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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of earliest event reported: April 23, 1998
Date of Report: May 1, 1998
First Industrial Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland 1-13102 36-3935116
(State or other (Reporting File (I.R.S. Employer
jurisdiction of organization) Number) Identification No.)
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 344-4300
(Registrant's telephone number, including area code)
-2-
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit
Number Exhibit
------ -------
1.1 Purchase Agreement, dated April 23, 1998, relating to
1,112,644 shares of Common Stock, par value $.01 per
share (the "Common Stock"), between First Industrial
Realty Trust, Inc. (the "Company"), First Industrial,
L.P. (the "Operating Partnership") and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the
"Purchaser").
4.1 Registration Rights Agreement, dated April 29, 1998,
relating to the Common Stock, between the Company,
the Operating Partnership and the Purchaser.
-3-
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/Michael J. Havala
-------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
and Secretary
Date: May 1, 1998
Exhibit Index
-------------
Exhibit
- -------
Number Exhibit
- ------ -------
1.1 Purchase Agreement, dated April 23, 1998, relating to
1,112,644 shares of Common Stock, between the Company, the
Operating Partnership and the Purchaser.
4.1 Registration Rights Agreement, dated April 29, 1998, relating
to the Common Stock, between the Company, the Operating
Partnership and the Purchaser.
================================================================================
FIRST INDUSTRIAL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock
PURCHASE AGREEMENT
Dated: April 23, 1998
================================================================================
1,112,644 Shares
of Common Stock
PURCHASE AGREEMENT
------------------
April 23, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation
(the "Company"), confirms its agreement to issue and sell 1,112,644 shares of
Common Stock, par value $.01 per share (the "Shares"), to Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Purchaser"). The Purchaser intends to deposit
the Shares with the trustee of the Equity Investor Fund Cohen & Steers Realty
Majors Portfolio (a Unit Investment Trust) (the "Trust"), a registered unit
investment trust under the Investment Company Act of 1940, as amended, for which
the Purchaser acts as sponsor and depositor, in exchange for units in the Trust.
The Shares to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the "Common Stock." First Industrial,
L.P., a Delaware limited partnership of which the Company is the sole general
partner, is hereinafter referred to as the "Operating Partnership."
1. Offering Memorandum. The Shares are to be offered and
sold to the Purchaser without being registered under the Securities Act of 1933,
as amended (the "Securities Act"), in reliance upon exemptions therefrom. In
connection with the issuance of the Shares, the Company has prepared and
delivered to the Purchaser a copy of a private placement memorandum dated as of
the date hereof (as amended or supplemented, the "Offering Memorandum"). The
Offering Memorandum is deemed to include all exhibits thereto and any documents
incorporated therein by reference. All references in this Agreement to financial
statements and schedules and other information which are "contained," "included"
or "stated" in the Offering Memorandum (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information which are included as exhibits to or incorporated by
reference in the Offering Memorandum; and all references in this Agreement to
amendments or supplements to the Offering Memorandum shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of 1934
(the "Exchange Act") which is incorporated by reference in the Offering
Memorandum. Capitalized terms used but not otherwise defined shall have the
meanings given to those terms in the Offering Memorandum.
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees
to issue and sell the Shares and the Purchaser agrees to purchase from the
Company at a price per share of $30.9122 (the "Purchase Price"), the number of
Shares set forth in the first paragraph hereto.
3. Terms of Placement. The Company is advised by you that
the Purchaser proposes to deposit the Shares with the trustee of the Trust a
registered unit investment trust under the Investment Company Act of 1940, as
amended, to which Merrill Lynch, Pierce, Fenner & Smith Incorporated acts as
sponsor and depositor, in exchange for units in the Trust (the "Offering") as
soon after the execution and delivery hereof as advisable in the judgment of
Purchaser.
4. Delivery and Payment. Delivery to the Purchaser of
certificates for, and payment of the Purchase Price for the Shares shall be
made, subject to Section 9, at 10:00 A.M., New York City time, on the third
business day or such other time not later than ten business days after such date
as shall be agreed upon by the Purchaser and the Company (such time and date of
payment and delivery being herein called the "Closing Date") at the offices of
Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166. The Closing Date
and the location of, delivery of and the form of payment for the Shares may be
varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such name
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date. Such certificates shall be
made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date. Certificates in
temporary form evidencing the Shares shall be delivered to you on the Closing
Date, with any transfer taxes thereon duly paid by the Company, for the account
of the Purchaser, against payment of the Purchase Price therefor by intra-bank
transfer or wire transfer of same day funds to such account as may be designated
by the Company at least two business days prior to the Closing Date.
