EXHIBIT 1.1
First Industrial, L.P.
$100,000,000 of 6 1/2% Dealer remarketable securitiessm* ("Drs.sm") due 2011
Underwriting Agreement
March 26, 1998
J.P. MORGAN SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
First Industrial, L.P., a Delaware limited partnership (the "Operating
Partnership"), by this agreement (the "Agreement") proposes to issue and sell to
the underwriters named in Schedule II hereto (collectively, the "Underwriters"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), each as specified in Schedule I hereto, to be issued under the
indenture as supplemented by the fourth supplemental indenture thereto
(collectively, the "Indenture") between the Operating Partnership and First
Trust National Association, as trustee (the "Trustee").
The Operating Partnership and First Industrial Realty Trust, Inc., a
Maryland corporation and the sole general partner of the Operating Partnership
(the "Company"), have prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company
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* "Dealer remarketable(sm)" securities" and "Drs.sm" are service marks of
J.P. Morgan Securities Inc.
or the Operating Partnership, as the case may be. The Operating
Partnership also has filed with, or proposes to file with, the Commission
pursuant to Rule 424 under the Securities Act ("Rule 424") a prospectus
supplement specifically relating to the Securities (a "Prospectus Supplement").
The registration statement as amended to the date of this Agreement and
including any registration statement filed pursuant to Rule 462(b) under the
Securities Act (a "Rule 462(b) Registration Statement") is hereinafter referred
to as the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Registration Statement, the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
Each of the Company and the Operating Partnership hereby severally agrees
with the Underwriters as follows:
1. The Operating Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Operating Partnership the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Operating Partnership understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made to the Operating Partnership or
to its order in immediately available funds on the date and at the time and
place set forth in Schedule I hereto (or at such other time and place on the
same or such other date, not later than the third Business Day thereafter, as
you and the Operating Partnership may agree in
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writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, the Underwriters of the Securities registered in such
names and in such denominations as you shall request not less than two full
Business Days prior to the date of delivery, with any transfer taxes payable in
connection with transfer to the Underwriters duly paid by the Operating
Partnership. As used herein, the term "Business Day" means any day other than a
day on which banks are permitted or required to be closed in New York City or
the City of Chicago. The time and date of such payment and delivery with respect
to the Securities are referred to herein as the "Closing Date." The Securities
will be delivered through the book entry facilities of The Depository Trust
Company ("DTC") and will be made available for inspection by you by 1:00 P.M.
New York City time on the Business Day prior to the Closing Date at such place
in New York City as you, DTC and the Operating Partnership shall agree.
4. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and the Closing
Date that:
(a) The Company and the Operating Partnership meet the requirements
for use of Form S-3, and the Registration Statement has been declared
effective by the Commission;
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the
Prospectus and, if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at the time the Registration Statement became effective,
and when any post-effective amendment to the Registration Statement or Rule
462(b) Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will
comply in all material respects with all applicable provisions of the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (the "TIA") and will
contain all statements required to be stated therein in accordance with the
Securities Act and the TIA. The Prospectus, including the financial
statements, schedules and related notes included or incorporated by
reference in the Prospectus, and if applicable, any Term Sheet to the
Prospectus, as of the date hereof and at the time the Registration
Statement became effective, and at the Closing Date, and when any
post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement to
the Prospectus is filed with the Commission, did or will comply in all
material respects with all applicable provisions of the Securities Act and
the TIA and will contain all statements required to be stated therein in
accordance with the Securities Act and the TIA. On the date the
Registration Statement was declared effective, on the date hereof, on the
date of filing of any Rule 462(b) Registration Statement and on the Closing
Date, no part of the Registration Statement or any amendment did or will
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in or-
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der to make the statements therein not misleading. On the date the
Registration Statement was declared effective, on the date hereof, as of
its date, on the date of filing of any Rule 462(b) Registration Statement
and at the Closing Date, the Prospectus did not and will not contain an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the
Securities, the Company and the Operating Partnership will have complied or
will comply with the requirements of Rule 111 under the Securities Act
relating to the payment of filing fees therefor. The foregoing
representations and warranties in this Section 4(b) do not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification under the TIA (the "Form T-1"), and (ii) any
statements or omissions made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
or the Operating Partnership by the Underwriters specifically for inclusion
in the Registration Statement or Prospectus or any amendment or supplement
thereto. Neither the Company nor the Operating Partnership has distributed
any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the preliminary
prospectus, the Prospectus or any other materials, if any, permitted by the
Securities Act (which were disclosed to the Underwriters and the
Underwriters' counsel);
(c) Any preliminary prospectus supplements, filed pursuant to Rule 424
under the Securities Act and each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Securities Act; did not contain an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with the
offering of Securities will, at the time of such delivery, be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(d) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
Securities Act, at the time they were, or hereafter are, filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and, when read together with other
information included in, and incorporated by reference in, the Prospectus,
at the time the Registration Statement became effective, as of the date of
the Prospectus and as of the Closing Date, or during the period specified
in Section 5(e) did not and will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The fore-
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going representations and warranties in this Section 4(d) do not apply to
the Form T-1 or to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in
writing to the Company or the Operating Partnership by the Underwriters
specifically for inclusion in the Registration Statement or Prospectus or
any amendment or supplement thereto;
(e) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and
is in good standing with the State Department of Assessments and Taxation
of Maryland. The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under and by
virtue of the Delaware Uniform Limited Partnership Act. Each of First
Industrial Financing Partnership, L.P. (the "Financing Partnership"), First
Industrial Securities, L.P. ("Securities, L.P."), First Industrial Mortgage
Partnership, L.P. (the "Mortgage Partnership"), First Industrial
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services, L.P. ("DSG") and First Industrial
Pennsylvania Partnership, L.P. ("FIP") (the Financing Partnership,
Securities, L.P., the Mortgage Partnership, FII, FIH, DSG and FIP are
referred to collectively herein as the "Partnership Subsidiaries") has been
duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of
organization. F.R. Development Services, L.L.C. ("FRDS") has been duly
organized and is validly existing as a limited liability corporation in
good standing under and by virtue of the laws of its jurisdiction of
organization. Each of First Industrial Securities Corporation ("FISC"),
