subsidiaries has
been duly formed and is validly existing as a limited partnership in good
standing under the laws of its state of organization. The Operating Partnership
and each of the Partnership Subsidiaries has all requisite partnership power and
authority to own, lease and operate its properties and other assets and to
conduct the business in which it is engaged and proposes to engage, in each case
as described in the Prospectus, and the Operating Partnership has the
partnership power to enter into and perform its obligations under the Sales
Agreement. 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 3 hereto, in each case
except where the failure to obtain such qualification or registration will not
have a Material Adverse Effect.
(iii) To the knowledge of such counsel, other than shares of Common Stock
that may be reserved for issuance pursuant to the Company's Shareholder Rights
Plan, no shares of Common Stock of the Company are reserved for any purpose. To
the knowledge of such counsel, other than units of the Operating Partnership
convertible into Common Stock or as otherwise described in the Prospectus, there
are no outstanding securities convertible into or exchangeable for any Common
Stock of the Company and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for Common Stock of the
Company. To the knowledge of such counsel, all of the outstanding partnership
interests of the Operating Partnership and each of the Partnership Subsidiaries
have been duly authorized, validly issued and fully paid, and (except as
described in the Prospectus) are owned directly or indirectly by the Company or
the Operating Partnership.
(iv) To the knowledge of such counsel, none of the Company, the Operating
Partnership or the Subsidiaries is in violation of or default under its charter,
bylaws, certificate of limited partnership or partnership agreement, as the case
may be, and none of such entities is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any document
(as in effect on the date of such opinion) listed as an exhibit to the
Registration Statement or the Company's and the Operating Partnership's Annual
Report on Form 10-K for the year ended December 31, 2003 or Quarterly Report on
Form 10-Q for the quarter ended June 30, 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 is subject or,
by which they may be bound (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.
(v) The Sales Agreement was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership.
(vi) The Registration Statement has been declared effective under the
Securities Act, the Base 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 Base Prospectus has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(vii) The execution and delivery of the Sales Agreement and the issuance
and sale of the Shares and the performance by the Company and the Operating
Partnership of their respective obligations under the Sales Agreement will not
require, to our 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 or state securities,
blue sky or real estate syndication laws in connection with the issuance and
sale of the Shares) and did not and do not conflict with or constitute a breach
or violation of or default under: (1) any document (as in effect on the date of
such opinion) listed as an exhibit to the Registration Statement, each of the
Company's and the Operating Partnership's Annual Report on Form 10-K for the
year ended December 31, 2003 or Quarterly Report on Form 10-Q for the quarter
ended June 30, 2004, in each case as amended, if applicable, to which either
such entity is a party or by which it or either 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 bylaws, as the case may be, of the Company, FIFC or
FISC; or (3) any applicable law, rule or administrative regulation, except in
each case for conflicts, breaches, violations or defaults that in the aggregate
are not reasonably expected to have a Material Adverse Effect.
(viii) To the knowledge of such counsel, no Material authorization,
approval, consent or order of any court or governmental authority or agency or
any other entity is required in connection with the offering, issuance or sale
of the Shares under the Sales Agreement, except such as may be required under
the Securities Act, the bylaws, corporate financing rule and conflict of
interest rule of the NASD, or state securities, "blue sky," or real estate
syndication laws, or such as have been received prior to the date of such
opinion.
(ix) The Registration Statement, at the time it became effective, and the
Prospectus, as of the date of the Prospectus Supplement (in each case, other
than (i) the financial statements, including the notes and schedules thereto,
(ii) any other financial data and (iii) statistical data that is found in or
derived from the internal accounting records of the Company, the Operating
Partnership or their respective subsidiaries, in each case as set forth or
incorporated by reference therein, as to which no opinion need be rendered),
complied as to form in all material respects with the requirements of the
Securities Act and the Exchange Act.
(x) The information in the Prospectus under "Risk Factors," "Description of
Common Stock," "Restrictions on Transfers of Capital Stock," and "Certain U.S.
