EXHIBIT 4.5
First Industrial, L.P.
$200,000,000 of 7.375% Notes due March 15, 2011
Purchase Agreement
March 12, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
CHASE SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
UBS WARBURG LLC
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 initial purchasers severally and not jointly named in Schedule II hereto
(collectively, the "Initial Purchasers"), for whom Chase Securities Inc. and
Credit Suisse First Boston Corporation are acting as representatives (in such
capacity, the "Representatives"), the principal amount of its debt securities
identified in Schedule I hereto (the "Securities"), each as specified in
Schedule I hereto.
The sale of the Securities to the Initial Purchasers will be made without
registration under the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "Securities Act"), in reliance upon an exemption
therefrom. In connection with the sale of the Securities, the Operating
Partnership has prepared an offering memorandum dated March 12, 2001 (including
any documents incorporated by reference therein and any exhibits thereto, the
"Offering Memorandum") setting forth certain information concerning the
Operating Partnership, First Industrial Realty Trust, Inc., a Maryland
corporation and the sole general partner of the Operating Partnership (the
"Company") and the Securities, for the solicitation or purchase of, or the
offering of the Securities to the Subsequent Purchasers (as defined below).
The Securities will be issued under an indenture, dated as of May 13, 1997
(the "Original Indenture"), between the Operating Partnership and U.S. Bank
Trust National Association, as trustee (the "Trustee"). The title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements and any other variable terms of the Securities shall be established
by or pursuant to supplemental indenture No. 6 to the Original Indenture (as so
supplemented, and as the same may be amended or further supplemented from time
to time, the "Indenture") to be entered into between the Operating Partnership
and the Trustee on or prior to the Closing Date (as defined in Section 3).
The Operating Partnership understands that the Initial Purchasers propose
to make an offering of the Securities on the terms and in the manner set forth
herein and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after the date of this Agreement. The
Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act, in reliance upon exemptions
therefrom. Pursuant to the terms of the Securities and the Indenture, investors
that acquire Securities may only resell or otherwise transfer such Securities if
such Securities are hereafter registered under the Securities Act or if an
exemption from the registration requirements of the Securities Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") of the Securities Act.
The Initial Purchasers and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement, to be dated as of
the Closing Date and to be substantially in the form attached hereto as Exhibit
A (the "Registration Rights Agreement").
Each of the Company and the Operating Partnership hereby severally agrees
with the Initial Purchasers as follows:
1. The Operating Partnership agrees to issue and sell the Securities to the
several Initial Purchasers as hereinafter provided, and each Initial Purchaser,
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 Initial Purchaser'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 Initial Purchasers intend
(i) to offer their respective portions of the Securities, as soon after this
Agreement has become effective as in the judgment of the Initial Purchasers is
advisable, to the Subsequent Purchasers in reliance on Rule 144A or Regulation S
and (ii) initially to offer the Securities upon the terms set forth in the
Offering Memorandum.
The Operating Partnership and the Company confirm that they have authorized
the Initial Purchasers, subject to the restrictions set forth below, to
distribute copies of the Offering Memorandum in connection with the offering of
the Securities. Each Initial Purchaser hereby makes to the Operating Partnership
and the Company the following representations and agreements:
(i) it is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act; and
(ii) (A) it will not solicit offers for, or offer to sell, the Securities
by any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act ("Regulation D")) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (B) it will solicit offers for the Securities only from, and will offer
the Securities only to, persons who it reasonably believes to be (1) "qualified
institutional buyers" within the meaning of Rule 144A under the Securities Act
or (2) non-U.S. persons outside the United States, as determined under
Regulation S, to whom each Initial Purchaser reasonably believes offers and
sales may be made in reliance on Regulation S.
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
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such other time and place on the same or such other date, not later than the
third Business Day thereafter, as you and the Operating Partnership may agree in
writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, the Initial Purchasers 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 Initial Purchasers 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 Securities shall be in such denominations and registered in such
names as the Representatives may request in writing at least one full Business
Day prior to the Closing Date. The Securities will be made available for
examination and packaging by the Representatives in the City of New York no
later than 10:00 A.M. (Eastern Time) on the Business Day prior to the Closing
Date.
5. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Initial Purchaser as of the date hereof and the
Closing Date that:
(a) The Offering Memorandum is accurate in all material respects and does
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and the Offering
Memorandum, as amended or supplemented, if applicable, will be at the Closing
Date accurate in all material respects and will not contain any 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 under which they were
made, not misleading.
(b) The Offering Memorandum shall incorporate by reference (i) the most
recent Annual Report of the Operating Partnership on Form 10-K (the "Annual
Report") filed with the Securities and Exchange Commission (the "Commission"),
(ii) each Quarterly Report of the Operating Partnership on Form 10-Q and each
Current Report of the Operating Partnership on Form 8-K filed with the
Commission since the filing of the end of the fiscal year to which such Annual
Report relates and (iii) the Annual Report of the Company on Form 10-K. The
documents incorporated or deemed to be incorporated by reference in the Offering
Memorandum 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
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (the "Exchange Act") and, when read together with the
other information in the Offering Memorandum, at the time the Offering
Memorandum was issued and on the Closing Date, did not and will not include an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and is in
good standing with the State Department of Assessments and Taxation of Maryland.
The Operating Partnership has been duly organized and is validly existing as a
limited partnership in good standing under and by virtue of the Delaware Revised
Uniform Limited Partnership Act. Each of First Industrial Financing Partnership,
L.P. (the "Financing Partnership"), First Industrial Securities, L.P.