First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage
Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"),
First Industrial Indianapolis Corporation ("FIIC"), First Industrial
Harrisburg Corporation ("FIHC"), FI Development Services Corporation
("FIDSC"), FR Acquisitions, Inc. ("FRA") and First Industrial Management
Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHC,
FIDSC and FRA are referred to collectively herein as the "Corporate
Subsidiaries," and the Partnership Subsidiaries and the Corporate
Subsidiaries are referred to herein collectively as the "Subsidiaries"),
has been duly organized and is validly existing as a corporation in good
standing under and by virtue of the laws of its jurisdiction of
incorporation. Other than the Corporate Subsidiaries and the Partnership
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a "significant subsidiary"
under Rule 1-02 of Regulation S-X promulgated under the Exchange Act. The
Company is the sole general partner of the Operating Partnership. FIFC is a
wholly-owned subsidiary of the Company and is the sole general partner of
the Financing Partnership. FIM is a wholly-owned subsidiary of the Company
and is the sole general partner of the Mortgage Partnership. FISC is a
wholly-owned subsidiary of the Company and is the sole general partner of
Securities, L.P. The Operating Partnership and FISC are the only limited
partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the
Company and
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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. FIDSC is
a wholly-owned subsidiary of the Company and is the sole general partner of
DSG. FRDS is a wholly-owned subsidiary of the Operating Partnership. The
Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Company, the Operating
Partnership and each of the Subsidiaries has, and at the Closing Date will
have, full corporate or partnership power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate
all the properties and other assets owned, leased or operated by it and to
conduct its business in which it engages or proposes to engage as described
in the Registration Statement or the Prospectus and the transactions
contemplated hereby and thereby. The Company and each of the Corporate
Subsidiaries is, and at the Closing Date will be, duly qualified or
registered to do business and in good standing as a foreign corporation in
all jurisdictions in which the nature of the activities conducted by it or
the character of the properties and assets owned, leased or operated by it
makes such qualification or registration necessary, except where failure to
obtain such qualifications or registration will not have a 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 493 in service
properties owned, directly or indirectly, by the Company as of September
30, 1997, (the "Properties") taken as a whole, (ii) the issuance, validity
or enforceability of the Securities or the enforceability of the Indenture
or (iii) the consummation of any of the transactions contemplated by this
Agreement and/or the Indenture (each a "Material Adverse Effect"), which
jurisdictions of foreign qualification or registration are attached on
Schedule IV hereto. The Operating Partnership and each of the Partnership
Subsidiaries is, and at the Closing Date will be, duly qualified or
registered to do business and in good standing as a foreign limited
partnership in all jurisdictions in which the nature of the activities
conducted by it or the character of the assets owned, leased or operated by
it makes such qualification or registration necessary, except where failure
to obtain such qualifications or registration will not have a Material
Adverse Effect, which jurisdictions of foreign qualification or
registration are attached on Schedule IV hereto. Complete and correct
copies of the articles of incorporation and of the by-laws of the Company,
the certificate of limited partnership and agreement of limited partnership
of the Operating Partnership and the charter documents, partnership
agreements and other organizational documents of the Subsidiaries and all
amendments thereto as have been requested by the Underwriters or their
counsel have been delivered to the Underwriters or their counsel;
(f) The Securities have been duly authorized by the Company, as
general partner of the Operating Partnership, and, when authenticated and
delivered by the Trustee in accordance with the terms of the Indenture, and
paid for by the Under-
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writers pursuant to this Agreement, such Securities will be valid and
legally binding unsecured obligations of the Operating Partnership entitled
to the benefit of the Indenture and enforceable against the Operating
Partnership in accordance with their respective terms, subject to (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 Indenture has been duly
qualified under the Trust Indenture Act and prior to the issuance of the
Securities will be duly authorized, executed and delivered by the Operating
Partnership and the Company, and assuming due authorization, execution and
delivery thereof by the Trustee, will constitute a valid and legally
binding obligation of the Operating Partnership and the Company,
enforceable in accordance with its terms 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 Securities will conform, and the
Indenture will conform, to the statements relating thereto contained in the
Prospectus; and the Securities are in the form contemplated by the
Indenture;
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as general partner and a limited partner and the partnership
agreement of each Partnership Subsidiary will have been duly authorized,
validly executed and delivered by each partner thereto and (assuming in the
case of the Operating Partnership the due authorization, execution and
delivery of the partnership agreement by each limited partner other than
the Company) each such partnership agreement will be a valid, legally
binding and enforceable in accordance with its terms immediately following
the Closing Date subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be
brought. All of the issued and outstanding shares of capital stock of the
Company and each Corporate Subsidiary will have been duly authorized and
are validly issued, fully paid and non-assessable; and (except as described
in the Prospectus) will be owned directly or indirectly (except in the case
of the Company) by the Company or the Operating Partnership, as the case
may be, free and clear of all security interests, liens and encumbrances,
(except for pledges in connection with the loan agreements of the Company,
the Operating Partnership and the Subsidiaries) and all of the partnership
interests in each Partnership Subsidiary will have been
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duly authorized and are validly issued, fully paid, and (except as
described in the Prospectus) will be owned directly or indirectly by the
Company or the Operating Partnership, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with
the loan agreements of the Company, the Operating Partnership and the
Subsidiaries);
(h) The financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Registration Statement
and the Prospectus comply in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable, and present fairly
the consolidated financial condition of the entity or entities or group
presented or included therein, as of the respective dates thereof, and its
consolidated results of operations and cash flows for the respective
periods covered thereby, are all in conformity with generally accepted
accounting principles applied on a consistent basis throughout the entire
period involved, except as otherwise disclosed in the Prospectus. The
financial information and data included in the Registration Statement and
the Prospectus present fairly the information included or incorporated by
reference therein and have been prepared on a basis consistent, except as
may be noted therein, with that of the financial statements, schedules and
notes included or incorporated by reference in the Registration Statement
and the Prospectus and the books and records of the respective entity or
entities or group presented or included therein. Except as otherwise noted
in the Prospectus, pro forma and/or as adjusted financial information
included or incorporated by reference in the Prospectus has been prepared
in accordance with the applicable requirements of the Securities Act and
the American Institute of Certified Public Accountants ("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and
includes all adjustments necessary to present fairly the pro forma and/or
as adjusted financial condition of the entity or entities or group
presented or included therein at the respective dates indicated and the
results of operations and cash flows for the respective periods specified.
