First Industrial, L.P.
$150,000,000 of 7.60% Notes due 2007
$100,000,000 of 7.15% Notes due 2027
Underwriting Agreement
May 8, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & CO.
FIRST CHICAGO CAPITAL MARKETS, INC.
UBS SECURITIES LLC
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First Industrial, L.P., a Delaware limited partnership (the "Operating
Partnership"), by this agreement (the "Agreement") proposes to issue and sell to
the underwriters named in Schedule II hereto (collectively, the "Underwriters"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), each as specified in Schedule I hereto, to be issued under the
indenture as supplemented by the first supplemental indenture thereto
(collectively, the "Indenture") between First Industrial Realty Trust, Inc., a
Maryland corporation and the sole general partner of the Operating Partnership
(the "Company"), the Operating Partnership and First Trust National Association,
as trustee (the "Trustee").
The Operating Partnership and the Company have prepared and filed with the
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Securities Act"), a
registration statement (the file number of which is set forth in Schedule I
hereto) on Form S-3, relating to certain securities (the "Shelf Securities") to
be issued from time to time by the Company or the Operating Partnership, as the
case may be. The Operating Partnership also has filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
a prospectus supplement specifically relating to the Securities (a "Prospectus
Supplement"). The registration statement as amended to the date of this
Agreement and including any registration statement filed pursuant to Rule 462(b)
under the Securities Act (a "Rule 462(b) Registration
Statement") is hereinafter referred to as the "Registration Statement" and the
related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus." The Basic Prospectus as supplemented by any applicable Prospectus
Supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus."
Any reference in this Agreement to the Registration Statement, the Basic
Prospectus, any preliminary form of Prospectus (a "preliminary prospectus")
previously filed with the Commission pursuant to Rule 424 or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Exchange Act") on
or before the date of this Agreement or the date of the Registration Statement,
the Basic Prospectus, any preliminary prospectus or the Prospectus, as the case
may be; and any reference to "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus, any preliminary prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
under the Exchange Act after the date of this Agreement, or the date of the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus, as the case may be, which are deemed to be incorporated by reference
therein.
Each of the Company and the Operating Partnership hereby severally agrees
with the Underwriters as follows:
1. The Operating Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Operating Partnership the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Operating Partnership understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made to the Operating Partnership or
to its order in immediately available funds on the date and at the time and
place set forth in Schedule I hereto (or at such other time and place on the
same or such other date, not later than the third Business Day thereafter, as
you and the Operating Partnership may agree in writing). Such payment will be
made upon delivery to, or to you for the respective accounts of, the
Underwriters of the Securities registered in such names and in such
denominations as you shall request not less than two full Business Days prior to
the date of delivery, with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Operating Partnership. As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City or the City of Chicago.
The time and date of such payment and delivery with respect to the Securities
are referred to herein as the "Closing Date." The Securities will be delivered
through the book entry facilities of The Depository Trust Company ("DTC") and
will be made available for inspection by you by 1:00 P.M. New York City time on
the Business Day prior to the Closing Date at such place in New York City as
you, DTC and the Operating Partnership shall agree.
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4. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and the Closing
Date that:
(a) The Company and the Operating Partnership meet the requirements for use
of Form S-3, and the Registration Statement has been declared effective by the
Commission;
(b) The Registration Statement and the Prospectus, including the financial
statements, schedules and related notes included in the Prospectus and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and when any post-effective
amendment to the Registration Statement or Rule 462(b) Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all applicable
provisions of the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder (the "TIA")
and will contain all statements required to be stated therein in accordance with
the Securities Act and the TIA. The Prospectus, including the financial
statements, schedules and related notes included or incorporated by reference in
the Prospectus, and if applicable, any Term Sheet to the Prospectus, as of the
date hereof and at the time the Registration Statement became effective, and at
the Closing Date, and when any post-effective amendment to the Registration
Statement or Rule 462(b) Registration Statement becomes effective or any
amendment or supplement to the Prospectus is filed with the Commission, did or
will comply in all material respects with all applicable provisions of the
Securities Act and the TIA and will contain all statements required to be stated
therein in accordance with the Securities Act and the TIA. On the date the
Registration Statement was declared effective, on the date hereof, on the date
of filing of any Rule 462(b) Registration Statement and on the Closing Date, no
part of the Registration Statement or any amendment did or will contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective, on
the date hereof, as of its date, on the date of filing of any Rule 462(b)
Registration Statement and at the Closing Date, the Prospectus did not and will
not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company and the Operating Partnership will have complied or will comply with
the requirements of Rule 111 under the Securities Act relating to the payment of
filing fees therefor. The foregoing representations and warranties in this
Section 4(b) do not apply to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification under the TIA (the
"Form T-1"), and (ii) any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter furnished in writing to
the Company or the Operating Partnership by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. Neither the Company nor the Operating Partnership has
distributed any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the preliminary prospectus,
the Prospectus or any other materials, if any, permitted by the Securities Act
(which were disclosed to the Underwriters and the Underwriters' counsel);
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(c) Any preliminary prospectus supplements, filed pursuant to Rule 424
under the Securities Act and each 462(b) Registration Statement, if any,
complied or will comply when so filed in all material respects with all
applicable provisions of the Securities Act; did not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; each preliminary prospectus and the Prospectus delivered
to the Underwriters for use in connection with the offering of Securities will,
at the time of such delivery, be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T;
(d) The documents incorporated or deemed to be incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the
time they were, or hereafter are, filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act, and,
when read together with other information included in, and incorporated by
reference in, the Prospectus, at the time the Registration Statement became
effective, as of the date of the Prospectus and as of the Closing Date, or
during the period specified in Section 5(c) did not and will not include an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The foregoing representations and warranties in
this Section 4(d) do not apply to the Form T-1 or to any statements or omissions
made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company or the Operating Partnership by
the Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto;
(e) The Company has been duly organized and is validly existing as a
corporation under and by virtue of the laws of the State of Maryland, and is in
good standing with the State Department of Assessments and Taxation of Maryland.
The Operating Partnership has been duly organized and is validly existing as a
limited partnership in good standing under and by virtue of the Delaware Uniform
Limited Partnership Act. Each of First Industrial Financing Partnership, L.P.
(the "Financing Partnership"), First Industrial Securities, L.P. ("Securities,
L.P."), First Industrial Mortgage Partnership, L.P. (the "Mortgage
Partnership"), First Industrial Indianapolis, L.P. ("FII"), First Industrial
Harrisburg, L.P. ("FIH"), First Industrial Development Services Group, L.P.
("DSG") and First Industrial Pennsylvania Partnership, L.P. ("FIP") (the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FII, FIH, DSG
and FIP are referred to collectively herein as the "Partnership Subsidiaries")
has been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of organization.
Each of First Industrial Securities Corporation ("FISC"), First Industrial
Finance Corporation ("FIFC"), First Industrial Mortgage Corporation ("FIM"),
First Industrial Pennsylvania Corporation ("FIPC"), First Industrial
Indianapolis Corporation ("FIIC"), First Industrial Harrisburg Corporation
("FIHC"), FI Development Services Corporation ("FIDSG"), FR Acquisitions, Inc.