5. Agreements of the Company and the Operating
Partnership. Each of the Company and the Operating Partnership severally agrees
with you as follows:
(a) The Company will deliver to the Purchaser, as promptly
as possible, one copy of the Offering Memorandum and of each amendment
and supplement thereto (including documents incorporated by reference
therein) as the Purchaser may reasonably request. The Company consents
to the delivery of the Offering Memorandum and any amendment or
supplement thereto by the Purchaser to the Unit Trust, in connection
with the deposit of the Shares with the trustee of the Trust in
exchange for units in the Trust, as contemplated herein.
(b) Prior to the completion of the deposit of the Shares
into the Trust, the Company will notify the Purchaser promptly, and, if
requested by Purchaser, confirm such notice in writing, of (i) the
happening of any event which makes any statement of a material fact
made in the Offering Memorandum untrue or which requires the making of
any additions to or changes in the Offering Memorandum in order to make
the statements therein not misleading or (ii) the initiation of any
proceedings for the purpose of suspending the use of the Offering
Memorandum.
(c) Neither the Company nor the Operating Partnership will
offer, sell or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in the Securities
2
Act) which will be integrated with the sale of any of the Shares in a
manner that would require the registration of any of the Shares under
the Securities Act.
(d) If any event shall occur as a result of which, in the
opinion of counsel for the Purchaser, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements
therein, in light of the circumstances existing when the Offering
Memorandum is delivered to the Trust, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
any law, the Company will forthwith prepare an appropriate amendment or
supplement to the Offering Memorandum (in form and substance reasonably
satisfactory to counsel for the Purchaser) so that the statements in
the Offering Memorandum, as so amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing when it is so delivered, not
misleading, or so that the Offering Memorandum will comply with any
law, and to furnish to the Purchaser and to such dealers as you shall
specify, such number of copies thereof as such Purchaser or dealers may
reasonably request.
(e) The Company will use its best efforts, in cooperation
with the Purchaser, to qualify, register or perfect exemptions for the
Shares for offer and sale by the Purchaser under the applicable state
securities or Blue Sky laws and real estate syndication laws of such
jurisdictions as you may reasonably request; provided, however, the
Company will not be required to qualify as a foreign corporation, file
a general consent to service of process in any such jurisdiction,
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject, or provide any
undertaking or make any change in its charter or by-laws that the Board
of Directors of the Company reasonably determines to be contrary to the
best interests of the Company and its stockholders. In each
jurisdiction in which the Shares have been so qualified or registered,
the Company will use all reasonable efforts to file such statements and
reports as may be required by the laws of such jurisdiction, to
continue such qualification or registration in effect for so long a
period as the Purchaser may reasonably request for the distribution of
the Shares and to file such consents to service of process or other
documents as may be necessary in order to effect such qualification or
registration; provided, however, the Company will not be required to
qualify as a foreign corporation, file a general consent to service of
process in any such jurisdiction, subject itself to taxation in respect
of doing business in any jurisdiction in which it is not otherwise so
subject, or provide any undertaking or make any change in its charter
or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders.
(f) During the period of five years after the date of this
Agreement, the Company will furnish to the Purchaser as soon as
available (x) a copy of each regular and periodic report, financial
statement or other publicly available information of the Company and
any of its subsidiaries mailed to the holders of the Shares or filed
with the Securities and Exchange Commission (the "Commission") or any
securities exchange and (y) such other publicly available information
concerning the Company and any of its Subsidiaries as you may
reasonably request.
3
(g) The Company will 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.