The Company's and the Operating Partnership's ratio of earnings to fixed
charges included in the Prospectus and in Exhibit 12 to the Registration
Statement have been calculated in compliance with Item 503(d) of Regulation
S-K of the Commission. No other financial statements (or schedules) of the
Company, the Operating Partnership and the Partnership Subsidiaries or any
predecessor of the Company and/or the Operating Partnership and the
Partnership Subsidiaries are required by the Act or the Exchange Act to be
included in the Registration Statement or the Prospectus. Coopers & Lybrand
L.L.P. (the "Accountants") who have reported on such financial statements,
schedules and related notes, are independent public accountants with
respect to the Company, the Operating Partnership and the Partnership
Subsidiaries as required by the Securities Act;
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
Closing Date,
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(i) there has not been and will not have been, except as set forth in or
contemplated by the Registration Statement and the Prospectus, any change
in the capitalization, long term or short term debt or in the capital stock
or equity of each of the Operating Partnership and the Company or any of
the Subsidiaries which would be material to the Operating Partnership, the
Company and the Subsidiaries considered as one enterprise (anything which
would be material to the Operating Partnership, the Company and the
Subsidiaries, considered as one enterprise, being hereinafter referred to
as "Material"), (ii) except as described in the Prospectus, neither the
Operating Partnership, the Company nor any of the Subsidiaries has incurred
nor will any of them incur any liabilities or obligations, direct or
contingent, which would be Material, nor has any of them entered into nor
will any of them enter into any transactions, other than pursuant to this
Agreement and the transactions referred to herein or as contemplated in the
Prospectus, which would be Material, (iii) there has not been any Material
Adverse Effect, (iv) except for regular quarterly distributions on the
Company's shares of common stock, par value $0.01 per share (the "Common
Stock"), and the dividends on the shares of the Company's (a) Series A
Cumulative Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), (b) Depositary Shares each representing 1/100 of a share
of 8 3/4 Series B Cumulative Preferred Stock (the "Series B Preferred
Stock"), (c) Depositary Shares each representing 1/100 of a share of 8_
Series C Cumulative Preferred Stock (the "Series C Preferred Stock"), (d)
Depositary Shares each representing 1/100 of a share of 7.95% Series D
Cumulative Preferred Stock (the "Series D Preferred Stock") and (e)
Depositary Shares each representing 1/100 of a share of 7.90% Series E
Cumulative Preferred Stock (the "Series E Preferred Stock") the Company has
not paid or declared and will not pay or declare any dividends or other
distributions of any kind on any class of its capital stock, and (v) except
for distributions in connection with regular quarterly distributions on
Units, the Operating Partnership has not paid any distributions of any kind
on its Units;
(j) Neither the Operating Partnership, the Company nor any of the
Subsidiaries is, or as of the Closing Date will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
(k) To the knowledge of the Company or the Operating Partnership,
except as set forth in the Registration Statement and the Prospectus, there
are no actions, suits, proceedings, investigations or inquiries, pending
or, after due inquiry, threatened against or affecting the Operating
Partnership, the Company or any of the Subsidiaries or any of their
respective officers or directors in their capacity as such or of which any
of their respective properties or assets or any Property is the subject or
bound, before or by any Federal or state court, commission, regulatory
body, administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect;
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(l) The Operating Partnership, the Company and each of the
Subsidiaries (i) has, and at the Closing Date will have, (A) all
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to carry on its business as contemplated in the
Prospectus and are in material compliance with such, and (B) complied in
all material respects with all laws, regulations and orders applicable to
it or its business and (ii) are not, and at the Closing Date will not be,
in breach of or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract, joint venture or partnership agreement or other
agreement or instrument (collectively, a "Contract or Other Agreement") or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of
its other assets or properties or by which the Properties are bound or
affected, except where such default, breach or failure will not, either
singly or in the aggregate, have a Material Adverse Effect. To the
knowledge of the Operating Partnership, the Company and each of the
Subsidiaries, after due inquiry, no other party under any Material contract
or other agreement to which it is a party is in default thereunder, except
where such default will not have a Material Adverse Effect. Neither the
Operating Partnership, the Company nor any of the Subsidiaries is, nor at
the Closing Date will any of them be, in violation of any provision of its
articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other organizational document, as the case may be;
(m) No Material consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body or any
other entity is required in connection with the offering, issuance or sale
of the Securities hereunder except such as have been obtained under the
Securities Act, the Exchange Act and the TIA and such as may be required
under state securities, Blue Sky or real estate syndication laws or the
by-laws, the corporate financing rule or the conflict of interests rule of
the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution by the Underwriters of the
Securities or such as have been received prior to the date of this
Agreement, and except for the filing of this Agreement and the Indenture
with the Commission as exhibits to a Form 8-K, which the Operating
Partnership and the Company agree to make in a timely manner;
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement and the
Remarketing Agreement between the Operating Partnership and J.P. Morgan
Securities Inc., as remarketing dealer with respect to the Purchased
Securities (as defined therein) (the "Remarketing Agreement"). Each of this
Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, constitutes a valid and binding agree-
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ment of the Company and the Operating Partnership and assuming due
authorization, execution and delivery by the Underwriters (in the case of
this Agreement) and J.P. Morgan Securities Inc. (in the case of the
Remarketing Agreement), is enforceable against the Operating Partnership in
accordance with the terms hereof and thereof subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any
proceeding therefor may be brought. The execution, delivery and performance
of this Agreement, the Remarketing Agreement and the Indenture and the
consummation of the transactions contemplated hereby and thereby, and
compliance by each of the Company, the Operating Partnership and the
Subsidiaries with its obligations hereunder and thereunder, will not result
in the creation or imposition of any lien, charge or encumbrance upon any
of the assets or properties of the Operating Partnership, the Company or
any of the Subsidiaries pursuant to the terms or provisions of, or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate
any of its obligations under, or result in the acceleration of any
obligation under, the certificate of incorporation, by-laws, certificate of
limited partnership, partnership agreement or other organizational
documents of the Operating Partnership, the Company or any of the
Subsidiaries, any Contract or Other Agreement to which the Operating
Partnership, the Company or any of the Subsidiaries is a party or by which
the Operating Partnership, the Company or any of the Subsidiaries or any of
their assets or properties are bound or affected, or violate or conflict
with any judgment, ruling, decree, order, statute, rule or regulation of
any court or other governmental agency (foreign or domestic) or body
applicable to the business or properties of the Operating Partnership, the
Company or any of the Subsidiaries or to the Properties, in each case
except for liens, charges, encumbrances, breaches, violations, defaults,
rights to terminate or accelerate obligations, or conflicts, the imposition
or occurrence of which would not have a Material Adverse Effect;
(o) As of the Closing Date, the Operating Partnership, the Company and
each of the Subsidiaries will have good and marketable title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are described in the Registration Statement or the
Prospectus, or such as secure the Company's loan facilities of the
Operating Partnership, the Company and the Subsidiaries, or would not
result in a Material Adverse Effect;
(p) To the knowledge of the Company and the Operating Partnership: (i)
no lessee of any portion of the Properties is in default under any of the
leases governing such Properties and there is no event which, but for the
passage of time or
-11-
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 Operating Partnership, the Company and the Partnership
Subsidiaries have property, title, casualty and liability insurance in
favor of the Operating Partnership, the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Operating Partnership, the Company and the Partnership
Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks;
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Operating Partnership, the Company and
the Subsidiaries, after due inquiry, the operations of the Operating
Partnership, the Company and the Subsidiaries are in compliance with all
Environmental Laws (as defined below) and all requirements of applicable
permits, licenses, approvals and other authorizations issued pursuant to
Environmental Laws; (ii) to the knowledge of the Operating Partnership, the
Company and the Subsidiaries, after due inquiry, none of the Operating
Partnership, the Company or the Subsidiaries has caused or suffered to
occur any Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from any
Property, and no condition exists on, in, under or adjacent to any Property
that could reasonably be expected to result in the incurrence of
liabilities under, or any violations of, any Environmental Law or give rise
to the imposition of any Lien (as defined below), under any Environmental
Law; (iii) none of the Operating Partnership, the Company or the
Subsidiaries has received any written notice of a claim under or pursuant
to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (iv) none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
of, or received any written notice from any Governmental Authority (as
defined below) claiming, any violation of any Environmental Law or a
determination to undertake and/or request the investigation, remediation,
clean-up or removal of any Hazardous Substance released into the
Environment on, in, under or from any Property; and (v) no Property is
included or, to the knowledge of the Operating Partnership, the Company or
the
-12-
Subsidiaries, after due inquiry, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA"), or included on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that any Property has otherwise been identified in a published writing by
the EPA as a potential CERCLA removal, remedial or response site or, to the
knowledge of the Company and its Subsidiaries, is included on any similar
list of potentially contaminated sites pursuant to any other Environmental
Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCB's, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is subject to regulation under any Environmental
Law (including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
ss. 172.101, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 302); "Environment" shall mean any surface
water, drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss.
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), and all other
federal, state and local laws, ordinances, regulations, rules and orders
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal,
state or local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law; "Lien"
shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such Property;
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.