("FRA") and First Industrial Management Corporation ("FIMC," and together with
FISC, FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively
herein as the "Corporate Subsidiaries," and the Partnership Subsidiaries and the
Corporate Subsidiaries are referred to herein collectively as the
"Subsidiaries"), has been duly organized and is validly existing as a
corporation in good standing under and by virtue of the laws of its jurisdiction
of incorporation. Other than the Corporate Subsidiaries and the Partnership
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a "significant subsidiary" under
Rule 1-02 of Regulation S-X promulgated
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under the Exchange Act. The Company is the sole general partner of the Operating
Partnership. FIFC is a wholly-owned subsidiary of the Company and is the sole
general partner of the Financing Partnership. FIM is a wholly-owned subsidiary
of the Company and is the sole general partner of the Mortgage Partnership. FISC
is a wholly-owned subsidiary of the Company and is the sole general partner of
Securities, L.P. The Operating Partnership and FISC are the only limited
partners of Securities, L.P. FIPC is a wholly-owned subsidiary of the Company
and is the sole general partner of FIP. FIIC is a wholly-owned subsidiary of the
Company and is the sole general partner of FII. FIHC is a wholly-owned
subsidiary of the Company and is the sole general partner of FIH. FIDSG is a
wholly-owned subsidiary of the Company and is the sole general partner of DSG.
The Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Company, the Operating Partnership
and each of the Subsidiaries has, and at the Closing Date will have, full
corporate or partnership power and authority, as the case may be, to conduct all
the activities conducted by it, to own, lease or operate all the properties and
other assets owned, leased or operated by it and to conduct its business in
which it engages or proposes to engage as described in the Registration
Statement or the Prospectus and the transactions contemplated hereby and
thereby. The Company and each of the Corporate Subsidiaries is, and at the
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the properties and assets
owned, leased or operated by it makes such qualification or registration
necessary, except where failure to obtain such qualifications or registration
will not have a material adverse effect on (i) the condition, financial or
otherwise, or the earnings, assets or business affairs or prospects of the
Operating Partnership, Company and their Subsidiaries, taken as a whole or on
the 379 in service properties owned, directly or indirectly, by the Company as
of December 31, 1996, (the "Properties") taken as a whole, (ii) the issuance,
validity or enforceability of the Securities or the enforceability of the
Indenture or (iii) the consummation of any of the transactions contemplated by
this Agreement and/or the Indenture (each a "Material Adverse Effect"), which
jurisdictions of foreign qualification or registration are attached on Schedule
IV hereto. The Operating Partnership and each of the Partnership Subsidiaries
is, and at the Closing Date will be, duly qualified or registered to do business
and in good standing as a foreign limited partnership in all jurisdictions in
which the nature of the activities conducted by it or the character of the
assets owned, leased or operated by it makes such qualification or registration
necessary, except where failure to obtain such qualifications or registration
will not have a Material Adverse Effect, which jurisdictions of foreign
qualification or registration are attached on Schedule IV hereto. Complete and
correct copies of the articles of incorporation and of the by-laws of the
Company, the certificate of limited partnership and agreement of limited
partnership of the Operating Partnership and the charter documents, partnership
agreements and other organizational documents of the Subsidiaries and all
amendments thereto as have been requested by the Underwriters or their counsel
have been delivered to the Underwriters or their counsel;
(f) The Securities have been duly authorized by the Company, as general
partner of the Operating Partnership, and, when authenticated and delivered by
the Trustee in accordance with the terms of the Indenture, and paid for by the
Underwriters pursuant to this Agreement, such Securities will be valid and
legally binding unsecured obligations of the Operating Partnership entitled to
the benefit of the Indenture and enforceable against the Operating Partnership
in accordance with their respective terms, subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
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rights and remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be
brought; the Indenture has been duly qualified under the Trust Indenture Act and
prior to the issuance of the Securities will be duly authorized, executed and
delivered by the Operating Partnership and the Company, and assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
valid and legally binding obligation of the Operating Partnership and the
Company, enforceable in accordance with its terms subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be
brought; the Securities will conform, and the Indenture will conform, to the
statements relating thereto contained in the Prospectus; and the Securities are
in the form contemplated by the Indenture;
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as general partner and a limited partner and the partnership agreement
of each Partnership Subsidiary will have been duly authorized, validly executed
and delivered by each partner thereto and (assuming in the case of the Operating
Partnership the due authorization, execution and delivery of the partnership
agreement by each limited partner other than the Company) each such partnership
agreement will be a valid, legally binding and enforceable in accordance with
its terms immediately following the Closing Date subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights and remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or at law,
and the discretion of the court before which any proceeding therefor may be
brought. All of the issued and outstanding shares of capital stock of the
Company and each Corporate Subsidiary will have been duly authorized and are
validly issued, fully paid and non-assessable; and (except as described in the
Prospectus) will be owned directly or indirectly (except in the case of the
Company) by the Company or the Operating Partnership, as the case may be, free
and clear of all security interests, liens and encumbrances, (except for pledges
in connection with the loan agreements of the Company, the Operating Partnership
and the Subsidiaries) and all of the partnership interests in each Partnership
Subsidiary will have been duly authorized and are validly issued, fully paid,
and (except as described in the Prospectus) will be owned directly or indirectly
by the Company or the Operating Partnership, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with the
loan agreements of the Company, the Operating Partnership and the Subsidiaries);
(h) The financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Registration Statement and the
Prospectus comply in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial condition of the entity or entities or group presented or
included therein, as of the respective dates thereof, and its consolidated
results of operations and cash flows for the respective periods covered thereby,
are all in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. The financial information and data included in the
Registration Statement and the Prospectus present fairly the information
included or incorporated by reference
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therein and have been prepared on a basis consistent, except as may be noted
therein, with that of the financial statements, schedules and notes included or
incorporated by reference in the Registration Statement and the Prospectus and
the books and records of the respective entity or entities or group presented or
included therein. Except as otherwise noted in the Prospectus, pro forma and/or
as adjusted financial information included or incorporated by reference in the
Prospectus has been prepared in accordance with the applicable requirements of
the Securities Act and the American Institute of Certified Public Accountants
("AICPA") guidelines with respect to pro forma and as adjusted financial
information, and includes all adjustments necessary to present fairly the pro
forma and/or as adjusted financial condition of the entity or entities or group
presented or included therein at the respective dates indicated and the results
of operations and cash flows for the respective periods specified. The Company's
and the Operating Partnership's ratio of earnings to fixed charges included in
the Prospectus and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the Commission.