(h) The Company will pay all costs, expenses, fees and
taxes incident to (i) the preparation and printing of the Offering
Memorandum, (ii) the printing and delivery of this Agreement, the
Registration Rights Agreement among the Company, the Operating
Partnership and the Purchaser, in the form attached hereto as Annex A
(the "Registration Rights Agreement"), and the Blue Sky Memorandum,
(iii) the qualification or registration of the Shares for offer and
sale under the securities, Blue Sky laws or real estate syndication
laws of the several states in accordance with Section 5(e) hereof, (iv)
the fee of and the filings and clearance, if any, with the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
the Offering, (v) the fee of and the listing of the Shares on the New
York Stock Exchange, Inc. ("NYSE"), (vi) the preparation, issuance and
delivery of certificates for the Shares to the Purchaser, (vii) the
costs and charges of any transfer agent or registrar, (viii) any
transfer taxes imposed on the sale by the Company of the Shares to the
Purchaser and (ix) the fees and disbursements of the Company's counsel
and accountants.
(i) The Company will use its best efforts to maintain the
listing of the shares of the Company's common stock (including, when
registered, the Shares) on the NYSE for a period of two years after the
Closing Date and thereafter unless the Company's Board of Directors
determines that it is no longer in the best interests of the Company
for the shares of common stock (or the Shares) to continue to be so
listed.
(j) The Company will use its best efforts to do and perform
all things required to be done and performed under this Agreement by
the Company prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Shares.
(k) The Company will use the net proceeds received by it
from the sale of the Shares in the manner specified in the Offering
Memorandum under "Use of Proceeds."
(l) The Company will use its best efforts to continue to
qualify as a "real estate investment trust" ("REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), unless the Company's Board of Directors determines that it is
no longer in the best interests of the Company to be so qualified.
(m) The Company will not at any time, directly or
indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute,
stabilization of the price of the Shares to facilitate the sale or
resale of any of the Shares in violation of the Securities Act.
(n) No general solicitation or general advertising (within
the meaning of Rule 502(c) under the 1933 Act) will be used in the
United States in connection with the offering of the Shares.
4
6. Representations and Warranties of the Purchaser.
------------------------------------------------
(a) The Purchaser is purchasing the Shares for its own
account and intends to deposit the Shares in the Trust for investment
and not with a view to the distribution thereof or with any present
intention of distributing any of the Shares.
(b) The Purchaser has been provided an opportunity to ask
questions of, and has received answers thereto satisfactory to it from,
the Company and its representatives regarding the terms and conditions
of the offering of the Shares, and it has obtained all additional
information requested by it of the Company and its representatives to
verify the accuracy of all information furnished to it regarding the
offering of the Shares.
(c) The Purchaser has such knowledge and experience in
financial affairs that it is capable of evaluating the merits and risks
of purchasing the Shares purchased by it, and it has not relied in
connection with this investment upon any representations, warranties or
agreements other than those set forth in this Agreement and the
Registration Rights Agreement. Its financial situation is such that it
can afford to bear the economic risk of holding the Shares for an
indefinite period of time, and can afford to suffer the complete loss
of its investment in the Shares. It is an "accredited investor" as such
term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
(d) The Purchaser is acquiring the Shares to be purchased
by it pursuant to this Agreement for deposit with the Trust and not
with a view to any distribution of all or any part of such Shares. The
Purchaser hereby agrees that, except as contemplated by this Agreement,
it will not, directly or indirectly, assign, transfer, offer, sell,
pledge, hypothecate or otherwise dispose of all or any part of such
Shares (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of all or any part of the Shares) except in accordance
with the registration provisions of the Securities Act or an exemption
from such registration provisions, and in accordance with any
applicable state or other securities laws. It understands that it must
bear the economic risk of an investment in the Shares for an indefinite
period of time because, among other reasons, the offering and sale of
the Shares have not been registered under the Securities Act and,
therefore, the Shares cannot be sold unless they are subsequently
registered under the Securities Act or an exemption from such
registration is available. The Purchaser also understands that sales or
transfer of the Shares are further restricted by the provisions of
state and other securities laws.
7. Representations and Warranties of the Company and the
Operating Partnership. The Company and the Operating Partnership, jointly and
severally, represent and warrant to the Purchaser as of the date hereof and the
Closing Date that:
(a) Neither the Company nor any of its affiliates, as such
term is defined in Rule 501(b) under the Securities Act (each, an
"Affiliate"), has, directly or indirectly, solicited any offer to buy,
sold or offered to sell or otherwise negotiated in respect of, or will
solicit any offer to buy or offer to sell or otherwise negotiate in
respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale of
the Shares in a manner that would require the Shares to be registered
under the Securities Act.