-13-
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was
employed for such purpose on a contingent basis or has any substantial
interest in the Operating Partnership, the Company or any of the
Subsidiaries, and none of them nor any of their directors, officers or
employees is connected with the Operating Partnership, the Company or any
of the Subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee.
(s) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so as to qualify as a real estate
investment trust ("REIT") under Sections 856 through 860 of the Code, as
amended (the "Code"), and have elected to be taxed as a REIT under the Code
commencing with the taxable year ending December 31, 1994. The Company, the
Operating Partnership and the Subsidiaries intend to continue to qualify as
a REIT for the foreseeable future;
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, except for the filing of this Agreement and
the Indenture with the Commission as exhibits to a Form 8-K, which the
Company agrees to make in a timely manner, and the descriptions thereof or
references thereto are accurate in all material respects;
(u) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
is any such dispute threatened which would be Material;
(v) The Operating Partnership, the Company and the Subsidiaries own,
or are licensed or otherwise have the full exclusive right to use, all
material trademarks and trade names which are used in or necessary for the
conduct of their respective businesses as described in the Prospectus. To
the knowledge of the Company or the Operating Partnership, no claims have
been asserted by any person to the use of any such trademarks or trade
names or challenging or questioning the validity or effectiveness of any
such trademark or trade name. The use, in connection with the business and
operations of the Operating Partnership, the Company and the Subsidiaries,
of such trademarks and trade names does not, to the Company's or the
Operating Partnership's knowledge, infringe on the rights of any person;
(w) Each of the Operating Partnership, the Company and the
Subsidiaries has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
the failure to so file would not result in a Material Adverse Effect) and
has paid all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the fore-
-14-
going would otherwise be delinquent, except, in all cases, for any such
tax, assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect;
(x) The Operating Partnership and each of the Partnership Subsidiaries
is properly treated as a partnership for federal income tax purposes and
not as a "publicly traded partnership";
(y) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of the
Company, the Operating Partnership or the Subsidiaries on the other hand,
which is required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
(aa) The Company and the Operating Partnership have not taken and will
not take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of
the price of the Securities, and the Company and the Operating Partnership
have not distributed and have agreed not to distribute any prospectus or
other offering material in connection with the offering and sale of the
Securities other than the Prospectus, any preliminary prospectus filed with
the Commission or other material permitted by the Securities Act (which
were disclosed to you and your counsel);
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets, financial and corporate books and records is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(cc) Any certificate or other document signed by any officer or
authorized representative of the Operating Partnership, the Company or any
Subsidiary, and delivered to the Underwriters or to counsel for the
Underwriters in connection with the sale of the Securities shall be deemed
a representation and warranty by such entity or person, as the case may be,
to each Underwriter as to the matters covered thereby;
(dd) The Securities will have an investment grade rating from one or
more nationally recognized statistical rating organization at each
applicable Representation Date as specified in Schedule I hereto; and
-15-
(ee) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been instituted, or to the
knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the Prospectus or any preliminary
prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
5. Each of the Company and the Operating Partnership covenants and agrees
with each Underwriter as follows:
(a) In respect of the offering of the Securities, the Operating
Partnership will (i) prepare a Prospectus Supplement setting forth the
aggregate principal amount of Securities covered thereby and their terms
not otherwise specified in the Basic Prospectus pursuant to which the
Securities are being issued, the names of the Underwriters participating in
the offering and the aggregate principal amount of Securities which each
severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Operating
Partnership, the initial public offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters and the
Operating Partnership deem appropriate in connection with the offering of
the Securities, (ii) file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act no later than the Commission's close
of business on the second Business Day following the date of determination
of the offering price of the Securities and (iii) furnish copies of the
Prospectus to the Underwriters and to such dealers as you shall specify in
New York City prior to 10:00 A.M., New York City time, as soon as
practicable after the date of this Agreement in such quantities as you may
reasonably request;
(b) The Operating Partnership will comply with the Securities Act and
the Exchange Act so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration
Statement and the Prospectus. At any time when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act in connection
with sales of Securities, the Operating Partnership will advise you
promptly and, if requested by you, confirm such advice in writing, of (i)
the effectiveness of any amendment to the Registration Statement (ii) the
transmittal to the Commission for filing of any Prospectus or other
supplement or amendment to the Prospectus to be filed pursuant to the
Securities Act, (iii) the receipt of any comments from the Commission
relating to the Registration Statement, any preliminary prospectus, the
Prospectus or any of the transactions contemplated by this Agreement, (iv)
any request by the Commission for post-
-16-
effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of the suspension of qualification of the
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purposes, and (vi) the happening of any event which
makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Operating Partnership will make
every reasonable effort to prevent the issuance of any stop order and if at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Operating Partnership will
make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time;
(c) The Operating Partnership will furnish to you without charge, one
signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and
documents incorporated by reference, and to furnish to you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it and document incorporated by reference, as you may
reasonably request. If applicable, the copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(d) At any time when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of
Securities, not to file any amendment to the Registration Statement or any
Rule 462(b) Registration Statement or to make any amendment or supplement
to the Prospectus or any Term Sheet, if applicable, of which you shall not
previously have been advised or to which you or counsel for the
Underwriters shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of counsel
for the Underwriters, may be necessary in connection with the distribution
of the Securities by you, and to use its best efforts to cause the same to
become promptly effective. If applicable, the Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(e) If, at any time when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
Securities, any event shall occur as a result of which, in the opinion of
counsel for the Underwrit-
-17-
ers, it becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with any law,
the Operating Partnership will forthwith prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus (in
form and substance reasonably satisfactory to counsel for the Underwriters)
so that the statements in the Prospectus, as so amended or supplemented,
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing when it is so delivered, not
misleading, or so that the Prospectus will comply with any law, and to
furnish to each Underwriter and to such dealers as you shall specify, such
number of copies thereof as such Underwriter or dealers may reasonably
request;
(f) The Operating Partnership will use its best efforts, in
cooperation with the Underwriters, to qualify, register or perfect
exemptions for the Securities for offer and sale by the several
Underwriters to qualified institutions under the applicable state
securities, Blue Sky and real estate syndication laws of such jurisdictions
as you may reasonably request; provided, however, the Operating Partnership
will not be required to qualify as a foreign limited partnership, file a
general consent to service of process in any such jurisdiction, subject
itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject, or provide any undertaking or make
any change in its partnership agreement that the general partner of the
Operating Partnership reasonably determines to be contrary to the best
interests of the Operating Partnership and its unitholders. In each
jurisdiction in which the Securities have been so qualified or registered,
the Operating Partnership will use all reasonable efforts to file such
statements and reports as may be required by the laws of such jurisdiction,
to continue such qualification or registration in effect for so long a
period as the Underwriters may reasonably request for the distribution of
the Securities and to file such consents to service of process or other
documents as may be necessary in order to effect such qualification or
registration; provided, however, the Operating Partnership will not be
required to qualify as a foreign limited partnership, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject, or provide any undertaking or make any change in