("Securities, L.P."), First Industrial Mortgage Partnership,
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L.P. (the "Mortgage Partnership") and First Industrial Pennsylvania Partnership,
L.P. ("FIP") (the Financing Partnership, Securities, L.P., the Mortgage
Partnership and FIP are referred to collectively herein as the "Partnership
Subsidiaries") has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the laws of its jurisdiction
of organization. Each of First Industrial Securities Corporation ("FISC"), First
Industrial Finance Corporation ("FIFC"), First Industrial Mortgage Corporation
("FIMC"), F.R. Development Services, Inc. ("FRDSI") and First Industrial
Pennsylvania Corporation ("FIPC") (FISC, FIFC, FIMC, FRDSI and FIPC are referred
to collectively herein as the "Corporate Subsidiaries," and the Partnership
Subsidiaries and the Corporate Subsidiaries are referred to herein collectively
as the "Subsidiaries"), has been duly organized and is validly existing as a
corporation in good standing under and by virtue of the laws of its jurisdiction
of incorporation. Other than the 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. FIMC is a wholly owned subsidiary
of the Company and is the sole general partner of the Mortgage Partnership. FISC
is a wholly owned subsidiary of the Company and is the sole general partner of
Securities, L.P. The Operating Partnership and FISC are the only limited
partners of Securities, L.P. FIPC is a wholly owned subsidiary of the Company
and is the sole general partner of FIP. FRDSI 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
Offering Memorandum 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 969 in service properties
owned, directly or indirectly, by the Company as of December 31, 2000 (the
"Properties") taken as a whole, (ii) the issuance, validity or enforceability of
the Securities or (iii) the consummation of any of the transactions contemplated
by this Agreement (each a "Material Adverse Effect"), which jurisdictions of
foreign qualification or registration are attached on Schedule III hereto. The
Operating Partnership and each of the Partnership Subsidiaries is, and at the
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned,
leased or operated by it makes such qualification or registration necessary,
except where failure to obtain such qualifications or registration will not have
a Material Adverse Effect, which jurisdictions of foreign qualification or
registration are attached on Schedule III hereto. Complete and correct copies of
the articles of incorporation and of the by-laws of the Company, the certificate
of limited partnership and agreement of limited partnership of the Operating
Partnership and the charter documents, partnership agreements and other
organizational documents of the Subsidiaries and all amendments thereto as have
been requested by the Initial Purchasers or their counsel have been delivered to
the Initial Purchasers or their counsel;
(d) The Securities have been duly authorized for issuance and sale in
accordance with this Agreement by the Company, as general partner of the
Operating Partnership, and, when issued by the Operating Partnership and
authenticated and delivered by the Trustee in accordance with the terms of the
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Indenture, and paid for by the Initial Purchasers pursuant to this Agreement,
such Securities will be valid and legally binding unsecured obligations of the
Operating Partnership entitled to the benefit of the Indenture and enforceable
against the Operating Partnership in accordance with their respective terms,
subject to (1) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (2) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; the Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended and the rules and regulations of the
Commission thereunder (the "TIA") and prior to the issuance of the Securities
will be duly authorized, executed and delivered by the Operating Partnership and
the Company, and assuming due authorization, execution and delivery thereof by
the Trustee, will constitute a valid and legally binding obligation of the
Operating Partnership and the Company, enforceable in accordance with its terms
subject to (1) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (2) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; the Securities will conform, and the
Indenture will conform, to the statements relating thereto contained in the
Offering Memorandum; and the Securities are in the form contemplated by the
Indenture;
(e) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as general partner and a limited partner and the partnership agreement
of each Partnership Subsidiary will have been duly authorized, validly executed
and delivered by each partner thereto and (assuming in the case of the Operating
Partnership the due authorization, execution and delivery of the partnership
agreement by each limited partner other than the Company) each such partnership
agreement will be a valid, legally binding and enforceable in accordance with
its terms immediately following the Closing Date subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be
brought. All of the issued and outstanding shares of capital stock of the
Company and each Corporate Subsidiary, all of the outstanding units of general,
limited and/or preferred partner interests of the Operating Partnership and each
Partnership Subsidiary will have been duly authorized and are validly issued,
fully paid and non-assessable; and (except as described in the Offering
Memorandum) will be owned directly or indirectly (except in the case of the
Company and the Operating Partnership) by the Company or the Operating
Partnership, as the case may be, free and clear of all security interests, liens
and encumbrances, (except for pledges in connection with the loan agreements of
the Company, the Operating Partnership and the Subsidiaries) and all of the
partnership interests in each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid, and (except as described in the
Offering Memorandum) 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);
(f) The financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Offering Memorandum 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 Offering Memorandum. The
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financial information and data included in the Offering Memorandum 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 Offering Memorandum and the books and records of the respective
entity or entities or group presented or included therein. Except as otherwise
noted in the Offering Memorandum, pro forma and/or as adjusted financial
information included or incorporated by reference in the Offering Memorandum has
been prepared in accordance with the applicable requirements of 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. PricewaterhouseCoopers 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;
(g) Subsequent to the respective dates as of which information is given in
the Offering Memorandum and prior to the Closing Date, (i) there has not been
and will not have been, except as set forth in or contemplated by the Offering
Memorandum, 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 Offering Memorandum, 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 Offering Memorandum,
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 5/8 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 its
partnership units, the Operating Partnership has not paid any distributions of
any kind on such units;
(h) 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");
(i) To the knowledge of the Company or the Operating Partnership, except as
set forth in the Offering Memorandum, 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,
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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;
(j) 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 Offering Memorandum 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;
(k) 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 Initial Purchasers of the Securities or such as have been received prior to
the date of this Agreement;
(l) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into each of this Agreement and
the Registration Rights Agreement. Each of this Agreement and the Registration
Rights Agreement have been duly and validly authorized, executed and delivered