No other financial statements (or schedules) of the Company, the Operating
Partnership and the Partnership Subsidiaries or any predecessor of the Company
and/or the Operating Partnership and the Partnership Subsidiaries are required
by the Act or the Exchange Act to be included in the Registration Statement or
the Prospectus. Xxxxxxx & Xxxxxxx L.L.P. (the "Accountants") who have reported
on such financial statements, schedules and related notes, are independent
public accountants with respect to the Company, the Operating Partnership and
the Partnership Subsidiaries as required by the Securities Act;
(i) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and prior to the Closing Date, (i)
there has not been and will not have been, except as set forth in or
contemplated by the Registration Statement and the Prospectus, any change in the
capitalization, long term or short term debt or in the capital stock or equity
of each of the Operating Partnership and the Company or any of the Subsidiaries
which would be material to the Operating Partnership, the Company and the
Subsidiaries considered as one enterprise (anything which would be material to
the Operating Partnership, the Company and the Subsidiaries, considered as one
enterprise, being hereinafter referred to as "Material"), (ii) except as
described in the Prospectus, neither the Operating Partnership, the Company nor
any of the Subsidiaries has incurred nor will any of them incur any liabilities
or obligations, direct or contingent, which would be Material, nor has any of
them entered into nor will any of them enter into any transactions, other than
pursuant to this Agreement and the transactions referred to herein or as
contemplated in the Prospectus, which would be Material, (iii) there has not
been any Material Adverse Effect, (iv) except for regular quarterly
distributions on the common stock, par value $0.1 per share, of the Company
("Common Securities") and the dividends on the shares of the Company's Series A
Preferred Stock, par value $.01 per share (the "Preferred Securities"), the
Company has not paid or declared and will not pay or declare any dividends or
other distributions of any kind on any class of its capital stock, and (v)
except for distributions in connection with regular quarterly distributions on
Units, the Operating Partnership has not paid any distributions of any kind on
its Units;
(j) Neither the Operating Partnership, the Company nor any of the
Subsidiaries is, or as of the Closing Date will be, required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
(k) To the knowledge of the Company or the Operating Partnership, except as
set forth in the Registration Statement and the Prospectus, there are no
actions, suits,
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proceedings, investigations or inquiries, pending or, after due inquiry,
threatened against or affecting the Operating Partnership, the Company or any of
the Subsidiaries or any of their respective officers or directors in their
capacity as such or of which any of their respective properties or assets or any
Property is the subject or bound, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect;
(l) The Operating Partnership, the Company and each of the Subsidiaries (i)
has, and at the Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus and are in material compliance with
such, and (B) complied in all material respects with all laws, regulations and
orders applicable to it or its business and (ii) are not, and at the Closing
Date will not be, in breach of or default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a "Contract or Other
Agreement") or under any applicable law, rule, order, administrative regulation
or administrative or court decree to which it is a party or by which any of its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any Material contract or other agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. Neither the Operating Partnership, the Company nor any
of the Subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its articles of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be;
(m) No Material consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body or any other
entity is required in connection with the offering, issuance or sale of the
Securities hereunder except such as have been obtained under the Securities Act,
the Exchange Act and the TIA and such as may be required under state securities,
Blue Sky or real estate syndication laws or the by-laws, the corporate financing
rule or the conflict of interests rule of the National Association of Securities
Dealers, Inc. (the "NASD") in connection with the purchase and distribution by
the Underwriters of the Securities or such as have been received prior to the
date of this Agreement, and except for the filing of this Agreement and the
Indenture with the Commission as exhibits to a Form 8-K, which the Operating
Partnership and the Company agree to make in a timely manner;
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and the Operating Partnership, constitutes a valid and binding agreement
of the Company and the Operating Partnership and assuming due authorization,
execution and delivery by the Underwriters, is enforceable, against the Company
and the Operating Partnership in accordance with the terms hereof. The
execution, delivery and performance of this 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
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creation or imposition of any lien, charge or encumbrance upon any of the assets
or properties of the Operating Partnership, the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the certificate of
incorporation, by-laws, certificate of limited partnership, partnership
agreement or other organizational documents of the Operating Partnership, the
Company or any of the Subsidiaries, any Contract or Other Agreement to which the
Operating Partnership, the Company or any of the Subsidiaries is a party or by
which the Operating Partnership, the Company or any of the Subsidiaries or any
of their assets or properties are bound or affected, or violate or conflict with
any judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency (foreign or domestic) or body applicable to the
business or properties of the Operating Partnership, the Company or any of the
Subsidiaries or to the Properties, in each case except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not have
a Material Adverse Effect;
(o) As of the Closing Date, the Operating Partnership, the Company and each
of the Subsidiaries will have good and marketable title to all properties and
assets described in the Prospectus as owned by it, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
described in the Registration Statement or the Prospectus, or such as secure the
Company's loan facilities of the Operating Partnership, the Company and the
Subsidiaries, or would not result in a Material Adverse Effect;
(p) To the knowledge of the Company and the Operating Partnership: (i) no
lessee of any portion of the Properties is in default under any of the leases
governing such Properties and there is no event which, but for the passage of
time or the giving of notice, or both, would constitute a default under any of
such leases, except in each case such defaults that would not have a Material
Adverse Effect; (ii) the current use and occupancy of each of the Properties
complies in all material respects with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not individually or
in the aggregate have a Material Adverse Effect; and (iii) there is no pending
or threatened condemnation, zoning change, environmental or other proceeding or
action that will in any material respect affect the size of, use of,
improvements on, construction on, or access to the Properties except such
proceedings or actions that would not have a Material Adverse Effect;
(q) The Operating Partnership, the Company and the Partnership Subsidiaries
have property, title, casualty and liability insurance in favor of the Operating
Partnership, the Company or the Partnership Subsidiaries with respect to each of
the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Operating Partnership, the Company
and the Partnership Subsidiaries except in such instances where the tenant is
carrying such insurance or the tenant is self-insuring such risks;
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Operating Partnership, the Company and the
Subsidiaries, after due inquiry, the operations of the Operating Partnership,
the Company and the Subsidiaries are in compliance with all Environmental Laws
(as defined below) and all requirements of
9
applicable permits, licenses, approvals and other authorizations issued pursuant
to Environmental Laws; (ii) to the knowledge of the Operating Partnership, the
Company and the Subsidiaries, after due inquiry, none of the Operating
Partnership, the Company or the Subsidiaries has caused or suffered to occur any
Release (as defined below) of any Hazardous Substance (as defined below) into
the Environment (as defined below) on, in, under or from any Property, and no
condition exists on, in, under or adjacent to any Property that could reasonably
be expected to result in the incurrence of liabilities under, or any violations
of, any Environmental Law or give rise to the imposition of any Lien (as defined
below), under any Environmental Law; (iii) none of the Operating Partnership,
the Company or the Subsidiaries has received any written notice of a claim under
or pursuant to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (iv) none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge of,
or received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination to
undertake and/or request the investigation, remediation, clean-up or removal of
any Hazardous Substance released into the Environment on, in, under or from any
Property; and (v) no Property is included or, to the knowledge of the Operating
Partnership, the Company or the Subsidiaries, after due inquiry, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency (the "EPA"), or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge that
any Property has otherwise been identified in a published writing by the EPA as
a potential CERCLA removal, remedial or response site or, to the knowledge of
the Company and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous material,
including, without limitation, oil, petroleum or any petroleum-derived substance
or waste, asbestos or asbestos-containing materials, PCB's, pesticides,
explosives, radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject to
regulation under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. ss. 172.101, or in the EPA's List of Hazardous
Substances and Reportable Quantities, 40 C.F.R. Part 302); "Environment" shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
ss. 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. ss. 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. ss. 2601, et
seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C. ss.
651, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
ss. 1801, et seq.), and all other federal, state and local laws, ordinances,
regulations, rules and orders relating to the protection of the environment or
of human health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority having the
duty or authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance,
10
penalty, fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance into the
Environment, including, without limitation, the abandonment or discard of
barrels, containers, tanks (including, without limitation, underground storage
tanks) or other receptacles containing or previously containing and containing a
residue of any Hazardous Substance.
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was employed
for such purpose on a contingent basis or has any substantial interest in the
Operating Partnership, the Company or any of the Subsidiaries, and none of them
nor any of their directors, officers or employees is connected with the
Operating Partnership, the Company or any of the Subsidiaries as a promoter,
selling agent, voting trustee, director, officer or employee.
(s) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so as to qualify as a real estate investment
trust ("REIT") under Sections 856 through 860 of the Code, as amended (the
"Code"), and have elected to be taxed as a REIT under the Code commencing with
the taxable year ending December 31, 1994. The Company, the Operating
Partnership and the Subsidiaries intend to continue to qualify as a REIT for the
foreseeable future;
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described or
filed as required, except for the filing of this Agreement and the Indenture
with the Commission as exhibits to a Form 8-K, which the Company agrees to make
in a timely manner, and the descriptions thereof or references thereto are
accurate in all material respects;
(u) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry, is
any such dispute threatened which would be Material;
(v) The Operating Partnership, the Company and the Subsidiaries own, or are
licensed or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in or necessary for the conduct of
their respective businesses as described in the Prospectus. To the knowledge of
the Company or the Operating Partnership, no claims have been asserted by any
person to the use of any such trademarks or trade names or challenging or
questioning the validity or effectiveness of any such trademark or trade name.
The use, in connection with the business and operations of the Operating
Partnership, the Company and the Subsidiaries, of such trademarks and trade
names does not, to the Company's or the Operating Partnership's knowledge,
infringe on the rights of any person;
(w) Each of the Operating Partnership, the Company and the Subsidiaries has
filed all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file would
not result in a Material Adverse Effect) and has paid all taxes required to be
paid and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing would otherwise be delinquent, except, in all cases,
for any such tax, assessment, fine or penalty that is being
11
contested in good faith and except in any case in which the failure to so pay
would not result in a Material Adverse Effect;
(x) The Operating Partnership and each of the Partnership Subsidiaries is
properly treated as a partnership for federal income tax purposes and not as a
"publicly traded partnership";
(y) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company, the
Operating Partnership or the Subsidiaries on the other hand, which is required
by the Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(aa) The Company and the Operating Partnership have not taken and will not
take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Securities, and the Company and the Operating Partnership have not
distributed and have agreed not to distribute any prospectus or other offering
material in connection with the offering and sale of the Securities other than
the Prospectus, any preliminary prospectus filed with the Commission or other
material permitted by the Securities Act (which were disclosed to you and your
counsel);
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets, financial and
corporate books and records is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(cc) Any certificate or other document signed by any officer or authorized
representative of the Operating Partnership, the Company or any Subsidiary, and
delivered to the Underwriters or to counsel for the Underwriters in connection
with the sale of the Securities shall be deemed a representation and warranty by
such entity or person, as the case may be, to each Underwriter as to the matters
covered thereby;
(dd) The Securities will have an investment grade rating from one or more
nationally recognized statistical rating organization at each applicable
Representation Date as specified in Schedule I hereto; and
(ee) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted, or to the knowledge of the
Company or the Operating Partnership, threatened by the Commission or by the
state securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus or any preliminary prospectus has been
issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Company, threatened by the Commission or by the state
securities authority of any jurisdiction.
12
5. Each of the Company and the Operating Partnership covenants and agrees
with each Underwriter as follows:
(a) In respect of the offering of the Securities, the Operating Partnership
will (i) prepare a Prospectus Supplement setting forth the aggregate principal
amount of Securities covered thereby and their terms not otherwise specified in
the Basic Prospectus pursuant to which the Securities are being issued, the
names of the Underwriters participating in the offering and the aggregate
principal amount of Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the offering,
the price at which the Securities are to be purchased by the Underwriters from
the Operating Partnership, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriters and the Operating Partnership deem appropriate in connection with
the offering of the Securities, (ii) file the Prospectus in a form approved by
you pursuant to Rule 424 under the Securities Act no later than the Commission's
close of business on the second Business Day following the date of determination
of the offering price of the Securities and (iii) furnish copies of the
Prospectus to the Underwriters and to such dealers as you shall specify in New
York City prior to 10:00 a.m., New York City time, as soon as practicable after
the date of this Agreement in such quantities as you may reasonably request;
(b) The Operating Partnership will comply with the Securities Act and the
Exchange Act so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration Statement
and the Prospectus. At any time when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act in connection with sales of
Securities, the Operating Partnership will advise you promptly and, if requested
by you, confirm such advice in writing, of (i) the effectiveness of any
amendment to the Registration Statement (ii) the transmittal to the Commission
for filing of any Prospectus or other supplement or amendment to the Prospectus
to be filed pursuant to the Securities Act, (iii) the receipt of any comments
from the Commission relating to the Registration Statement, any preliminary
prospectus, the Prospectus or any of the transactions contemplated by this
Agreement, (iv) any request by the Commission for post-effective amendments to
the Registration Statement or amendments or supplements to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (vi) the happening of
any event which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Operating Partnership will make every
reasonable effort to prevent the issuance of any stop order and if at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Operating Partnership will make every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time;
(c) The Operating Partnership will furnish to you without charge, one
signed copy of the Registration Statement as first filed with the Commission and
of each amendment to it, including all exhibits and documents incorporated by
reference, and to furnish to you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it and document
incorporated by reference, as you may reasonably request. If applicable, the
copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically
13
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T;
(d) At any time when the Prospectus is required to be delivered under the
Securities Act or the Exchange Act in connection with sales of Securities, not
to file any amendment to the Registration Statement or any Rule 462(b)
Registration Statement or to make any amendment or supplement to the Prospectus
or any Term Sheet, if applicable, of which you shall not previously have been
advised or to which you or counsel for the Underwriters shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement, Rule 462(b) Registration
Statement, Term Sheet, or amendment or supplement to the Prospectus which, in
the opinion of counsel for the Underwriters, may be necessary in connection with
the distribution of the Securities by you, and to use its best efforts to cause
the same to become promptly effective. If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T;
(e) If, at any time when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of Securities,
any event shall occur as a result of which, in the opinion of counsel for the
Underwriters, it becomes necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law, the
Operating Partnership will forthwith prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus (in form and substance
reasonably satisfactory to counsel for the Underwriters) so that the statements
in the Prospectus, as so amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when
it is so delivered, not misleading, or so that the Prospectus will comply with