its partnership agreement that the general partner of the Operating
Partnership reasonably determines to be contrary to the best interests of
the Operating Partnership and its unitholders;
(g) To make generally available to the holders of the Securities as
soon as reasonably practicable but not later than sixty days after the
close of the period covered thereby (ninety days in the event the close of
such period is the close of the Operating Partnership's fiscal year), an
earnings statement (in form complying with
-18-
the provisions of Rule 158 of the Securities Act) covering a period of at
least twelve months after the effective date of the Registration Statement
(but in no event commencing later than ninety days after such date) which
shall satisfy the provisions of Section 11(a) of the Securities Act, and,
if required by Rule 158 of the Securities Act, to file such statement as an
exhibit to the next periodic report required to be filed by the Operating
Partnership under the Exchange Act covering the period when such earnings
statement is released;
(h) During the period of five years after the date of this Agreement,
the Company and the Operating Partnership will furnish to you as soon as
available (x) a copy of each regular and periodic report, financial
statement or other publicly available information of the Operating
Partnership, the Company and any Subsidiary mailed to the holders of the
Securities or filed with the Commission or any securities exchange and (y)
such other publicly available information concerning the Operating
Partnership, the Company and any Subsidiary as you may reasonably request;
(i) During the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
the Securities, to file all documents required to be filed by it with the
Commission pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act;
(j) The Operating Partnership will pay all costs, expenses, fees and
taxes incident to (i) the preparation, printing, filing and distribution
under the Securities Act of the Registration Statement and any amendment
thereto (including financial statements and exhibits), each preliminary
prospectus, the Prospectus and all amendments and supplements to any of
them prior to or during the period specified in Section 5(e), (ii) the
printing and delivery of this Underwriting Agreement, the Indenture, the
Remarketing Agreement, any Supplemental Indentures and the Blue Sky
Memorandum, (iii) the qualification or registration of the Securities for
offer and sale under certain limited securities, Blue Sky or real estate
syndication laws of certain states in accordance with Section 5(f) hereof,
(iv) the fee of and the filings and clearance, if any, with the NASD in
connection with the Offering, (v) the fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (vi)
furnishing such copies of the Registration Statement, the preliminary
prospectus, the Prospectus and all amendments and supplements thereto as
may be requested for use in connection with the offering or sale of the
Securities by the Underwriters or by dealers to whom Securities may be
sold, (vii) the preparation, issuance and delivery of certificates for the
Securities to the Underwriters, (viii) the costs and charges of any
transfer agent or registrar, (ix) the costs and expenses of the Trustee
under the Indenture, (x) any expenses incurred by the Operating Partnership
in connection with a "road show" presentation to potential investors, (xi)
any transfer taxes imposed on the sale by the Operating Partnership of the
Securities to
-19-
the Underwriters and (xii) the fees and disbursements of the Operating
Partnership's counsel and accountants;
(k) The Operating Partnership will use its best efforts to do and
perform all things required to be done and performed under this Agreement
by the Operating Partnership prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities;
(l) The Operating Partnership will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus
Supplement under "Use of Proceeds";
(m) The Operating Partnership will prepare and file or transmit for
filing with the Commission in accordance with Rule 424(b) of the Securities
Act copies of the Prospectus;
(n) The Operating Partnership 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 Operating Partnership's general partner determines that it is no
longer in the best interests of the Operating Partnership to be so
qualified;
(o) To take all reasonable action necessary to enable Standard &
Poor's Corporation ("S&P"), Moody's Investors Service, Inc ("Moody's"),
Fitch Investors Services, L.P. or any other nationally recognized rating
organization to provide their respective credit ratings of the Securities,
as specified in Schedule I hereto; and
(p) The Operating Partnership and the Company will execute a
supplemental indenture (a "Supplemental Indenture") designating each series
of debt securities to be offered and its related terms and provisions in
accordance with the provisions of the Indenture.
6. The several obligations of the Underwriters hereunder shall be subject
to the performance by the Company and the Operating Partnership of their
respective obligations hereunder and to the following conditions:
(a) the Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by such Rule; no stop
order suspending the effectiveness of the Registration
-20-
Statement or the Prospectus shall be in effect, and no proceedings for such
purpose shall have been commenced or shall be pending before or threatened
by the Commission to the knowledge, after due inquiry, of the Company or
the Operating Partnership; no stop order suspending the effectiveness of
the Registration Statement or the Prospectus shall be in effect and no
proceedings for such purpose shall have been commenced or shall be pending
before or threatened by the state securities authority of any jurisdiction,
to the knowledge of the Company or the Operating Partnership; and all
requests for additional information on the part of the Commission shall
have been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and
correct, in all material respects, on the Closing Date, with the same force
and effect as if made on and as of the Closing Date and the Company and the
Operating Partnership shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company or the Operating Partnership by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any
material change in the capital stock, partners' equity or long-term debt of
the Company, the Operating Partnership or any of the Subsidiaries on a
consolidated basis, except as described or contemplated in the Prospectus,
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, properties, financial position, stockholders'
equity, partners' equity or results of operations of the Company, the
Operating Partnership and the Subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which in
your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus and/or the Indenture; and other than
as set forth in the Prospectus, no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a
certificate signed by the Chairman of the Board of Directors or President
or Chief Executive Officer of the Company and the Chief Financial or
Accounting Officer of the Company, in their capacities as officers of the
Company, on behalf of the Company for
-21-
itself and as general partner of the Operating Partnership, satisfactory to
you to the effect set forth in subsections (a) through (d) of this Section
and to the further effect that there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity, partners' equity or
results of operations of the Operating Partnership, the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f) you shall have received on the Closing Date, an opinion or
opinions (satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the Company and the
Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule IV hereto. Each
of FIFC and FISC 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 IV hereto.
(ii) The Operating Partnership and each of the Financing
Partnership and Securities, L.P. 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
Financing Partnership and Securities, L.P. has all requisite
partnership power and authority to own, lease and operate its
properties and other assets, to conduct the business in which it is
engaged and proposes to engage, in each case, as described in the
Prospectus, and the Operating Partnership has the partnership power to
enter into and perform its obligations under this Agreement and the
Indenture. The Operating Partnership and each of the Financing
Partnership and Securities, L.P. is duly qualified or registered as a
foreign partnership and is in good standing in each jurisdiction
identified with an asterisk in Schedule IV hereto.
(iii) Intentionally omitted.
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P.,
FIFC or FISC is in violation of or default under its charter, by-laws,
certificate of limited partnership or partnership agreement, as the
case may be, and none of such entities is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any document (as in effect on the date of such
opinion) listed as an exhibit to the Registration Statement, each of
the
-22-
Company's and the Operating Partnership's Annual Report on Form 10-K,
as amended, if applicable, and each of the Company's and the Operating
Partnership's most recent Quarterly Report on Form 10-Q, as amended,
if applicable, to which such entity is a party or by which such entity
may be bound, or to which any of the property or assets of such entity
or any Property is subject to or bound by (it being understood that
(i) such counsel need express no opinion with respect to matters
relating to any contract, indenture, mortgage, loan agreement, note
lease, joint venture or partnership agreement or other instrument or
agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document), except in each case for violations or defaults which in the
aggregate are not reasonably expected to have a Material Adverse
Effect.
(v) This Agreement was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership.
(vi) The Remarketing Agreement has been duly authorized, executed
and delivered by the Operating Partnership and constitutes a valid and
legally binding instrument of it enforceable against it in accordance
with its terms, except that the enforceability thereof may be limited
by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) the
enforceability of rights in indemnity and contribution thereunder may
be limited by federal or state securities laws or principles of public
policy.