by the Company and the Operating Partnership, constitutes a valid and binding
agreement of the Company and the Operating Partnership, and assuming due
authorization, execution and delivery by the Initial Purchasers, 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 each of this Agreement, the Registration Rights 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
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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;
(m) 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 Offering Memorandum as owned by it, free and clear of
all liens, encumbrances, claims, security interests and defects, except such as
are described in the Offering Memorandum, 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;
(n) To the knowledge of the Company and the Operating Partnership: (i) no
lessee of any portion of the Properties is in default under any of the leases
governing such Properties and there is no event which, but for the passage of
time or the giving of notice, or both, would constitute a default under any of
such leases, except in each case such defaults that would not have a Material
Adverse Effect; (ii) the current use and occupancy of each of the Properties
complies in all material respects with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not individually or
in the aggregate have a Material Adverse Effect; and (iii) there is no pending
or threatened condemnation, zoning change, environmental or other proceeding or
action that will in any material respect affect the size of, use of,
improvements on, construction on, or access to the Properties except such
proceedings or actions that would not have a Material Adverse Effect;
(o) 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;
(p) Except as disclosed in the Offering Memorandum, 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
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the Subsidiaries has actual knowledge of, or received any written notice from
any Governmental Authority (as defined below) claiming, any violation of any
Environmental Law or a determination to undertake and/or request the
investigation, remediation, clean-up or removal of any Hazardous Substance
released into the Environment on, in, under or from any Property; and (v) no
Property is included or, to the knowledge of the Operating Partnership, the
Company or the Subsidiaries, after due inquiry, proposed for inclusion on the
National Priorities List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency (the "EPA"), or included on the
Comprehensive Environmental Response, Compensation, and Liability Information
System database maintained by the EPA, and none of the Operating Partnership,
the Company or the Subsidiaries has actual knowledge that any Property has
otherwise been identified in a published writing by the EPA as a potential
CERCLA removal, remedial or response site or, to the knowledge of the Company
and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous material,
including, without limitation, oil, petroleum or any petroleum-derived substance
or waste, asbestos or asbestos-containing materials, PCB's, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject to
regulation under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
ss. 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. ss. 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss.
651, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 1801, et seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the environment or
of human health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority having the
duty or authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and "Release"
shall mean any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, emanating or disposing of
any Hazardous Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing and containing a residue of any Hazardous Substance.
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Operating Partnership, the Company or any of the Subsidiaries, and none of them
nor any of their directors, officers or employees is connected with the
Operating Partnership, the Company or any of the Subsidiaries as a promoter,
selling agent, voting trustee, director, officer or employee.
(q) Neither the Operating Partnership, nor any affiliate (as defined in
Rule 501(b) of Regulation D) of the Company has directly, or through any agent,
sold, offered for sale, solicited offers
9
to buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Securities
in a manner that would require the registration under the Securities Act of the
offering contemplated by the Offering Memorandum or engaged in any form of
general solicitation or general advertising in connection with the offering of
the Securities;
(r) Assuming the accuracy of the representation of the Initial Purchasers
in Section 2 hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities in the manner contemplated by this Agreement to
register the Securities under the Securities Act or to qualify an indenture
under the TIA;
(s) The Securities satisfy the requirements set forth in Rule 144A(d)(3)
under the Securities Act and are eligible for resale pursuant to Rule 144A under
the Securities Act;
(t) None of the Operating Partnership, the Company, the Subsidiaries or any
person acting on any of their behalf (other than the Initial Purchasers, as to
whom the Operating Partnership makes no representation) has engaged or will
engage, in connection with the offering of the Securities, in any form of
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act.
(u) The Operating Partnership is subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act.
(v) With respect to those Securities sold in reliance on Regulation S, (a)
none of the Operating Partnership, the Company or the Subsidiaries or any person
acting on any of their behalf (other than the Initial Purchasers, as to whom the
Operating Partnership makes no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (b) each of the
Operating Partnership, the Company and the Subsidiaries and any person acting on
any of their behalf (other than the Initial Purchasers, as to whom the Operating
Partnership makes no representation) has complied and will comply with the
offering restrictions requirement of Regulation S.
(w) 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 Internal Revenue Code of
1986, 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;
(x) There is no material document or contract of a character required to be
described or referred to in the Offering Memorandum which is not described or
referred to as required therein and the descriptions thereof or references
thereto are accurate in all material respects;
(y) 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;
(z) 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 Offering Memorandum. 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
10
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;
(aa) Each of the Operating Partnership, the Company and the Subsidiaries
has filed all federal, state, local and foreign income tax returns which have
been required to be filed (except in any case in which the failure to so file
would not result in a Material Adverse Effect) and has paid all taxes required
to be paid and any other assessment, fine or penalty levied against it, to the
extent that any of the foregoing would otherwise be delinquent, except, in all
cases, for any such tax, assessment, fine or penalty that is being contested in
good faith and except in any case in which the failure to so pay would not
result in a Material Adverse Effect;
(bb) 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";
(cc) 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 Exchange Act to be described in any document required to be filed with
the Commission under the Exchange Act which is not so described;
(dd) 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 offering memorandum or other
offering material in connection with the offering and sale of the Securities
other than the Offering Memorandum or other material permitted by the Securities
Act (which were disclosed to you and your counsel);
(ee) 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;
(ff) 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 Initial Purchasers or to counsel for the Initial Purchasers 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 Initial Purchaser
as to the matters covered thereby; and
(gg) 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.