5
(b) The Offering Memorandum does not, and at the Closing
Date will not, include 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 under which they were made,
not misleading; provided that this representation, warranty and
agreement shall not apply to statements in or omissions from the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company in writing by the Purchaser
expressly for use in the Offering Memorandum.
(c) The Offering Memorandum shall include as an exhibit
thereto the most recent Annual Report of the Company on Form 10-K filed
with the Commission and each Quarterly Report of the Company on Form
10-Q and each Current Report of the Company on Form 8-K filed with the
Commission since the filing of the end of the fiscal year to which such
Annual Report relates. The documents included in the Offering
Memorandum at the time they were filed with the Commission complied and
will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder
(the "Exchange Act Regulations"), and, when read together with the
other information in the Offering Memorandum, at the date of the
Offering Memorandum and at the Closing Date, do not and will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The accountants who certified the financial statements
and supporting schedules included in the Offering Memorandum are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Regulation S-X under the Securities
Act.
(e) The financial statements, together with the related
schedules and notes, included in the Offering Memorandum present fairly
the financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
for the periods specified; said financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Offering Memorandum
present fairly in accordance with GAAP the information required to be
stated therein.
(f) The Company has been duly organized and is validly
existing as a corporation under and by virtue of the laws of the State
of Maryland, and is in good standing with the State Department of
Assessments and Taxation of Maryland. The Operating Partnership has
been duly organized and is validly existing as a limited partnership in
good standing under and by virtue of the Delaware Uniform Limited
Partnership Act. Each of First Industrial Financing Partnership, L.P.
(the "Financing Partnership"), First Industrial Securities, L.P.
("Securities, L.P."), First Industrial Mortgage Partnership, L.P. (the
"Mortgage Partnership"), First Industrial Indianapolis, L.P. ("FII"),
First Industrial Harrisburg, L.P. ("FIH"), First Industrial Development
Services, L.P. ("DSG") and First Industrial Pennsylvania Partnership,
L.P. ("FIP") (the Financing Partnership, Securities, L.P., the Mortgage
Partnership, FII, FIH, DSG and FIP are referred to collectively herein
as the "Partnership Subsidiaries") has been
6
duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of
organization. F.R. Development Services, L.L.C. ("FRDS") has been duly
organized and is validly existing as a limited liability corporation in
good standing under and by virtue of the laws of its jurisdiction of
organization. Each of First Industrial Securities Corporation ("FISC"),
First Industrial Finance Corporation ("FIFC"), First Industrial
Mortgage Corporation ("FIM"), First Industrial Pennsylvania Corporation
("FIPC"), First Industrial Indianapolis Corporation ("FIIC"), First
Industrial Harrisburg Corporation ("FIHC"), FI Development Services
Corporation ("FIDSC"), FR Acquisitions, Inc. ("FRA") and First
Industrial Management Corporation ("FIMC," and together with FISC,
FIFC, FIM, FIPC, FIIC, FIHC, FIDSC and FRA are referred to collectively
herein as the "Corporate Subsidiaries," and the Partnership
Subsidiaries and the Corporate Subsidiaries are referred to herein
collectively as the "Subsidiaries"), has been duly organized and is
validly existing as a corporation in good standing under and by virtue
of the laws of its jurisdiction of incorporation. Other than the
Corporate Subsidiaries, the Partnership Subsidiaries and FRDS, no
entities in which the Company owns any equity securities constitute,
individually or in the aggregate, a "significant subsidiary" under Rule
1-02 of Regulation S-X promulgated under the Exchange Act. The Company
is the sole general partner of the Operating Partnership. FIFC is a
wholly-owned subsidiary of the Company and is the sole general partner
of the Financing Partnership. FIM is a wholly-owned subsidiary of the
Company and is the sole general partner of the Mortgage Partnership.