(vii) The issuance of the Securities has been duly authorized by
the Company on behalf of the Operating Partnership, and when executed
and authenticated by the Trustee in accordance with the terms of the
Indenture, and delivered to, and paid for by, the Underwriters in
accordance with the terms of this Agreement, such Securities will
constitute valid and legally binding obligations of the Operating
Partnership entitled to the benefits provided for in the Indenture,
enforceable against the Operating Partnership in accordance with their
terms.
(viii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership
and assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and legally binding agreement of the
Company and the Operating Partnership, enforceable against the Company
and the Operating Partnership in ac-
-23-
cordance with its terms; and the Indenture has been duly qualified
under the TIA.
(ix) The Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus under the captions "Description of Drs." and
"Description of Debt Securities."
(x) The Registration Statement has been declared effective under
the Securities Act and the Indenture has been qualified under the TIA,
the Prospectus was filed with the Commission pursuant to Rule 424
within the applicable time period prescribed by Rule 424 and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or the Prospectus has been issued and no
proceeding for that purpose is pending or threatened by the
Commission.
(xi) The execution and delivery of this Agreement, the Indenture
and the Remarketing Agreement, the issuance and sale of the Securities
and the performance by the Company and the Operating Partnership of
their respective obligations under the Securities, this Agreement, the
Indenture and the Remarketing Agreement and the consummation of the
transactions herein and therein contemplated will not require, to such
counsel's knowledge, any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the Securities
Act, the TIA and the state securities, Blue Sky or real estate
syndication laws in connection with the purchase and distribution of
the Securities by the Underwriters) and did not and do not conflict
with or constitute a breach or violation of or default under: (1) any
document (as in effect on the date of such opinion) listed as an
exhibit to the Registration Statement, each of the Company's and the
Operating Partnership's Annual Report on Form 10-K, as amended, if
applicable, and each of the Company's and the Operating Partnership's
most recent Quarterly Report on Form 10-Q, as amended, if applicable,
to which any such entity is a party or by which it or any of them or
any of their respective properties or other assets may be bound or
subject and of which such counsel is aware (it being understood that
(i) such counsel need express no opinion with respect to matters
relating to any contract, indenture, mortgage, loan agreement, note
lease, joint venture or partnership agreement or other instrument or
agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document); (2) the certificate of limited partnership or partnership
agreement, as the case may be, of the Operating Partnership, the
Financing Partnership, and Securities, L.P. or the articles of
incorporation or bylaws, as the case may be, of the Company, FIFC or
-24-
FISC; (3) any applicable law, rule or administrative regulation,
except in each case for conflicts, breaches, violations or defaults
that in the aggregate would not have a Material Adverse Effect.
(xii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any court or governmental
authority or agency or any other entity is required in connection with
the offering, issuance or sale of the Securities hereunder, except
such as may be required under the Securities Act, the TIA or the
by-laws, corporate financing rule and conflict of interest rule of the
NASD, or state securities, blue sky or real estate syndication laws,
or such as have been received prior to the date of such opinion.
(xiii) The Registration Statement, at the time it became
effective and the Prospectus, as of the date of the Prospectus
Supplement (in each case, other than the Form T-1 and the financial
statements and supporting schedule and other financial and statistical
data included or incorporated by reference therein, as to which no
opinion need be rendered), complied as to form in all material
respects with the requirements of the Securities Act and the Exchange
Act.
(xiv) Each of the Underwriters is receiving good, valid and
marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities if the Underwriters acquire such Securities in good faith and
without notice of any such security interests, mortgages, pledges,
liens, encumbrances, claims or equities.
(xv) Intentionally omitted.
(xvi) To such counsel's knowledge, there is no document or
contract of a character required to be described or referred to in the
Registration Statement and Prospectus or to be filed as exhibits
thereto by the Securities Act other than those described or referred
to therein or filed as exhibits thereto, and the descriptions thereof
or references thereto are accurate in all material respects.
(xvii) The partnership agreement of each of the Operating
Partnership, Securities, L.P. and the Financing Partnership has been
duly authorized, validly executed and delivered by each of the Company
and the Subsidiaries, to the extent they are parties thereto, and is
valid, legally binding and enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and of general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
-25-
(xviii) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on
Form S-3 under the Act.
(xix) None of the Company, the Corporate Subsidiaries or the
Partnership Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
In addition, Cahill Gordon & Reindel shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and permit the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
In addition, Cahill Gordon & Reindel shall state that it has participated
in conferences with officers and other representatives of the Company, the
Operating Partnership and the Subsidiaries, representatives of the independent
public accountants for the Company and the Operating Partnership and the
Subsidiaries and representatives of the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed. On the basis thereof, but without independent verification by such
counsel of, and without passing upon or assuming any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement, including the documents
incorporated therein by reference, at the time such Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the Prospectus, as of its
date or at the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, schedules and other financial
and statistical data included in the Registration Statement or the Prospectus or
the Form T-1).
In giving its opinion, such counsel may rely (i) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Operating Partnership,
the Corporate Subsidiaries and the Partnership Subsidiaries, (ii) as to matters
of Maryland law, on the opinion of McGuire, Woods, Battle & Boothe, L.L.P.,
Baltimore, Maryland, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, (iii) as to matters of Illinois
law, on the opinion of Barack Ferrazzano Kirschbaum, Perlman & Nagelberg,
Chicago, Illinois, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, and (iv) as to the good standing
and qualification of the Company, the Operating Partnership, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate government officials or opinions
of counsel in such jurisdictions. Counsel need express no opinion (A) as to the
-26-
enforceability of forum selection clauses in the federal courts or (B) with
respect to the requirements of, or compliance with, any state securities or
"Blue Sky" or real estate syndication laws;
(g) You shall have received on the Closing Date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of McGuire, Woods, Battle & Boothe, L.L.P., special
Maryland counsel for the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its respective jurisdiction of
incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has
corporate power and authority to own, lease and operate its
properties and other assets and to conduct the business in which
it is engaged or proposes to engage, in each case, as described
in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this
Agreement and the Indenture.
(iii) The issuance of Securities have been duly authorized
by the Company on behalf of the Operating Partnership.
(iv) Each of this Agreement, the Indenture and the
Remarketing Agreement was duly and validly authorized, executed
and delivered by the Company, on behalf of itself and the
Operating Partnership.
(v) The execution and delivery of this Agreement and the
Indenture, the performance of the obligations and the
consummation of the transaction set forth herein and therein by
the Company will not require, to the knowledge of such counsel,
any consent, approval, authorization or other order of any
Maryland court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
Securities Act or other securities laws) and did not and do not
conflict with or constitute a breach or violation of or default
under: (A) the charter or by-laws, as the case may be, of the
Company; and (B) any applicable Maryland law, rule or
administrative regulation or any order or administrative or court
decree of which such counsel is aware, except in each case for
conflicts, breaches, violations or defaults that in the aggregate
would not have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any Maryland court,
governmental authority, agency or other entity is required in
connection with the offering, issuance or
-27-
sale of the Securities hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication
laws.
(vii) The information in the Prospectus under "Description
of Debt Securities," "Certain Provisions of Maryland Law and The
Company's Articles of Incorporation and Bylaws" and "Restrictions
on Transfers of Capital Stock" and in Part II of the Registration
Statement under Item 15, to the extent that it constitutes
statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has
been reviewed by such counsel and, as to Maryland law, is correct
in all material respects and presents fairly the information
required to be disclosed therein.