any law, and to furnish to each Underwriter and to such dealers as you shall
specify, such number of copies thereof as such Underwriter or dealers may
reasonably request;
(f) The Operating Partnership will use its best efforts, in cooperation
with the Underwriters, to qualify, register or perfect exemptions for the
Securities for offer and sale by the several Underwriters to qualified
institutions under the applicable state securities, Blue Sky and real estate
syndication laws of such jurisdictions as you may reasonably request; provided,
however, the Operating Partnership will not be required to qualify as a foreign
limited partnership, file a general consent to service of process in any such
jurisdiction, subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any undertaking
or make any change in its partnership agreement that the general partner of the
Operating Partnership reasonably determines to be contrary to the best interests
of the Operating Partnership and its unitholders. In each jurisdiction in which
the Securities have been so qualified or registered, the Operating Partnership
will use all reasonable efforts to file such statements and reports as may be
required by the laws of such jurisdiction, to continue such qualification or
registration in effect for so long a period as the Underwriters may reasonably
request for the distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such qualification or registration; provided, however, the Operating Partnership
will not be required to qualify as a foreign limited partnership, file a general
consent to service of process in any such
14
jurisdiction, subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any undertaking
or make any change in its partnership agreement that the general partner of the
Operating Partnership reasonably determines to be contrary to the best interests
of the Operating Partnership and its unitholders;
(g) To make generally available to the holders of the Securities as soon as
reasonably practicable but not later than sixty days after the close of the
period covered thereby (ninety days in the event the close of such period is the
close of the Operating Partnership's fiscal year), an earnings statement (in
form complying with the provisions of Rule 158 of the Securities Act) covering a
period of at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than ninety days after such date)
which shall satisfy the provisions of Section 11(a) of the Securities Act, and,
if required by Rule 158 of the Securities Act, to file such statement as an
exhibit to the next periodic report required to be filed by the Operating
Partnership under the Exchange Act covering the period when such earnings
statement is released;
(h) During the period of five years after the date of this Agreement, the
Company and the Operating Partnership will furnish to you as soon as available
(x) a copy of each regular and periodic report, financial statement or other
publicly available information of the Operating Partnership, the Company and any
Subsidiary mailed to the holders of the Securities or filed with the Commission
or any securities exchange and (y) such other publicly available information
concerning the Operating Partnership, the Company and any Subsidiary as you may
reasonably request;
(i) During the period when the Prospectus is required to be delivered under
the Securities Act or the Exchange Act in connection with sales of the
Securities, to file all documents required to be filed by it with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act;
(j) The Operating Partnership will pay all costs, expenses, fees and taxes
incident to (i) the preparation, printing, filing and distribution under the
Securities Act of the Registration Statement and any amendment thereto
(including financial statements and exhibits), each preliminary prospectus, the
Prospectus and all amendments and supplements to any of them prior to or during
the period specified in Section 5(c), (ii) the printing and delivery of this
Underwriting Agreement, the Indenture, any Supplemental Indentures and the Blue
Sky Memorandum, (iii) the qualification or registration of the Securities for
offer and sale under certain limited securities, Blue Sky or real estate
syndication laws of certain states in accordance with Section 5(g) hereof, (iv)
the fee of and the filings and clearance, if any, with the NASD in connection
with the Offering, (v) the fees charged by nationally recognized statistical
rating organizations for the rating of the Securities, (vi) furnishing such
copies of the Registration Statement, the preliminary prospectus, the Prospectus
and all amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Securities by the Underwriters or by
dealers to whom Securities may be sold, (vii) the preparation, issuance and
delivery of certificates for the Securities to the Underwriters, (viii) the
costs and charges of any transfer agent or registrar, (ix) the costs and
expenses of the Trustee under the Indenture, (x) any expenses incurred by the
Operating Partnership in connection with a "road show" presentation to potential
investors, (xi) any transfer taxes imposed on the sale by the Operating
Partnership of the Securities to the Underwriters and (xii) the fees and
disbursements of the Operating Partnership's counsel and accountants;
15
(k) The Operating Partnership will use its best efforts to do and perform
all things required to be done and performed under this Agreement by the
Operating Partnership prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities;
(l) The Operating Partnership will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus Supplement
under "Use of Proceeds";
(m) The Operating Partnership will prepare and file or transmit for filing
with the Commission in accordance with Rule 424(b) of the Securities Act copies
of the Prospectus;
(n) The Operating Partnership will use its best efforts to continue to
qualify as a "real estate investment trust" ("REIT") under Sections 856 through
860 of the Internal Revenue Code of 1986, as amended (the "Code") unless the
Operating Partnership's general partner determines that it is no longer in the
best interests of the Operating Partnership to be so qualified;
(o) To take all reasonable action necessary to enable Standard & Poor's
Corporation ("S&P"), Xxxxx'x Investors Service, Inc ("Xxxxx'x"), Fitch Investors
Services, L.P. or any other nationally recognized rating organization to provide
their respective credit ratings of the Securities, as specified in Schedule I
hereto; and
(p) The Operating Partnership and the Company will execute a supplemental
indenture (a "Supplemental Indenture") designating each series of debt
securities to be offered and its related terms and provisions in accordance with
the provisions of the Indenture.
6. The several obligations of the Underwriters hereunder shall be subject
to the performance by the Company and the Operating Partnership of their
respective obligations hereunder and to the following conditions:
(a) the Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by such Rule; no stop order suspending the
effectiveness of the Registration Statement or the Prospectus shall be in
effect, and no proceedings for such purpose shall have been commenced or shall
be pending before or threatened by the Commission to the knowledge, after due
inquiry, of the Company or the Operating Partnership; no stop order suspending
the effectiveness of the Registration Statement or the Prospectus shall be in
effect and no proceedings for such purpose shall have been commenced or shall be
pending before or threatened by the state securities authority of any
jurisdiction, to the knowledge of the Company or the Operating Partnership; and
all requests for additional information on the part of the Commission shall have
been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the Operating
Partnership contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect as if
made on and as of the Closing Date and the Company and the Operating Partnership
shall have complied with all
16
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company or the Operating
Partnership by any "nationally recognized statistical rating organization", as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any material
change in the capital stock, partners' equity or long-term debt of the Company,
the Operating Partnership or any of the Subsidiaries on a consolidated basis,
except as described or contemplated in the Prospectus, or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, properties,
financial position, stockholders' equity, partners' equity or results of
operations of the Company, the Operating Partnership and the Subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Prospectus, the
effect of which in your judgment makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the terms
and in the manner contemplated in the Prospectus and/or the Indenture; and other
than as set forth in the Prospectus, no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or administrative
agency, where an unfavorable decision, ruling or finding could reasonably be
expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a certificate
signed by the Chairman of the Board of Directors or President or Chief Executive
Officer of the Company and the Chief Financial or Accounting Officer of the
Company, in their capacities as officers of the Company, on behalf of the
Company for itself and as general partner of the Operating Partnership,
satisfactory to you to the effect set forth in subsections (a) through (d) of
this Section and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity, partners' equity or
results of operations of the Operating Partnership, the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f) you shall have received on the Closing Date, an opinion or opinions
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Company and the Operating
Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule IV hereto. Each of the
Corporate Subsidiaries is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule IV hereto.