FISC is a wholly-owned subsidiary of the Company and is the sole
general partner of Securities, L.P. The Operating Partnership and FISC
are the only limited partners of Securities, L.P. FIPC is a
wholly-owned subsidiary of the Company and is the sole general partner
of FIP. FIIC is a wholly-owned subsidiary of the Company and is the
sole general partner of FII. FIHC is a wholly-owned subsidiary of the
Company and is the sole general partner of FIH. FIDSC is a wholly-owned
subsidiary of the Company and is the sole general partner of DSG. FRDS
is a wholly-owned subsidiary of the Operating Partnership. The
Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Company, the Operating
Partnership and each of the Subsidiaries has, and at the Closing Date
will have, full corporate or partnership power and authority, as the
case may be, to conduct all the activities conducted by it, to own,
lease or operate all the properties and other assets owned, leased or
operated by it and to conduct its business in which it engages or
proposes to engage as described in the Offering Memorandum and the
transactions contemplated hereby and thereby. The Company and each of
the Corporate Subsidiaries is, and at the Closing Date will be, duly
qualified or registered to do business and in good standing as a
foreign corporation in all jurisdictions in which the nature of the
activities conducted by it or the character of the properties and
assets owned, leased or operated by it makes such qualification or
registration necessary, except where failure to obtain such
qualifications or registration will not have a material adverse effect
on (i) the condition, financial or otherwise, or the earnings, assets
or business affairs or prospects of the Operating Partnership, Company
and their Subsidiaries, taken as a whole or on the 769 in service
properties owned, directly or indirectly, by the Company as of December
31, 1997, (the "Properties") taken as a whole, (ii) the issuance,
validity or enforceability of the Shares or the enforceability of the
Registration Rights Agreement (as defined below) or (iii) the
consummation of any of the transactions contemplated by this Agreement
and/or the Registration Rights Agreement (each a "Material Adverse
Effect"), which jurisdictions of foreign qualification or registration
are attached on Schedule I hereto. The Operating Partnership and each
7
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 I 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 Purchaser or its
counsel have been delivered to the Purchaser or its counsel.
(g) The Company's authorized capitalization consists of
10,000,000 shares of preferred stock, par value $.01 per share,
100,000,000 shares of common stock, par value $.01 per share, and
65,000,000 shares of excess stock, par value $.01 per share. All of the
Company's issued and outstanding shares of common stock and preferred
stock have been duly authorized and are validly issued, fully paid and
non-assessable and will have been offered and sold in compliance, in
all material respects, with all applicable laws (including, without
limitation, federal or state securities laws).
(h) The Shares have been duly authorized for issuance and
sale to the Purchaser pursuant to this Agreement and, when validly
issued and delivered pursuant to this Agreement against payment of the
Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar
right and will have been offered and sold in compliance, in all
material respects, with all applicable laws (including, without
limitation, federal or state securities laws). The description of the
Shares, and the statements related thereto, contained in the Offering
Memorandum are, and at the Closing Date, will be, complete and accurate
in all material respects. Upon payment of the Purchase Price and
delivery of certificates representing the Shares in accordance
herewith, the Purchaser will receive good, valid and marketable title
to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. No shares of common
or preferred stock of the Company are reserved for any purpose other
than securities to be issued pursuant to this Agreement and except as
disclosed in the Offering Memorandum.
(i) As of the Closing Date, the partnership agreement of
the Operating Partnership will have been duly authorized, executed and
delivered by the Company, as the general partner and as a limited
partner and the partnership agreement of each Partnership Subsidiary,
other than the Operating Partnership, will have been duly authorized,
validly executed and delivered by each partner thereto and is valid,
legally binding and 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; immediately following the Closing Date, all of the issued and
outstanding shares of capital stock of each Corporate Subsidiary will
have been duly authorized and are validly issued, fully paid and
non-assessable and
9
(except as described in the Offering Memorandum) will be owned directly
or indirectly by the Company or the Operating Partnership, free and
clear of all security interests, liens and encumbrances, (except for
pledges in connection with the loan agreements of the Company and the
Subsidiaries) and all of the partnership interests in each Partnership
Subsidiary will have been duly authorized and validly issued, fully
paid and (except as described in the Offering Memorandum) will be owned
directly or indirectly by the Company or the Operating Partnership,
free and clear of all security interests, liens and encumbrances
(except for pledges in connection with the loan agreements of the
Company and the Subsidiaries).