(viii) The Company and each of the Corporate Subsidiaries
was authorized to enter into the partnership agreement of each
Partnership Subsidiary for which the Company or such Corporate
Subsidiary, as the case may be, is the general partner.
(h) You shall have received on the Closing date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Barack Ferrazzano Kirschbaum Perlman & Nagelberg,
special Illinois counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company,
FRA, the Operating Partnership, FIMC, the Mortgage Partnership,
FIH, FII, FIHC and FIIC 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 (A)
the consummation of (1) a certain revolving credit facility made
available to the Operating Partnership by The First National Bank
of Chicago and Union Bank of Switzerland, New York Branch
("UBS"), on behalf of themselves and as agents for various
co-lenders; and (2) a certain mortgage loan made available to the
Mortgage Partnership by Nomura Asset Capital Corporation; (B) the
assumption by the Operating Partnership of a certain mortgage
loan from PFL Life Insurance Company made available to Fourth
Brookville Associates Limited Partnership; (C) the assumption by
the Operating Partnership of a certain loan from Monumental Life
Insurance Company made available to Lincoln Center Associates
Limited Partnership; (D) the assumption by the Operating
Partnership of a certain loan from Sun Life Assurance Company of
Canada made available to Sealy James Park, L.L.C.; (E) the
assumption by the Operating Partnership of a certain mortgage
loan from American National Insurance Company made available to
American National Bank and Trust Company of Chicago, as Trustee
under Trust No. 113913-07; (F) the assumption by the Operating
Partnership of a certain mortgage loan from State Street Bank and
Trust Company, as Trustee for Holders of Commercial Mortgage
Pass-Through Certificates, acting by
-28-
and through Lutheran Brotherhood, its duly authorized
Attorney-in-Fact, made available to Walglen Investments Limited;
(G) the origination of a certain mortgage loan made available to
the Operating Partnership and Indianapolis, L.P. by Connecticut
General Life Insurance Company; and (H) the acquisition of
property by the Operating Partnership subject to a certain
mortgagee loan from Smithkline Beecham Clinical Laboratories,
Inc. made available to 290 Industrial Co., LLC (all such
indebtedness referenced in (A) through (H), collectively, the
"Credit Documents") and (b) various pending agreements of
purchase and sale into which FR Acquisitions, Inc. has entered
into for the purchase of certain real properties (collectively,
the "Pending Contracts"), except in each case for defaults that,
in the aggregate, are not reasonably expected to have a Material
Adverse Effect.
(ii) The execution and delivery of this Agreement and the
Indenture and the performance of the obligations set forth herein
and therein by the Company and the Operating Partnership did not
and do not conflict with, or constitute a breach or violation of,
or default under: (A) any or all of the Credit Documents and the
Pending Contracts; (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,
FRA, the Operating Partnership, FIH, FII, the Mortgage
Partnership, FIHC, FIMC and FIIC, 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 Prospectus Supplement under
"Prospectus Supplement Summary--Recent Developments" and in the
10-K under Item 2 "The Properties--Mortgage Loans" (other than
information relating to a certain mortgage loan made available to
First Industrial Financing Partnership, L.P. by Nomura Asset
Capital Corporation) to the extent that it constitutes statements
of law, descriptions of statutes, summaries of principal
financing terms of Credit Documents or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects and presents fairly the information disclosed therein.
(i) On the date hereof, Coopers & Lybrand L.L.P. shall have
furnished to the Underwriters a letter, dated the date of its
delivery, addressed to the Underwriters and in form and substance
satisfactory to the Underwriters (and to its counsel), confirming that
they are independent public accountants with respect to the Op-
-29-
erating Partnership, the Company and the Subsidiaries as required by
the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement and the Prospectus and containing statements and information
of the type ordinarily included in accountants' "comfort letters" as
set forth in the AICPA's Statement on Auditing Standards 72. At the
Closing Date, Coopers & Lybrand L.L.P. shall have furnished to the
Underwriters a letter, dated the date of its delivery, which shall
confirm, on the basis of a review in accordance with the procedures
set forth in the letter from it, that nothing has come to its
attention during the period from the date of the letter referred to in
the prior sentence to a date (specified in the letter) not more than
five days prior to the Closing Date, which would require any change in
its letter dated the date hereof if it were required to be dated and
delivered at the Closing Date;
(j) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Rogers & Wells LLP ("Rogers & Wells"), counsel
for the Underwriters, as to the matters referred to in clause (i)
(with respect to the Company only) of Section 6(g) and clauses (ii)
(with respect to the Operating Partnership and the first sentence
only), (v), (vii) (with respect to the first subclause only), (viii),
(ix) (with respect to "Description of Debt Securities" only) (xiii)
and (xiv) of Section 6(f) and in addition, Rogers & Wells shall make
statements similar to those contained in the second paragraph
following Section 6(f)(xix) hereto and shall be entitled to rely on
those persons described in the third paragraph following Section
6(f)(xix) hereto with respect to the matters described therein.
(k) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Davis, Polk & Wardwell, special counsel to the
Underwriters, as to the matters referred to in clauses (vii) (except
for the first subclause thereof), (ix) (with respect to the
"Description of Drs. only) and (xvi) (with respect to "Certain United
States Federal Income Tax Considerations" and "Description of
Drs.-General,-Mandatory Tender of Drs.,-Remarketing,-Repurchase and
-Redemption" only) of Section 6(f).
(l) On or prior to the Closing Date, the Operating Partnership
shall have executed and delivered the Remarketing Agreement in a form
and manner acceptable to J.P. Morgan Securities Inc., as remarketing
dealer thereunder.
(m) At the Closing Date, the Securities shall have the ratings
accorded by any "nationally recognized statistical organization," as
defined by the Commission for purposes of Rule 436(g)(2) under the Act
if and as specified in Schedule I hereto, and the Operating
Partnership shall have delivered to J.P. Morgan Securities Inc. a
letter, dated as of such date, from each such rating organization, or
other evidence satisfactory J.P. Morgan Securities Inc., confirming
that the Securities have such ratings. Since the date hereof, there
shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company's securities or the Oper-
-30-
ating Partnership's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of the Securities or any of the Company's securities or the
Operating Partnership's other securities.
(n) If the Registration Statement or an offering of Securities
has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(o) At the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities, as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Operating Partnership and the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to Rogers & Wells, counsel for the
Underwriters.
7. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly for
use therein; provided, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement is
eliminated or
-31-
remedied in the Prospectus (as amended or supplemented if the Company or the
Operating Partnership shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person, provided
further that the Company and the Operating Partnership shall have complied with
their obligations under Section 5(a) hereof with respect to the Prospectus (as
so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors who sign the Registration
Statement and each person who controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Operating Partnership to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company and the
Operating Partnership in writing by such Underwriter through you expressly for
use in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. For purposes of this Section 7 and
Section 4(b), the only written information furnished by the Underwriters to the
Company expressly for use in the Registration Statement and the Prospectus is
(a) the names of the Underwriters on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
stabilization on the inside front cover page of the Prospectus specifically
relating to the Securities, (c) the information in the second paragraph on page
S-12, and (d) the information in the chart, and the third and sixth paragraphs
under the caption "Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with
-32-
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by J.P.