11
6. Each of the Company and the Operating Partnership covenants and agrees
with each Initial Purchaser as follows:
(a) In respect of the offering of the Securities, the Operating Partnership
will (i) prepare an Offering Memorandum setting forth the aggregate principal
amount of Securities covered thereby and their terms, the names of the Initial
Purchasers participating in the offering and the aggregate principal amount of
Securities which each severally has agreed to purchase, the price at which the
Securities are to be purchased by the Initial Purchasers from the Operating
Partnership, the initial offering price to the Subsequent Purchasers, the
selling concession and reallowance, if any, and such other information as the
Initial Purchasers and the Operating Partnership deem appropriate in connection
with the offering of the Securities and (ii) furnish copies of the Offering
Memorandum to the Initial Purchasers 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) At any time when the Offering Memorandum is delivered in connection
with sales of Securities, the Operating Partnership will advise you promptly
and, if requested by you, confirm such advice in writing of the happening of any
event which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements therein not misleading;
(c) The Operating Partnership will furnish to you without charge, such
number of copies of the Offering Memorandum and of each amendment or supplement
to it, including all exhibits and documents incorporated by reference, as you
may reasonably request;
(d) The Operating Partnership will not amend or supplement the Offering
Memorandum if you have not been previously advised or if you or counsel for the
Initial Purchasers reasonably object to such amendment or supplement;
(e) If, at any time prior to the completion of the initial placement of the
Securities, any event shall occur as a result of which, in the opinion of
counsel for the Initial Purchasers, it becomes necessary to amend or supplement
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances existing when the Offering Memorandum is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Offering Memorandum to comply with any law, the Operating Partnership will
forthwith prepare an appropriate amendment or supplement to the Offering
Memorandum (in form and substance reasonably satisfactory to counsel for the
Initial Purchasers) so that the statements in the Offering Memorandum, 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 Offering Memorandum will comply with any law, and to
furnish to each Initial Purchaser and to such dealers as you shall specify, such
number of copies thereof as such Initial Purchaser or dealers may reasonably
request;
(f) The Operating Partnership will use its best efforts, in cooperation
with the Initial Purchasers, to qualify, register or perfect exemptions for the
Securities for offer and sale by the several Initial Purchasers 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
12
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 Initial Purchasers 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) During the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, the Operating Partnership
shall not to offer, sell, contract to sell or otherwise dispose of any debt
securities of or guaranteed by the Operating Partnership or the Company which
are substantially similar to the Securities without the prior written consent of
the Initial Purchasers;
(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 Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, 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, and distribution of the Offering
Memorandum and all amendments and supplements thereto prior to or during the
period specified in Section 6(e) and the Registration Rights Agreement, (ii) the
printing and delivery of this Purchase Agreement, the Registration Rights
Agreement, the Indenture, any Supplemental Indentures and any Blue Sky
Memorandum, (iii) the qualification or registration of the Securities for offer
and sale under certain limited securities, Blue Sky or real estate syndication
laws of certain states in accordance with Section 6(f) hereof, (iv) the fee of
and the filings and clearance, if any, with the NASD in connection with the
offering of Securities, (v) the fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (vi)
furnishing such copies of the Offering Memorandum and all amendments and
supplements thereto as may be requested for use in connection with the offering
or sale of the Securities by the Initial Purchasers or by dealers to whom
Securities may be sold, (vii) the preparation, issuance and delivery of
certificates for the Securities to the Initial Purchasers, (viii) the costs and
charges of any transfer agent or registrar, (ix) the costs and expenses of the
Trustee under the Indenture, including the fees and disbursements of counsel for
the Trustee, (x) any expenses incurred by the Operating Partnership in
connection with a "road show" or other marketing presentation to potential
investors, (xi) any transfer taxes imposed on the sale by the Operating
Partnership of the Securities to the Initial Purchasers, (xii) the fees and
disbursements of the Operating Partnership's counsel and accountants and (xiii)
the fees and expenses of DTC;
13
(k) The Operating Partnership agrees that it will not and will cause its
Affiliates not to solicit, directly or indirectly, any offer to buy or make any
offer or sale of, or otherwise negotiate in respect of, securities of the
Operating Partnership of any class if, as a result of the doctrine of
"integration" referred to in Rule 502 under the Securities Act, such offer or
sale would render invalid (for the purpose of (i) the sale of the Securities by
the Operating Partnership to the Initial Purchasers, (ii) the resale of the
Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the
resale of the Securities by such Subsequent Purchasers to others) the exemption
from the registration requirements of the Securities Act provided by Section
4(2) thereof or by Rule 144A or by Regulation S thereunder or otherwise;
(l) The Operating Partnership and the Company will not solicit any offer to
buy or offer to sell Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D;
(m) 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;
(n) The Operating Partnership will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Offering Memorandum
under "Use of Proceeds";
(o) The Operating Partnership will use its best efforts to continue to
qualify as a REIT under Sections 856 through 860 of 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;
(p) To take all reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), ▇▇▇▇▇'▇ 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;
(q) 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;
(r) The Operating Partnership will cooperate with the Representatives and
use commercially reasonable efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC; and
(s) The Operating Partnership will comply with all of the terms and
conditions of the Registration Rights Agreement.
7. The several obligations of the Initial Purchasers 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) On the Closing Date, the Operating Partnership shall have executed and
delivered the Registration Rights Agreement, substantially in the form attached
hereto as Exhibit A.