Federal Income Tax Considerations" and in the Prospectus Supplement under
"Certain United States Federal Income Tax Considerations," to the extent that it
constitutes statements of law, descriptions of statutes, rules or regulations,
or summaries of documents or legal conclusions, has been reviewed by such
counsel and is correct in all material respects and presents fairly the
information required to be disclosed therein.
(xi) 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 to be filed as exhibits
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thereto by the Securities Act other than those described or referred to therein
or filed as exhibits thereto, and the descriptions thereof or references thereto
are accurate in all material respects.
(xii) The partnership agreement of each of the Operating Partnership,
Securities, L.P. and the Financing Partnership has been duly authorized, validly
executed and delivered by each of the Company and the Partnership Subsidiaries,
to the extent they are parties thereto, and is valid, legally binding and
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(xiii) The Company and the Operating Partnership satisfy all conditions and
requirements for filing the Registration Statement on Form S-3 under the
Securities Act.
(xiv) None of the Company or the Subsidiaries is required to be registered
as an investment company under the Investment Company Act of 1940, as amended.
(xv) We are of the opinion that, commencing with the Company's taxable year
ended December 31, 1994, the Company has been organized and operated in
conformity with the requirements for qualification and taxation as a REIT under
the Code, and the Company's current and proposed method of operation (as
represented by the Company to us in a written certificate) will enable it to
continue to meet the requirements for qualification and taxation as a REIT under
the Code .
In addition, Cahill Gordon & Reindel LLP shall confirm that the opinion
filed as Exhibit 8 to the Registration Statement is true and correct as of the
date thereof and shall authorize CF&Co. to rely on such opinion as if it were
addressed to CF&Co.
In addition, Cahill Gordon & Reindel LLP shall, in a separate letter, state
that they have participated in conferences with officers and other
representatives of the Company and the Operating Partnership, representatives of
the independent registered public accounting firm for the Company and the
Operating Partnership and representatives of CF&Co. at which the contents of the
Registration Statement and the Prospectus and related matters were discussed. On
the basis thereof (relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company and the Operating
Partnership), but without independent verification by such counsel of, and
without passing upon or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or any amendments or supplements thereto, no facts
have come to the attention of such counsel that lead them to believe that (i)
the Registration Statement, including the documents incorporated therein by
reference, at the time such Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Prospectus, including the documents
incorporated therein by reference, as of its date or at the date of such letter,
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 (i) the
financial statements, including the notes and schedules thereto, (ii) any other
financial data or (iii) statistical data that is found in or derived from the
internal accounting records of the Company, the Operating Partnership or their
respective subsidiaries, in each case as set forth in or incorporated by
reference into the Registration Statement or the Prospectus).
In giving its opinion, such counsel may rely (i) as to all matters of fact,
upon representations, statements or certificates of public officials and
statements of officers, directors, partners, employees and representatives of,
and accountants for, each of the Company, the Operating Partnership, and the
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Company's Subsidiaries, (ii) as to all matters of Maryland law, on the opinion
of McGuireWoods LLP, Baltimore, Maryland, which opinion shall be in form and
substance reasonably satisfactory to counsel for CF&Co., (iii) as to all matters
of Illinois law, on the opinion of Barack Ferrazzano Kirschbaum Perlman &
Nagelberg LLP, Chicago, Illinois, which opinion shall be in form and substance
reasonably satisfactory to counsel for CF&Co., and (iv) as to the good standing
and qualification of the Company, the Operating Partnership, FIFC, FISC and the
Financing Partnership 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, "blue sky" or real
estate syndication laws.
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EXHIBIT 6(t)(2)
Matters to be Covered by Special Maryland Counsel Opinion
(i) Each of the Company and the Corporate Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has corporate power
and authority to own, lease and operate its properties and other assets and to
conduct the business in which it is engaged or proposes to engage, in each case,
as described in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under the Sales Agreement.
(iii) The Company's authorized capitalization consists of 10,000,000 shares
of preferred stock, par value $.01 per share, 100,000,000 shares of common
stock, par value $.01 per share and 65,000,000 shares of excess stock, par value
$.01 per share. All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and are validly issued, fully paid and
non-assessable. All the issued and outstanding shares of capital stock of the
Corporate Subsidiaries have been duly authorized and are validly issued, fully
paid and non-assessable and are owned by the Company.