17
(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 Prospectus, and
the Operating Partnership has the partnership power to enter into and
perform its obligations under this Agreement and the Indenture. The
Operating Partnership and each of the 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 IV hereto.
(iii) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P., FISC,
FIFC, FIMC or the Mortgage Partnership 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 contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other instrument 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 we 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 the Properties),
except in each case for violations or defaults which in the aggregate are
not reasonably expected to have a Material Adverse Effect.
(iv) This Agreement was duly and validly authorized, executed and
delivered by the Company and the Operating Partnership.
(v) The execution and delivery of this Agreement and the Indenture,
issuance and sale of the Securities and the performance by the Company and
the Operating Partnership of their respective obligations under the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not require, to such
counsel's knowledge, any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental
body (except such as may be required under the Securities Act, the TIA and
the state securities, Blue Sky or real estate syndication laws in
connection with the purchase and distribution of the Securities by the
Underwriters) and did not and do not conflict with or constitute a breach
or violation of or default under: (1) any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement 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; (2) the
certificate of limited partnership or partnership agreement, as the case
may be, of the Operating Partnership and the Partnership Subsidiaries or
the articles of incorporation or bylaws, as the case may be, of the Company
and the Corporate Subsidiaries; (3) any applicable law, rule or
administrative regulation of the United States or the State of Delaware; or
(4) 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.
18
(vi) None of the Company, the Corporate Subsidiaries, the Operating
Partnership and the Partnership Subsidiaries is required to be registered
under the Investment Company Act of 1940.
(vii) 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 or the TIA, or the by-laws, corporate financing rule and
conflict of interests 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.
(viii) The Registration Statement, at the time it became effective and
the Prospectus, as of its date and as of the Closing Date (in each case,
other than the Form T-1 and the financial statements and supporting
schedule and other financial and statistical data included or incorporated
by reference therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the Securities
Act and the Exchange Act.
(ix) Each of the Underwriters is receiving good, valid and marketable
title to the Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities if the
Underwriters acquire such Securities in good faith and without notice of
any such security interests, mortgages, pledges, liens, encumbrances,
claims or equities.
(x) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed
therein.
(xi) The information in the Prospectus Supplement under "Description
of Notes" and in the Basic Prospectus under "Risk Factors," "Description of
Debt Securities," "Description of Preferred Stock," "Description of
Depository Shares," "Description of Common Stock," "Restrictions on
Transfers of Capital Stock" and "Certain Federal Income Tax Matters," to
the extent that it constitutes statements of law, descriptions of statutes,
rules or regulations, summaries of documents or legal conclusions, has been
reviewed by such counsel and is correct in all material respects and
presents fairly the information required to be disclosed therein.
(xii) To such counsel's knowledge, there is no document or contract of
a character required to be described or referred to in the Registration
Statement and Prospectus or to be filed as exhibits thereto by the
Securities Act other than those described or referred to therein or filed
as exhibits thereto, and the descriptions thereof or references thereto are
accurate in all material respects.
(xiii) The partnership agreement of each of the Operating Partnership
and of each Partnership Subsidiary has been duly authorized, validly
executed and delivered by each of the Company, the Operating Partnership
and the Subsidiaries, to the extent they are parties thereto, and is valid,
legally binding and enforceable in accordance with its terms.
19
(xiv) The issuance of the Securities has been duly authorized by the
Company on behalf of the Operating Partnership, and when executed and
authenticated by the Trustee in accordance with the terms of the Indenture,
and delivered to, and paid for by, the Underwriters in accordance with the
terms of this Agreement, such Securities will constitute valid and legally
binding obligations of the Operating Partnership entitled to the benefits
provided for in the Indenture, enforceable against the Operating
Partnership in accordance with their terms;
(xv) The Indenture has been duly and validly authorized, executed and
delivered by the Company and the Operating Partnership and assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding agreement of the Company and the
Operating Partnership, enforceable against the Company and the Operating
Partnership in accordance with its terms; and the Indenture has been duly
qualified under the TIA;
(xvi) The Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and the
Prospectus under the captions "Description of Notes" and "Description of
Debt Securities";
(xvii) The Registration Statement has been declared effective under
the Securities Act and the Indenture has been qualified under the TIA, the
Prospectus was filed with the Commission pursuant to Rule 424 within the
applicable time period prescribed by Rule 424 and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or the Prospectus has been issued and no proceeding for that
purpose is pending or threatened by the Commission; and
(xviii) The documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (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 Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xix) The Company and the Operating Partnership satisfy all conditions
and requirements for filing the Registration Statement on Form S-3 under
the Act.
(xx) None of the Company, the Corporate Subsidiaries or the
Partnership Subsidiaries is required to be registered as an investment
company under the 1940 Act.
In rendering such opinions, such counsel may rely as a matter of fact, to
the extent such counsel deems proper, on certificates of responsible officers of
the Company, the Operating Partnership and the Subsidiaries and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate or partnership existence or good standing of
the Company, the Operating Partnership and the Subsidiaries. Such opinion may
state that the opinions given pursuant to subparagraphs (xiii), (xiv) and (xv)
are subject to the following exceptions, limitations and qualifications: (i) the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and
20
remedies of creditors; (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or law, and the discretion
of the court before which any proceeding therefor may be brought; (iii) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy; (iv) such counsel expresses no opinion concerning the
enforceability of the waiver of rights or defenses in the Indenture; and (v) the
manner by which the acceleration of the Securities may affect the collectibility
of that portion of the stated principal amount thereof which might be determined
to constitute unearned interest thereon.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and permit the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
In addition, Xxxxxx Xxxxxx & Xxxxxxx shall state that it has participated
in conferences with officers and other representatives of the Company, the
Operating Partnership and the Subsidiaries, representatives of the independent
public accountants for the Company and the Operating Partnership and the
Subsidiaries and representatives of the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed. On the basis thereof, but without independent verification by such
counsel of, and without passing upon or assuming any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement, including the documents
incorporated therein by reference, at the time such Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the Prospectus, as of its
date or at the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, schedules and other financial
and statistical data included in the Registration Statement or the Prospectus or
the Form T-1).