(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
14
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 date as of which information is given in the Offering
Memorandum 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 Offering Memorandum, 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 Offering Memorandum, the
effect of which in your judgment makes it impracticable or inadvisable to
proceed with the offering or the delivery of the Securities on the terms and in
the manner contemplated in the Offering Memorandum and/or the Indenture; and
other than as set forth in the Offering Memorandum, 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 President or Chief Executive Officer of the Company and the Chief
Financial or Accounting Officer of the Company, in their capacities as officers
of the Company, on behalf of the Company for itself and as general partner of
the Operating Partnership, satisfactory to you to the effect set forth in
subsections (b) 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 Offering Memorandum;
(f) you shall have received on the Closing Date, an opinion or opinions
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company and the Operating
Partnership, to the effect that:
(i) Each of the Company and each Corporate Subsidiary is duly qualified or
registered as a foreign corporation to transact business and is in good standing
in each jurisdiction identified with an asterisk in Schedule III hereto.
(ii) The Operating Partnership and each of the Partnership Subsidiaries has
been duly formed and is validly existing as a limited partnership in good
standing under the laws of its state of organization. The Operating Partnership
and each of the Partnership Subsidiaries has all requisite partnership power and
authority to own, lease and operate its properties and other assets, to conduct
the business in which it is engaged and proposes to engage, in each case, as
described in the
15
Offering Memorandum, 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 Partnership Subsidiaries is duly
qualified or registered as a foreign partnership and is in good standing in each
jurisdiction identified with an asterisk in Schedule III hereto.
(iii) 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 each of the Company's and the
Operating Partnership's Annual Report on Form 10-K, as amended, if applicable,
and the Operating Partnership's three most recent Quarterly Reports 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.
(iv) This Agreement and was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership. The Registration
Rights Agreement was duly and validly authorized, executed and delivered by the
Operating Partnership.
(v) The issuance of the Securities has been duly authorized by the Company
on behalf of the Operating Partnership, and when executed and authenticated by
the Trustee in accordance with the terms of the Indenture, and delivered to, and
paid for by, the Initial Purchasers in accordance with the terms of this
Agreement, such Securities will constitute valid and legally binding obligations
of the Operating Partnership entitled to the benefits provided for in the
Indenture, enforceable against the Operating Partnership in accordance with
their terms subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding at equity or law).
(vi) The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by the Operating Partnership, and assuming
due authorization, execution and delivery thereof by Chase, will constitute a
valid and legally binding agreement of the Operating Partnership, enforceable
against Operating Partnership in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, and
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(vii) The Indenture has been duly and validly authorized, executed and
delivered by the Operating Partnership, and assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
legally binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity (regardless of whether such
16
enforceability is considered in a proceeding at equity or law); and the
Indenture meets the requirements for qualification under the TIA.
(viii) The Indenture and the Securities conform in all material respects to
the descriptions thereof in the Offering Memorandum under the caption
"Description of Notes." The Securities are in the form contemplated by the
Indenture.
(ix) The execution and delivery of this Agreement, the Registration Rights
Agreement and the Indenture, the issuance and sale of the Securities and the
performance by the Company and the Operating Partnership of their respective
obligations under the Securities, this Agreement, the Registration Rights and
the Indenture and the consummation of the transactions herein and therein
contemplated will not require, to such counsel's knowledge, any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except such as may be required
under the Securities Act, the TIA and the state securities, Blue Sky or real
estate syndication laws in connection with the purchase and distribution of the
Securities by the Initial Purchasers) 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, each of the
Company's and the Operating Partnership's Annual Report on Form 10-K, as
amended, if applicable, and the Operating Partnership's three most recent
Quarterly Reports 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
FISC; (3) any applicable law, rule or administrative regulation, except in each
case for conflicts, breaches, violations or defaults that in the aggregate would
not have a Material Adverse Effect.
(x) To the knowledge of such counsel, no Material authorization, approval,
consent or order of any court or governmental authority or agency or any other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under the Securities Act,
the TIA or the by-laws, corporate financing rule and conflict of interest rule
of the NASD, or state securities, blue sky or real estate syndication laws, or
such as have been received prior to the date of such opinion.
(xi) The documents filed pursuant to the Exchange Act and incorporated by
reference in the Offering Memorandum (other than the financial statements and
supporting schedules therein and other financial data, as to which no opinion
need be rendered), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
(xii) Each of the Initial Purchasers 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 Initial
Purchasers acquire such Securities in good faith and without notice of any such
security interests, mortgages, pledges, liens, encumbrances, claims or equities.
17
(xiii) The information in the Offering Memorandum under "Description of the
Notes," "Certain United States Federal Income Tax Considerations," "Exchange
Offer; Registration Rights," and "Risk Factors," to the extent that it
constitutes statements of law, descriptions of statutes, rules or regulations,
or summaries of documents or legal conclusions, has been reviewed by us and is
correct in all material respects and presents fairly the information required to
be disclosed therein.
(xiv) Assuming the correctness of the representations and warranties herein
and the compliance with the agreements herein of the Operating Partnership and
the Initial Purchasers, the offer and sale of the Securities to the Initial
Purchasers and the initial resale of the Securities by the Initial Purchaser in
accordance with Sections 2 and 8 of this Agreement to each Subsequent Purchaser
solely in the manner and under the circumstances contemplated by this Agreement
and the Offering Memorandum are exempt from the registration requirements of the
Securities Act.
(xv) To such counsel's knowledge, the descriptions of material documents
and contracts in the Offering Memorandum and all references thereto are accurate
in all material respects.
(xvi) 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).
(xvii) 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 Initial Purchasers at which the contents
of the Offering Memorandum 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 Offering Memorandum or any
amendments or supplements thereto, no facts have come to the attention of such
counsel that lead them to believe that the Offering Memorandum, including the
documents incorporated therein by reference 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 Offering Memorandum.