Morgan Securities Inc. and any such separate firm for the Company, the Operating
Partnership, their directors, their officers who sign the Registration Statement
and such control persons of the Company and the Operating Partnership or
authorized representatives shall be designated in writing by the Company or the
Operating Partnership. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (a) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand and the Underwrit-
-33-
ers on the other hand from the offering of the Securities or (b) if the
allocation provided by clause (a) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (a) above but also the relative fault of the Company and
the Operating Partnership on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
Operating Partnership and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company and the Operating Partnership on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Operating Partnership on
the one hand or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint,
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Operating Partnership and (c)
acceptance of and payment for any of the Securities.
-34-
8. Notwithstanding anything herein contained, this Agreement may be
terminated in your absolute discretion by notice given to the Operating
Partnership, if after the execution and delivery of this Agreement and prior to
the Closing Date (a) the Company and the Operating Partnership shall have
failed, refused or been unable, at or prior to the Closing Date, to perform any
agreements on its part to be performed hereunder, (b) any other conditions to
the Underwriters' obligations hereunder are not fulfilled, (c) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (d) trading of any
securities of or guaranteed by the Company and the Operating Partnership shall
have been suspended on any exchange or in any over-the-counter market, (e) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities; or (f) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Operating Partnership for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Operating
Partnership. In any such case either you or the Company and the Operating
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
-35-
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company and the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company and the Operating
Partnership shall be unable to perform their obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the Company
and the Operating Partnership agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 5(k) and
7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by J.P. Morgan Securities Inc. alone on behalf of the Underwriters, and any such
action taken by you jointly or by J.P. Morgan Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Underwriters, c/o J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260, Attention: Syndicate Department,
with a copy to Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166,
Attention: Robert E. King, Jr., Esq. Notices to the Company shall be given to it
at First Industrial Realty Trust, Inc., 311 South Wacker Drive, Suite 4000,
Chicago, Illinois, 60606, Attention: Michael T. Tomasz, with a copy to Cahill
Gordon & Reindel, 80 Pine Street, New York, New York, 10005, Attention: Gerald
S. Tanenbaum, Esq.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
-36-
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
-----------------------------------------
Name: Gary H. Heigl
Title: Senior Vice President - Capital
Markets
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Gary H. Heigl
-----------------------------------------
Name: Gary H. Heigl
Title: Senior Vice president - Capital
Markets
Accepted: March 26, 1998
J.P. MORGAN SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
By: J.P. MORGAN SECURITIES INC., on behalf of itself and
the several Underwriters listed in Schedule II hereto
By: /s/ Patricia Lunka
-------------------------------
Name: Patricia Lunka
Title: Vice President
-37-
SCHEDULE I
Underwriters: J.P. Morgan Securities Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation Merrill
Lynch, Pierce Fenner & Smith
Incorporated UBS Securities
LLC
Underwriting Agreement dated: March 26, 1998
Registration Statement No.: 333-43641
Title of Securities: 6 1/2% Dealer remarketable
securities ("Drs.") due 2011
Aggregate principal amount: $100,000,000
Price to Public: 99.753% of the principal
amount of the Drs., plus
accrued interest, if any,
from March 31, 1998.
Purchase Price: 99.303% of the principal
amount of the Drs., plus
accrued interest, if any,
from March 31, 1998.
Indenture: Indenture dated as of May 13,
1997 and the Fourth
Supplemental Indenture to be
dated as of March 31, 1998,
both between the Company,
the Operating Partnership and
the Trustee.
Maturity: April 5, 2011
Interest Rate: 6 1/2% until the Remarketing
Date. Thereafter, if the Drs.
remain outstanding, they
will bear interest at the
Interest Rate to Maturity
determined in accordance with
the procedures described
in the Prospectus Supplement
dated March 26, 1998 to
the Prospectus dated
January 27, 1998.
Interest Payment Dates: April 5 and October 5, com-
mencing October 5, 1998.
Remarketing/Mandatory
Repurchase Provisions
The Drs. are subject to
mandatory tender on April 5,
2001 (the "Remarketing Date").
If J.P. Morgan Securities
Inc., as Remarketing Dealer
(the "Remarketing Dealer"),
has elected to remarket the
Drs. as described in the
Prospectus, the Drs. will be
subject to mandatory tender to
the Remarketing Dealer at 100%
of the principal amount there-
of for remarketing on the
Remarketing Date. If the Re-
marketing Dealer elects not to
remarket the Drs., or for
any reason does not purchase
all of the Drs. on the Remar-
keting Date, the Company will
be required to purchase on the
Remarketing Date any Drs. that
have not been purchased by the
Remarketing Dealer at 100% of
the principal amount thereof
plus accrued interest, if any.
Redemption: The Drs. will be redeemable on
the Remarketing Date on the
terms described in the
Prospectus.
Sinking Fund Provisions: None
Remarketing Agreement: The Company and the Remarket-
ing Dealer shall execute and
deliver a remarketing agree-
ment on or prior to the
Closing Date. In considera-
tion therefor, the Remarketing
Dealer shall make a payment to
the Company on the Closing
Date equal to 2.760% of the
principal amount of the Drs.
Other Significant Provisions: As set forth in the
Prospectus.
Ratings: Standard & Poor's - "BBB"
Fitch Investor Service, L.P.-
"BBB+" Moody's Investors
Service - "Baa2" Duff & Phelps
- "BBB"
Closing Date and Time of Delivery: The Closing will be held at
9:00 A.M. (E.S.T.) on
March 31, 1998, with the
Securities being delivered
through the book-entry
facilities of The Depository
Trust Company ("DTC") and
-2-
made available for checking by
DTC and the Trustee at least
24 hours prior to the Closing
Date.
Closing Location: Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
-3-
SCHEDULE II
Principal Amount
of Drs. To Be
Underwriters Purchased
J.P. Morgan Securities Inc........................... $60,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation............................. $10,000,000
Merrill Lynch, Pierce Fenner
& Smith Incorporated............................... $15,000,000
UBS Securities LLC................................... $15,000,000
-----------
Total.............................................. $100,000,000
============
SCHEDULE III
SUBSIDIARIES
First Industrial Securities Corporation
First Industrial Securities, L.P.
First Industrial Mortgage Corporation
First Industrial Mortgage Partnership, L.P.
First Industrial Financing Corporation
First Industrial Financing Partnership, L.P.
First Industrial Indianapolis Corporation
First Industrial Indianapolis, L.P.
First Industrial Harrisburg Corporation
First Industrial Harrisburg, L.P.
First Industrial Development Services Group, L.P.
FI Development Services Corporation
First Industrial Pennsylvania Corporation
First Industrial Pennsylvania Partnership, L.P.
FR Acquisitions, Inc.
First Industrial Management Corporation
FR Development Services, L.L.C.
FR Development Services, Inc.
SCHEDULE IV
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
First Industrial, L.P. Georgia*
Illinois*
Indiana*
Iowa
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois*
Michigan*
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Georgia
Illinois
Iowa
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial (Atlanta) Management Corporation Georgia
Illinois
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
-2-
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
- --------------------------
* Denotes jurisdictions on which counsel is opining.
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