In giving its opinion, such counsel may rely (i) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Operating Partnership,
the Corporate Subsidiaries and the Partnership Subsidiaries, (ii) as to matters
of Maryland law, on the opinion of XxXxxxx, Woods, Battle & Xxxxxx, L.L.P.,
Baltimore, Maryland, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, (iii) as to matters of Illinois
law, on the opinion of Xxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx & Xxxxxxxxx,
Chicago, Illinois, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, and (iv) as to the good standing
and qualification of the Company, the Operating Partnership, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate government officials or opinions
of counsel in such jurisdictions. Counsel need express no opinion (A) as to the
enforceability of forum selection clauses in the federal courts or (B) with
respect to the requirements of, or compliance with, any state securities or
"Blue Sky" or real estate syndication laws;
21
(g) You shall have received on the Closing Date, an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of XxXxxxx,
Woods, Battle & Xxxxxx, L.L.P., special Maryland counsel for the Company, to the
effect that:
(i) Each of the Company and the Corporate Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its respective jurisdiction of incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has corporate
power and authority to own, lease and operate its properties and other
assets and to conduct the business in which it is engaged or proposes to
engage, in each case, as described in the Prospectus, and the Company has
the corporate power and authority to enter into and perform its obligations
under this Agreement and the Indenture.
(iii) The issuance Securities have 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, paid for by, the Underwriters in accordance with the terms of this
Agreement, such Securities will constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefit of the
Indenture and enforceable against the Operating Partnership in accordance
with their respective terms, subject to (A) 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 (B) 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.
(iv) This Agreement was duly and validly authorized, executed and
delivered by the Company, on behalf of itself and the Operating
Partnership.
(v) The execution and delivery of this Agreement and the Indenture,
the performance of the obligations and the consummation of the transaction
set forth herein and therein by the Company will not require, to the
knowledge of such counsel, any consent, approval, authorization or other
order of any Maryland court, regulatory body, administrative agency or
other governmental body (except as such may be required under the
Securities Act or other securities laws) and did not and do not conflict
with or constitute a breach or violation of or default under: (A) the
charter or by-laws, as the case may be, of the Company; and (B) any
applicable Maryland law, rule or administrative regulation or any order or
administrative or court decree of which such counsel is aware, except in
each case for conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material authorization,
approval, consent or order of any Maryland court, governmental authority,
agency or other entity is required in connection with the offering,
issuance or sale of the Securities hereunder, except such as may be
required under Maryland securities, blue sky or real estate syndication
laws.
22
(vii) The information in the Prospectus under "Description of Common
Stock," "Certain Provisions of Maryland Law and The Company's Articles of
Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock"
and in Part II of the Registration Statement under Item 15, to the extent
that it constitutes statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has been reviewed
by such counsel and, as to Maryland law, is correct in all material
respects and presents fairly the information required to be disclosed
therein.
(viii) The Company and each of the Corporate Subsidiaries was
authorized to enter into the partnership agreement of each Partnership
Subsidiary for which the Company or such Corporate Subsidiary, as the case
may be, is the general partner.
(h) You shall have received on the Closing date, an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of Xxxxxx
Xxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx, special Illinois counsel for the
Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company, the
Operating Partnership, FIFC, the Financing Partnership, FIP, FIPC,
Securities, L.P., FRA, FIMC, the Mortgage Partnership, and FISC is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in (a) the documentation evidencing and/or
securing (A) a certain unsecured loan made available to the Operating
Partnership by Union Bank of Switzerland, New York Branch, (B) a certain
loan made available to Harrisburg, L.P. by ORIX USA, Inc., (C) a certain
mortgage loan made available to the Financing Partnership by Nomura Asset
Capital Corporation, (D) a certain mortgage loan made available to the
Mortgage Partnership by Nomura Asset Capital Corporation, and (E) a certain
revolving credit facility made available to the Company by The First
National Bank of Chicago and Union Bank of Switzerland, New York Branch
(such documentation, collectively, the "Credit Documents") and (b) various
pending agreements of purchase and sale into which FR Acquisitions, Inc.
has entered into for the purchase of certain real properties (collectively,
the "Pending Contracts"), except in each case for defaults which 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) the Credit
Documents and the Pending Contracts; (B) any applicable law, rule or
administrative regulation of the United States; or (C) any order or
administrative or court decree issued to or against or concerning the
Company, the Operating Partnership, FIFC, the Financing Partnership, FIP,
FIPC, FIMC, the Mortgage Partnership, Securities, L.P., FRA or FISC, 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.
(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.
23
(iv) The information in the Prospectus Supplement under "Prospectus
Supplement Summary -- Recent Developments" and in the 10-K under Item 2
"The Properties, -- Mortgage Loans" to the extent that it constitutes
statements of law, descriptions of statutes, summaries of documents or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects and presents fairly the information disclosed therein.
(i) On the date hereof, Xxxxxxx & Xxxxxxx L.L.P. shall have furnished to
the Underwriters a letter, dated the date of its delivery, addressed to the
Underwriters and in form and substance satisfactory to the Underwriters (and to
its counsel), confirming that they are independent public accountants with
respect to the Operating Partnership, the Company and the Subsidiaries as
required by the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Registration Statement
and the Prospectus and containing statements and information of the type
ordinarily included in accountants' "comfort letters" as set forth in the
AICPA's Statement on Auditing Standards 72. At the Closing Date, Xxxxxxx &
Xxxxxxx L.L.P. shall have furnished to the Underwriters a letter, dated the date
of its delivery, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from it, that nothing has come to
its attention during the period from the date of the letter referred to in the
prior sentence to a date (specified in the letter) not more than five days prior
to the Closing Date, which would require any change in its letter dated the date
hereof if it were required to be dated and delivered at the Closing Date;
(j) You shall have received on the Closing Date, an opinion, dated the
Closing Date, of Xxxxxx & Xxxxx, counsel for the Underwriters, as to the matters
referred to in clauses (i) (with respect to the Company only) of Section 6(g)
and clauses (ii) (with respect to the Operating Partnership and the first
sentence only), (iv), (viii), (xiv), (xv) (except for the last two clauses), and
(xvi) of Section 6(f) and in addition, Xxxxxx & Xxxxx shall make statements
similar to those contained in the third paragraph following Section 6(f)(xxii)
hereto and shall be entitled to rely on those persons described in the fourth
paragraph following Section 6(d)(xxii) hereto with respect to the matters
described therein.
(k) At the Closing Date, the Securities shall have the ratings accorded by
any "nationally recognized statistical organization," as defined by the
Commission for purposes of Rule 436(g)(2) under the Act if and as specified in
Schedule I hereto, and the Operating Partnership shall have delivered to X.X.
Xxxxxx Securities Inc. a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory X.X. Xxxxxx Securities Inc.,
confirming that the Securities have such ratings. Since the date hereof, there
shall not have occurred a downgrading in the rating assigned to the Securities
or any of the Company's securities or the Operating Partnership's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Securities or any of the
Company's securities or the Operating Partnership's other securities.
(l) If the Registration Statement or an offering of Securities has been
filed with the NASD for review, the NASD shall not have raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(m) At the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of
24
enabling them to pass upon the issuance and sale of the Securities, as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership and the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to Xxxxxx & Xxxxx, counsel for the
Underwriters.
7. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly for
use therein; provided, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company or the Operating Partnership shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such person,
provided further that the Company and the Operating Partnership shall have
complied with their obligations under Section 5(a) hereof with respect to the
Prospectus (as so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors who sign the Registration
Statement and each person who controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Operating Partnership to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company and the
Operating Partnership in writing by such Underwriter through you expressly for
use in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. For purposes of this Section 7 and
Section 4(b), the only written information furnished by the Underwriters to the
Company expressly for use in the Registration Statement and the Prospectus is
(a) the
25
names of the Underwriters on the cover page of the Prospectus specifically
relating to the Securities, (b) the information regarding stabilization on the
inside front cover page of the Prospectus specifically relating to the
Securities, (c) the information in the second paragraph on page S-12, and (d)
the information in the chart, and the third and sixth paragraphs under the
caption "Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, the Operating
Partnership, their directors, their officers who sign the Registration Statement
and such control persons of the Company and the Operating Partnership or
authorized representatives shall be designated in writing by the Company or the
Operating Partnership. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability
26
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (a) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand and the Underwriters on
the other hand from the offering of the Securities or (b) if the allocation
provided by clause (a) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (a) above but also the relative fault of the Company and the
Operating Partnership on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
Operating Partnership and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company and the Operating Partnership on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Operating Partnership on
the one hand or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint,
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
27
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Operating Partnership and (c)
acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in your absolute discretion by notice given to the Operating
Partnership, if after the execution and delivery of this Agreement and prior to
the Closing Date (a) the Company and the Operating Partnership shall have
failed, refused or been unable, at or prior to the Closing Date, to perform any
agreements on its part to be performed hereunder, (b) any other conditions to
the Underwriters' obligations hereunder are not fulfilled, (c) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (d) trading of any
securities of or guaranteed by the Company and the Operating Partnership shall
have been suspended on any exchange or in any over-the-counter market, (e) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities; or (f) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Operating Partnership for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Operating
Partnership. In any such case either you or the Company and the Operating
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
28
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company and the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company and the Operating
Partnership shall be unable to perform their obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the Company
and the Operating Partnership agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 5(k) and
7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by X.X. Xxxxxx Securities Inc. alone on behalf of the Underwriters, and any such
action taken by you jointly or by X.X. Xxxxxx Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Underwriters, c/o X.X. Xxxxxx Securities
Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department,
with a copy to Xxxxxx & Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx X. Xxxx, Xx., Esq. Notices to the Company shall be given to it
at First Industrial Realty Trust, Inc., 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx, 00000, Attention: Xxxxxxx X. Xxxxxx, with a copy to Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Xxxxxx
X. Xxxxxxxxx, Esq.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
29
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President, Chief Executive Officer
and Director
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President, Chief Executive Officer
and Director
Accepted: May 8, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXXX XXXXX & CO.
FIRST CHICAGO CAPITAL MARKETS, INC.
UBS SECURITIES LLC
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: X.X. XXXXXX SECURITIES INC., on
behalf of itself and the several Underwriters
listed in Schedule II hereto
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SCHEDULE I
Underwriters: X.X. Xxxxxx Securities Inc.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxxxxxx Xxxxx Xxxxxx, Xxxxxx &
Xxxxx, Incorporated
First Chicago Capital Markets, Inc.
UBS Securities LLC
Underwriting Agreement dated: May 8, 1997
Registration Statement No.: 333-21873
Title of Securities: 7.60% Notes due 2007 (the "2007 Notes")
7.15% Notes due 2027 (the "2027 Notes")
Aggregate principal amount: $150,000,000
$100,000,000
Price to Public: 99.965%
99.854%
Purchase Price: 99.315%
99.254%
Underwriting Discount: .650% .600%
Indenture: Indenture to be dated as of May 13, 1997 and
the First Supplemental Indenture to be dated
as of May 13, 1997, both between the
Company, the Operating Partnership and the
Trustee.
Maturity: May 15, 2007 for the 2007 Notes; May 15,
2027 for the 2027 Notes.
Interest Rate: The interest rate for the 2007 Notes
is 7.60%; the interest rate for the 2027
Notes is 7.15%.
Interest Payment Dates: Interest on the 2007 Notes and the 2027
Notes is payable semi-annually on May 15th
and November 15th of each year, commencing
November 15, 1997.
Optional Redemption Provisions: The 2007 Notes are redeemable at any time at
the option of the Operating Partnership, and
the 2027 Notes are redeemable at any time
after May 15, 2002, 2002 at the option of
the Operating Partnership; each in whole or
in
part, at a redemption price equal to the
sum of (i) the principal amount of the
Securities being redeemed plus accrued
interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined in
the Supplemental Indenture).
Mandatory Redemption Provisions: The Holders of the 2027 Notes have the right
to require the Operating Partnership to
redeem all or any part of such Holder's 2027
Notes on May 15, 2002, 2002 (or, if such
date is not a business day, on the next
succeeding business day (the "Redemption
Date") at a purchase price equal to 100% of
the aggregate principal amount thereof plus
accrued and unpaid interest to the Mandatory
Redemption Date.
Sinking Fund Provisions: None
Defeasance Provisions: Standard defeasance and covenant
defeasance provisions.
Ratings: Standard & Poor's - "BBB" Fitch Investor
Service, L.P. - "BBB+" Xxxxx'x Investors
Service - "Baa2" Duff & Xxxxxx - "BBB"
Lockup Provisions: None
Other Provisions: None
Closing Date and Time of Delivery: May 13, 1997, 9:00 a.m.
Closing Location: Xxxxxx & Xxxxx 000 Xxxx Xxxxxx Xxx Xxxx,
XX 00000
2
SCHEDULE II
Principal Amount Principal Amount
of 2007 Notes of 2007 Notes
Underwriters To Be Purchased To Be Purchased
------------ --------------- ---------------
X.X. Xxxxxx Securities Inc........... $ 97,500,000 $ 65,000,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx......... 18,750,000 12,500,000
Securities Corporation............. 18,750,000 12,500,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated............... 7,500,000 5,000,000
First Chicago Capital Markets, Inc.
UBS Securities LLC................... 7,500,000 5,000,000
------------ -------------
Total.............................. $150,000,000 $100,000,000
============ ============
SCHEDULE III
SUBSIDIARIES
------------
First Industrial Securities Corporation
First Industrial Securities, L.P.
First Industrial Mortgage Corporation
First Industrial Mortgage Partnership, L.P.
First Industrial Financing Corporation
First Industrial Financing Partnership, L.P.
First Industrial Indianapolis Corporation
First Industrial Indianapolis, L.P.
First Industrial Harrisburg Corporation
First Industrial Harrisburg, L.P.
First Industrial Development Services Group, L.P.
FI Development Services Corporation
First Industrial Pennsylvania Corporation
First Industrial Pennsylvania Partnership, L.P.
FR Acquisitions, Inc.
First Industrial Management Corporation
SCHEDULE IV
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
------- ------------
First Industrial, L.P. Alabama
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois
Michigan
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Alabama
Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Alabama
Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Alabama
Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
2
First Industrial (Atlanta) Management Corporation Georgia
Illinois
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia*
Illinois*
Michigan*
Minnesota*
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
--------------------------
* Denotes jurisdictions on which counsel is opining.
3