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Baltimore, Maryland, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Initial Purchasers, (iii) as to matters of Illinois law, on the opinion of
Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
18
Chicago, Illinois, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Initial Purchasers, and (iv) as to the good
standing and qualification of the Company, the Operating Partnership, the
Corporate Subsidiaries and the Partnership Subsidiaries to do business in any
state or jurisdiction, upon certificates of appropriate government officials or
opinions of counsel in such jurisdictions. Counsel need express no opinion (A)
as to the enforceability of forum selection clauses in the federal courts or (B)
with respect to the requirements of, or compliance with, any state securities or
"Blue Sky" or real estate syndication laws;
(g) You shall have received on the Closing Date, an opinion (satisfactory
to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, 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 Offering Memorandum, 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 Registration Rights Agreement and the
Indenture was duly and validly authorized by the Company, on behalf of itself,
if applicable, and the Operating Partnership.
(v) The execution and delivery of this Agreement, the Registration Rights
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 does not
conflict with or constitute a breach or violation of or default under: (A) the
charter or by-laws, as the case may be, of the Company; and (B) any applicable
Maryland law, rule or administrative regulation or any order or administrative
or court decree of which such counsel is aware, except in each case for
conflicts, breaches, violations or defaults that in the aggregate would not have
a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material authorization, approval,
consent or order of any Maryland court, governmental authority, agency or other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder, except such as may be required under Maryland securities,
blue sky or real estate syndication laws.
(vii) The 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, if applicable.
19
(h) You shall have received on the Closing date, an opinion (satisfactory
to you and counsel for the Initial Purchasers), dated the Closing Date, of
Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Illinois counsel for
the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company or the Operating
Partnership, FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or
default in connection with the performance or observance of any obligation,
agreement, covenant or condition contained in any or all of (1) that certain
Unsecured Revolving Credit Agreement, dated as of June 30, 2000, among the
Operating Partnership, as Borrower, the Company, as General Partner, Bank One,
NA, UBS AG, Stamford Branch, Banc of America, N.A., and certain other banks, as
Lenders, Bank One, NA, as Administrative Agent, UBS Warburg LLC, as Syndication
Agent, Banc of America, N.A., as Documentation Agent and Wachovia Bank, N.A., as
Managing Agent; and (2) that certain Loan Agreement, dated as of December 29,
1995, by and between Nomura Asset Capital Corporation as Lender, and the
Mortgage Partnership, as Borrower (all such indebtedness collectively, the
"Credit Documents"), except in each case for defaults that, in the aggregate,
are not reasonably expected to have a Material Adverse Effect.
(ii) The execution and delivery of this Agreement and the Indenture and the
performance of the obligations set forth herein and therein by the Company and
the Operating Partnership did not and do not conflict with, or constitute a
breach or violation of, or default under: (A) any or all of the Credit
Documents; (B) any applicable law, rule or administrative regulation of the
federal government (or agency thereof) of the United States; or (C) any order or
administrative or court decree issued to or against, or concerning any or all of
the Company or the Operating Partnership, the Mortgage Partnership, FIMC, FIPC
or FIP, 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 Company Annual Report of Form 10-K under the
footnotes to Item 2 "The Properties--Detailed Property Listing" and Note 5 to
the Company's Consolidated Financial Statements 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) You shall have received on the Closing Date, an opinion (satisfactory
to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company and the Operating Partnership,
to the effect that:
We are of the opinion that, commencing with the Company's taxable year
ended on December 31, 1994, the Company has been organized in conformity
with the requirements for qualification as a REIT under the Code and the
Company's method of operation, as described in the Offering Memorandum and
as set forth in the Certificate has enabled it to meet the requirements for
qualification as a REIT under the Code and, provided that the Company
continues to satisfy the applicable asset composition, source of income,
shareholder diversification, distribution, recordkeeping and other
requirements of the Code necessary to qualify as a REIT, it will continue
to so qualify.
20
(j) On the date hereof, the Accountants shall have furnished to the Initial
Purchasers a letter, dated the date of its delivery, addressed to the Initial
Purchasers and in form and substance satisfactory to the Initial Purchasers (and
to its counsel), confirming that they are independent public accountants with
respect to the Operating Partnership, the Company and the Subsidiaries as
required by the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Offering Memorandum and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on Auditing
Standards 72. At the Closing Date, the Accountants shall have furnished to the
Initial Purchasers 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;
(k) You shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ("▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ &
▇▇▇▇▇"), counsel for the Initial Purchasers, as to the matters referred to in
clause (i) (with respect to the Company only) of Section 7(g) and clauses (ii)
(with respect to the Operating Partnership and the first sentence only), (iv),
(v), (vi), (vii), (viii) and (xiv) of Section 7(f) and in addition, ▇▇▇▇▇▇▇▇
Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ shall make statements similar to those contained in the
first paragraph following Section 7(f)(xvii) hereto and shall be entitled to
rely on those persons described in the second paragraph following Section
7(f)(xvii) hereto with respect to the matters described therein.
(l) 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 the
Representatives a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory the Representatives, confirming
that the Securities have such ratings. Since the date hereof, there shall not
have occurred a downgrading in the rating assigned to the Securities or any of
the Company's securities or the Operating Partnership's other securities by any
such rating organization, and no such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's securities or
the Operating Partnership's other securities.
(m) At the Closing Date, counsel for the Initial Purchasers 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 Initial Purchasers and counsel for the
Initial Purchasers.
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 ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for
the Initial Purchasers.
8. Each of the Initial Purchasers and the Operating Partnership hereby
establish and agree to observe the following procedures in connection with the
offer and sale of the Securities:
21
(a) Offers, sales and deliveries of the Securities shall only be made (x)
to persons whom the offeror or seller reasonably believes to be "qualified
institutional buyers" (as defined in Rule 144A under the Securities Act) or (y)
non-U.S. persons outside the United States, as defined in Regulation S under the
Securities Act, to whom the offeror or seller reasonably believes offers and
sales of the Securities may be made in reliance upon Regulation S under the
Securities Act. Each Initial Purchaser agrees that it will not offer, sell or
deliver any of the Securities in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions.