(iv) The Shares have been duly authorized for issuance and sale to CF&Co.
pursuant to the Sales Agreement, when validly issued and delivered pursuant to
this Agreement against payment of the Net Proceeds, will be duly authorized,
validly issued, fully paid and non-assessable. To the extent Maryland law
provides the basis for determination, CF&Co. is receiving good, valid and
marketable title to the Shares, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities if CF&Co. acquires
such Shares in good faith and without notice of any such security interests,
mortgages, pledges, liens, encumbrances, claims or equities. The terms of the
Shares conform in all material respects to all statements and descriptions
related thereto contained in the Registration Statement and the Prospectus. The
form of certificate used to evidence the Shares is in due and proper form and
comply in all material respects with all applicable legal requirements. The
issuance of the Shares is not subject to any preemptive or other similar rights
arising under Maryland General Corporation Law, the Company's charter or
by-laws, as amended to date, or any agreement of which such counsel is aware.
(v) The Sales Agreement was duly and validly authorized by the Company, on
behalf of itself and the Operating Partnership.
(vi) The execution and delivery of the Sales Agreement and the performance
of the obligations and the consummation of the transactions set forth 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 or blue sky or real estate
syndication 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.
(vii) To the knowledge of such counsel, no Material authorization,
approval, consent or order of any Maryland court, governmental authority, agency
or other entity is required in connection with the offering, issuance or sale of
the Shares hereunder, except such as may be required under Maryland securities,
blue sky or real estate syndication laws.
(viii) The information in the Prospectus under "Certain Provisions of
Maryland Law and First Industrial Realty Trust, Inc.'s Articles of Incorporation
and Bylaws" and "Restrictions on Transfers of Capital Stock", "Description of
Common Stock," "Description of Preferred Stock" and in Part II of the
Registration Statement under Item 15, to the extent that it constitutes
statements of law, descriptions of statutes, rules or regulations, summaries of
documents or legal conclusions, has been reviewed by such counsel and, as to
Maryland law, is correct in all material respects and presents fairly the
information required to be disclosed therein.
(ix) The Company and each of the Corporate Subsidiaries was authorized to
enter into the partnership agreement of each Partnership Subsidiary for which
the Company, the Operating Partnership or such Corporate Subsidiary, as the case
may be, is the general partner.
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EXHIBIT 6(t)(3)
Matters to be Covered by Special Illinois Counsel Opinion
(i) To the knowledge of such counsel, none of the Company or the Operating
Partnership, FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or
default in connection with the performance or observance of any obligation,
agreement, covenant or condition contained in any or all of that certain Third
Amended and Restated Unsecured Revolving Credit Agreement dated as of June 11,
2004 among First Industrial, L.P., as Borrower, First Industrial Realty Trust,
Inc., as General Partner and Guarantor, the Lenders, Bank One, NA, as
Administrative Agent, Banc One Capital Markets, Inc., as Lead Arranger and Sole
Book Runner, Wachovia Bank, National Association, as Syndication Agent, and
Commerzbank, AG, PNC Bank, National Association and Wells Fargo Bank, N.A., as
Documentation Agents (all such indebtedness collectively, the "Credit
Documents"), except in each case for defaults that, in the aggregate, are not
reasonably expected to have a Material Adverse Effect.
(ii) The execution and delivery of this Agreement, the performance of the
obligations and consummation of transactions set forth herein and therein by the
Company and the Operating Partnership did not and do not conflict with, or
constitute a breach or violation of, or default under: (A) any or all of the
Credit Documents; (B) any applicable law, rule or administrative regulation of
the federal government (or agency thereof) of the United States; or (C) any
order or administrative or court decree issued to or against, or concerning any
or all of the Company, the Operating Partnership, the Partnership Subsidiaries
and the Corporate Subsidiaries, of which, in the cases of clauses (B) and (C)
above, such counsel is aware, except in each case for conflicts, breaches,
violations or defaults that, in the aggregate, would not have a Material Adverse
Effect.