(j) Subsequent to the respective dates as of which
information is given in the Offering Memorandum and prior to the
Closing Date, (i) there has not been and will not have been, except as
set forth in or contemplated by the Offering Memorandum, any change in
the capitalization, long term or short term debt or in the capital
stock or equity of the Company or any of its Subsidiaries which would
be material to the Company and its Subsidiaries considered as one
enterprise (anything which would be material to the Company and its
Subsidiaries, considered as one enterprise, being hereinafter referred
to as "Material"), (ii) except as described in the Offering Memorandum,
neither the Company nor any of its Subsidiaries has incurred nor will
any of them incur any liabilities or obligations, direct or contingent,
which would be Material, nor has any of them entered into nor will any
of them enter into any transactions, other than pursuant to this
Agreement and the transactions referred to herein or as contemplated in
the Offering Memorandum, which would be Material, (iii) there has not
been any Material Adverse Effect, and (iv) except for regular quarterly
distributions on the Company's shares of common stock, par value $0.01
per share (the "Common Stock"), and the dividends on the shares of the
Company's (a) Series A Preferred Stock, par value $.01 per share (the
"Series A Preferred Stock"); (b) Depositary Shares each representing
1/100 of a Share of 8 3/4 Series B Preferred Stock (the "Series B
Preferred Stock"); (c) Depositary Shares each representing 1/100 of a
Share of 8_ Series C Preferred Stock (the "Series C Preferred Stock");
(d) Depositary Shares each representing 1/100 of a Share of 7.95 Series
D Preferred Stock (the "Series D Preferred Stock"); and (e) Depositary
Shares each representing 1/100 of a Share of 7.90% Series E Preferred
Stock (the "Series E Preferred Stock"), the Company has not paid or
declared and will not pay or declare any dividends or other
distributions of any kind on any class of its capital stock.
(k) Neither the Company nor any of its 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").
(l) To the knowledge of the Company, except as set forth in
the Offering Memorandum, there are no actions, suits, proceedings,
investigations or inquiries pending or, after due inquiry, threatened
against or affecting the Company or any of its 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.
9
(m) The Company and each of its Subsidiaries (i) has, and
at the Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry
on its business as contemplated in the Offering Memorandum and are in
material compliance with such, and (B) complied in all material
respects with all laws, regulations and orders applicable to it or its
business and (ii) is 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
Company and each of its Subsidiaries, after due inquiry, no other party
under any Material contract or other agreement to which it is a party
is in default thereunder, except where such default will not have a
Material Adverse Effect. Neither the Company nor any of its
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.
(n) No Material consent, approval, authorization or order
of, or any filing or declaration with, any court or governmental agency
or body or any other entity is required in connection with the
offering, issuance or sale of the Shares hereunder except such as have
been obtained under the Securities Act and the Exchange Act and such as
may be required under state securities, Blue Sky or real estate
syndication laws, or the by-laws, the corporate financing rule or the
conflict of interest rule of the NASD or the requirements of the NYSE
in connection with the purchase and distribution by the Purchaser of
the Shares or such as have been received prior to the date of this
Agreement, and except for the filing of this Agreement with the
Commission as an exhibit to a Form 8-K, which the Company agrees to
make in a timely manner.
(o) The Company and the Operating Partnership have full
corporate or partnership power, as the case may be, to enter into this
Agreement and the Registration Rights Agreement, to the extent each is
a party thereto. Each of this Agreement and the Registration Rights
Agreement has been duly and validly authorized, executed and delivered
by the Company and the Operating Partnership, to the extent each is a
party thereto and constitutes a valid and binding agreement of the
Company and the Operating Partnership, to the extent each is a party
thereto, and assuming due authorization, execution and delivery by the
Purchaser, is enforceable, against the Company and the Operating
Partnership, to the extent each is a party thereto, in accordance with
the terms hereof subject to (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
now or hereafter in effect relating to or affecting the rights and
remedies of creditors and (ii) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding
therefor may be brought. The execution, delivery and performance of
each of this Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated hereby and
10
thereby and the compliance by each of the Company and the Subsidiaries
with their obligations hereunder and thereunder, will not result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets or properties of the Company or any of its 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, partnership agreement
or other organizational documents of the Company or any of its
Subsidiaries, any Contract or Other Agreement to which the Company or
any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries or any of their assets or properties are bound or
affected, or violate or conflict with any judgment, ruling, decree,
order, statute, rule or regulation of any court or other governmental
agency (foreign or domestic) or body applicable to the business or
properties of the Company or any of its 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.