(i) No general solicitation or general advertising (within the meaning of
Rule 502(c) under the Securities Act) will be used in the United States in
connection with the offering or sale of the Securities.
(ii) In the case of a non-bank Subsequent Purchaser of a Security acting as
a fiduciary for one or more third parties, each such third party shall, in the
judgment of the applicable Initial Purchaser, be a Qualified Institutional Buyer
or a non-U.S. person outside the United States.
(iii) Each Initial Purchaser will take reasonable steps to inform, and
cause each of its U.S. Affiliates to take reasonable steps to inform, persons
acquiring Securities from such Initial Purchaser or affiliate, as the case may
be, in the United States that the Securities (a) have not been and will not be
registered under the Securities Act, (b) are being sold to them without
registration under the Securities Act in reliance on Rule 144A or in accordance
with another exemption from registration under the Securities Act, as the case
may be, and (c) may not be offered, sold or otherwise transferred except (1) to
the Operating Partnership, (2) outside the United States in accordance with
Regulation S, or (3) inside the United States in accordance with (x) Rule 144A
to a person whom the seller reasonably believes is a Qualified Institutional
Buyer that is purchasing such Securities for its own account or for the account
of a Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to another
available exemption from registration under the Securities Act.
(iv) No sale of the Securities to any one Subsequent Purchaser will be for
less than U.S. $1,000 principal amount and no Security will be issued in a
smaller principal amount. If the Subsequent Purchaser is a non-bank fiduciary
acting on behalf of others, each person for whom it is acting must purchase at
least U.S. $100,000 principal amount of the Securities.
(v) The transfer restrictions and the other provisions set forth in the
Offering Memorandum under the heading "Notice to Investors," including the
legend required thereby, shall apply to the Securities except as otherwise
agreed by the Operating Partnership and the Initial Purchasers.
(vi) Each Initial Purchaser will deliver to each Subsequent Purchaser of
the Securities, in connection with its original distribution of the Securities,
a copy of the Offering Memorandum, as amended and supplemented at the date of
such delivery, if required by applicable law.
(b) The Operating Partnership covenants with each Initial Purchaser as
follows:
(i) The Operating Partnership agrees that, in order to render the
Securities eligible for resale pursuant to Rule 144A under the Securities Act,
while any of the Securities remain outstanding, it will make available, upon
request, to any holder of Securities or prospective purchasers of
22
Securities the information specified in Rule 144A(d)(4), unless the Operating
Partnership furnishes information to the Commission pursuant to Section 13 or
15(d) of the Exchange Act; and
(ii) Until the expiration of two years after the original issuance of the
Securities, the Operating Partnership will not, and will cause its Affiliates
not to, purchase or agree to purchase or otherwise acquire any Securities which
are "restricted securities" (as such term is defined under Rule 144(a)(3) under
the Securities Act), whether as beneficial owner or otherwise (except as agent
acting as a securities broker on behalf of and for the account of customers in
the ordinary course of business in unsolicited broker's transactions), unless
such repurchased Securities are promptly retired.
(c) Each Initial Purchaser understands that the Securities have not been
and will not be registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Securities Act or
pursuant to an exemption from the registration requirements of the Securities
Act. Each Initial Purchaser severally represents and agrees that it has offered
and sold Securities and will offer and sell Securities (i) as part of their
distribution at any time and (ii) otherwise until forty days after the later of
the date upon which the offering of the Securities commences and the Closing
Date, only in accordance with Rule 903 of Regulation S, or another applicable
exemption from the registration provisions of the Securities Act or Rule 144A
under the Securities Act. Accordingly, neither the Initial Purchasers, their
affiliates nor any persons acting on their behalf have engaged or will engage in
any directed selling efforts with respect to Securities, and the Initial
Purchasers, their affiliates and any person acting on their behalf have complied
and will comply with the offering restriction requirements of Regulation S. Each
Initial Purchaser agrees that, at or prior to confirmation of a sale of
Securities (other than a sale of Securities pursuant to Rule 144A) it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it or through it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the
Securities Act and may not be offered or sold within the United States or to or
for the account or benefit of U.S. persons (i) as part of their distribution at
any time and (ii) otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of closing, except
in either case in accordance with Regulation S, Rule 144A under the Securities
Act or another exemption from the registration requirements of the Securities
Act. Terms used above have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(d) Each Initial Purchaser severally represents and agrees that it has not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Operating Partnership.
9. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Initial Purchaser and each person, if any,
who controls any Initial Purchaser 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 Offering Memorandum (as
amended or supplemented if the Company or the Operating Partnership shall have
23
furnished any amendments or supplements thereto) or any preliminary offering
memorandum, 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 Initial Purchaser furnished to the Company or the Operating
Partnership in writing by such Initial Purchaser through you expressly for use
therein; provided, that the foregoing indemnity with respect to any preliminary
offering memorandum shall not inure to the benefit of any Initial Purchaser (or
to the benefit of the person controlling such Initial Purchaser) 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 offering memorandum supplement is eliminated
or remedied in the Offering Memorandum (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 Offering Memorandum
(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.