(iii) To the knowledge of such counsel, there are no legal or governmental
proceedings pending or threatened that do, or are likely to, have a Material
Adverse Effect.
(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.
EXHIBIT 6(t)(4)
Matters to be covered by subsequent Company Counsel Opinions
(i) The Registration Statement has become effective under the Securities
Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(ii) The Registration Statement, at the time it became effective and the
Prospectus, as of the date of the Prospectus Supplement and at the filing of its
10-K (in each case, other than (i) the financial statements, including the notes
and schedules thereto, (ii) any other financial data and (iii) statistical data
that is found in or derived from the internal accounting records of the Company,
the Operating Partnership or their respective subsidiaries, in each case as set
forth or incorporated by reference therein, as to which no opinion need be
rendered), complied as to form in all material respects with the requirements of
the Securities Act and the Exchange Act.
In addition, Cahill Gordon & Reindel LLP shall, in a separate letter, state
that they have participated in conferences with officers and other
representatives of the Company and the Operating Partnership, representatives of
the independent registered public accounting firm for the Company and the
Operating Partnership and representatives of CF&Co. at which the contents of the
Registration Statement and the Prospectus and related matters were discussed. On
the basis thereof (relying as to materiality to a large extent upon the opinions
of officers and other representatives of the Company and the Operating
Partnership), but without independent verification by such counsel of, and
without passing upon or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus or any amendments or supplements thereto, no facts
have come to the attention of such counsel that lead them to believe that (i)
the Registration Statement, including the documents incorporated therein by
reference, at the time such Registration Statement became effective, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or (ii) the Prospectus, including the documents
incorporated therein by reference, as of its date or at the date of such letter,
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 (i) the
financial statements, including the notes and schedules thereto, (ii) any other
financial data or (iii) statistical data that is found in or derived from the
internal accounting records of the Company, the Operating Partnership or their
respective subsidiaries, in each case as set forth in or incorporated by
reference into the Registration Statement or the Prospectus).
EXHIBIT 6(s)
OFFICER CERTIFICATE
The undersigned, the President and Chief Executive Officer of First
Industrial Realty Trust, Inc., and Chief Financial Officer of First Industrial
Realty Trust, Inc. (the "Company") on behalf of itself and on behalf of First
Industrial, L.P. (the "Operating Partnership"), in their capacities as such
officers, pursuant to the Sales Agreement, dated September 16, 2004, among the
Company, the Operating Partnership, and Cantor Fitzgerald & Co. ("CF&Co.") (the
"Sales Agreement") providing for the sale to CF&Co. by the Company of up to an
aggregate of 3,900,000 shares of the Company's common stock, do hereby deliver
this Certificate pursuant to Section 6(s) of the Sales Agreement and do hereby
certify that:
(i) All the representations and warranties of the Company and the Operating
Partnership contained in the Sales Agreement are true and correct on the date
hereof, with the same force and effect as if made on and as of the date hereof;
and the Company and Operating Partnership have complied with all agreements and
conditions on its part to be performed or satisfied under the Sales Agreement at
or prior to the date hereof.
(ii) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus has 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 is in effect, and
no proceedings for that purpose have been commenced or are 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 is in effect and no proceedings for
that purpose have been commenced or are 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 have been complied with to the CF&Co.'s satisfaction.
(iii) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
change in the capital stock, partners' equity or long-term debt of the Company,
the Operating Partnership or any of the Subsidiaries on a consolidated basis,
except as described or contemplated in the Prospectus, or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, properties,
financial position, stockholders' equity, partners' equity or results of
operations of the Company, the Operating Partnership and the Subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of CF&Co. makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Placement Notice and the Prospectus; and
other than as set forth in the Prospectus, no proceedings shall be pending or,
to the knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or administrative
agency, where an unfavorable decision, ruling or finding could reasonably be
expected to result in a Material Adverse Effect.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Sales Agreement.
By:
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Name:
Title:
Date: _____________________________
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