Each Initial Purchaser agrees, severally and not jointly, to indemnify and
hold harmless the Company and the Operating Partnership, and the Company's and
the Operating Partnership's officers and directors and each person who controls
the Company or the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company and the Operating Partnership to each
Initial Purchaser, but only with reference to information relating to such
Initial Purchaser furnished to the Company and the Operating Partnership in
writing by such Initial Purchaser through you expressly for use in the Offering
Memorandum, any amendment or supplement thereto, or any preliminary offering
memorandum. For purposes of this Section 9, the only written information
furnished by the Initial Purchasers to the Company expressly for use in the
Offering Memorandum is the name of the Initial Purchasers on the front cover and
in the "Plan of Distribution" section, the second paragraph following the table
in the "Plan of Distribution" section and the last two paragraphs in the "Plan
of Distribution" section.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Initial
Purchasers and such control persons of Initial Purchasers shall be designated in
writing by the Representatives and any such separate firm for the Company, the
Operating Partnership, their directors, officers and such control persons of the
Company and the Operating Partnership or authorized
24
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 9 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 Initial Purchasers
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 Initial Purchasers 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 Initial Purchasers 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 discounts and the commissions
received by the Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
9 were determined by pro rata allocation (even if the Initial Purchasers 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
25
provisions of this Section 9, in no event shall an Initial Purchaser be required
to contribute any amount in excess of the amount by which the total price at
which the Securities purchased by it were offered exceeds the amount of any
damages that such Initial Purchaser 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 Initial Purchasers'
obligations to contribute pursuant to this Section 9 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 9 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 9 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 Initial Purchaser or any person
controlling any Initial Purchaser 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.
10. 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 Initial Purchasers' 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
Offering Memorandum.
11. If, on the Closing Date, any one or more of the Initial Purchasers
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 Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities, the other Initial Purchaser or Initial Purchasers
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 Initial Purchasers, or in such other proportions as the
non-defaulting Initial Purchasers may specify, to purchase the Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or
refused to purchase on such date; provided that in no event shall the principal
amount of Securities that any Initial Purchaser has agreed to purchase pursuant
to Section 1 be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Initial Purchaser. If, on the Closing Date, any Initial Purchaser or
Initial Purchasers 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 Initial Purchasers and the Operating
26
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 Initial Purchaser 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 Offering Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
12. If this Agreement shall be terminated by the Initial Purchasers, 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 Initial Purchasers' obligations cannot be fulfilled, the
Company and the Operating Partnership agree to reimburse the Initial Purchasers
or such Initial Purchasers 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 Initial Purchasers 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 Initial Purchasers pursuant to this Agreement except as
provided in Sections 6(m) and 9 of this Agreement.
13. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Initial Purchasers, 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 Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
14. Any action by the Initial Purchasers hereunder may be taken by you
jointly or by the Representatives alone on behalf of the Initial Purchasers, and
any such action taken by you jointly or by the Representatives alone shall be
binding upon the Initial Purchasers. 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
Initial Purchasers shall be given to the Initial Purchasers, c/o Chase
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Syndicate
Department, with a copy to ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq. Notices to the
Company shall be given to it at First Industrial Realty Trust, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
15. 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.
16. 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.
27
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Johannson Yap
---------------------------------------------------
Name: Johannson Yap
Title: Chief Investment Officer
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Johannson Yap
---------------------------------------------------
Name: Johannson Yap
Title: Chief Investment Officer
Accepted: March 12, 2001
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BANC ONE CAPITAL MARKETS, INC.
BANC OF AMERICA SECURITIES LLC
UBS WARBURG, LLC
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: CHASE SECURITIES INC., on
behalf of itself and the several Initial Purchasers
listed in Schedule II hereto
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
28
SCHEDULE I
Initial Purchasers: Credit Suisse First Boston Corporation
Chase Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Banc of America Securities LLC
Banc One Capital Markets, Inc.
UBS Warburg LLC
Purchase Agreement dated: March 12, 2001
Title of Securities: 7.375% Notes due 2011 (the "Notes")
Aggregate principal amount: $200,000,000
Purchase Price: 99.695% of the principal amount of the Notes, plus
accrued interest, if any, from March 19, 2001
Initial Purchasers'
Discount 0.65% of
the principal
amount of the
Notes, plus accrued
interest, if any,
from March 19, 2001
Indenture: Indenture dated as of May 13, 1997 and Supplemental
Indenture No. 6 thereto to be dated as of March 19,
2001, both between the Operating Partnership and the
Trustee
Maturity: March 15, 2011
Interest Rate: 7.375%
Interest Payment Dates: March 15 and September 15, commencing September 15, 2001
Redemption: None
Sinking Fund Provisions: None
Other Significant Provisions: As set forth in the Offering Memorandum
Ratings: Standard & Poor's: "BBB"
Fitch Investor Service, L.P.: "BBB+"
▇▇▇▇▇'▇ Investors Service: "Baa2"
Duff & ▇▇▇▇▇▇: "BBB"
Closing Date and Time of Delivery: The Closing will be held at 9:00 A.M. (New York City
time) on March 19, 2001, with the Securities being
delivered through the book-entry facilities of The
Depository Trust Company ("DTC") and made available for
checking by DTC and the Trustee at
I-1
least 24 hours prior
to the Closing Date
Closing Location: ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
I-2
SCHEDULE II
Principal Amount of Securities
Initial Purchasers to be Purchased
Credit Suisse First Boston Corporation $ 70,000,000
Chase Securities Inc. $ 70,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 15,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $ 15,000,000
Banc of America Securities LLC $ 10,000,000
Banc One Capital Markets, Inc. $ 10,000,000
UBS Warburg LLC $ 10,000,000
-------------
Total $200,000,000
=============
II-1
SCHEDULE III
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 Financing Partnership, L.P. Georgia
Illinois
Iowa
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
FR Development Services, Inc Arizona
California
Colorado
Florida
Indiana
New York
III-2
--------
* Denotes jurisdictions on which counsel is opining.