(p) As of the Closing Date, the Company and each of its
subsidiaries will have good and marketable title to all Material
properties and assets described in the Offering Memorandum as owned by
it, free and clear of all liens, encumbrances, claims, security
interests and defects, except such as are described in the Offering
Memorandum, or such as secure the loan facilities of the Company and
the Subsidiaries, or would not result in a Material Adverse Effect.
(q) To the knowledge of the Company: (i) no lessee of any
portion of the Properties is in default under any of the leases
governing such properties and there is no event which, but for the
passage of time or the giving of notice, or both, would constitute a
default under any of such leases, except in each case such defaults
that would not have a Material Adverse Effect; (ii) the current use and
occupancy of each of the Properties complies in all material respects
with all applicable codes and zoning laws and regulations, except for
such failures to comply which would not individually or in the
aggregate have a Material Adverse Effect; and (iii) there is no pending
or threatened condemnation, zoning change, environmental or other
proceeding or action that will in any material respect affect the size
of, use of, improvements on, construction on, or access to the
Properties except such proceedings or actions that would not have a
Material Adverse Effect.
(r) The Company and the Partnership Subsidiaries have
property, title, casualty and liability insurance in favor of 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 Company and the
Partnership Subsidiaries except in such instances where the tenant is
carrying such insurance or the tenant is self-insuring such risks.
(s) Except as disclosed in the Offering Memorandum, and,
except for activities, conditions, circumstances or matters that would
not have a Material Adverse Effect; (A) to the knowledge of the Company
and its Subsidiaries, after due inquiry, the operations of the Company
and its Subsidiaries are in compliance with all Environmental Laws (as
defined
11
below) and all requirements of applicable permits, licenses, approvals
and other authorizations issued pursuant to Environmental Laws; (B) to
the knowledge of the Company and its Subsidiaries, after due inquiry,
none of the Company or its 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; (C) none of the Company or its 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; (D) none of
the Company or its 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 (E) no Property is included or, to
the knowledge of the Company and its Subsidiaries, after due inquiry,
proposed for inclusion on the National Priorities List issued pursuant
to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA"), or included on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA, and none of the Company and its
Subsidiaries has actual knowledge that any Property has otherwise been
identified in a published writing by the EPA as a potential CERCLA
removal, remedial or response site or, to the knowledge of the Company
and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law.
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic substance, pollutant or
hazardous material, including, without limitation, oil, petroleum or
any petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste which is subject
to regulation under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. Section
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. Section 9601 et seq.) ("CERCLA"), the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
Section 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
Section 7401, et seq.), the Clean Water Act, as amended (33 U.S.C.
Section 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Section 2601, et seq.), the Occupational Safety and Health
Act of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 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 En-
12
vironmental Law; "Lien" shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing and containing a residue of any
Hazardous Substance.
None of the environmental consultants which prepared
environmental and asbestos inspection reports with respect to any of
the Properties was employed for such purpose on a contingent basis or
has any substantial interest in the Company or any of its Subsidiaries,
and none of them nor any of their directors, officers or employees is
connected with the Company or any of its Subsidiaries as a promoter,
selling agent, voting trustee, director, officer or employee.
(t) The Company and its Subsidiaries are organized and
operate in a manner so as to qualify as a real estate investment trust
(the "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
and its Subsidiaries intend to continue to qualify as a REIT for the
foreseeable future.
(u) There is no material document or contract of a
character required to be described or referred to in the Offering
Memorandum which is not described as required therein.
(v) None of the Company or any of its Subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company or
its Subsidiaries, after due inquiry, is any such dispute threatened
which would have a Material Adverse Effect.
(w) The Company and its Subsidiaries own, or are licensed
or otherwise have the full exclusive right to use, all material
trademarks and trade names which are used in or necessary for the
conduct of their respective businesses as described in the Offering
Memorandum. To the knowledge of the Company, no claims have been
asserted by any person to the use of any such trademarks or trade names
or challenging or questioning the validity or effectiveness of any such
trademark or trade name. The use, in connection with the business and
operations of the Company and its Subsidiaries, of such trademarks and
trade names does not, to the Company's knowledge, infringe on the
rights of any person.
(x) The Company and each of its Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so
file would not result in a Material Adverse Effect) and has paid all
taxes required to be paid and any other assessment, fine or penalty
levied against it, to the extent that any of the foregoing would
otherwise be delinquent, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect.
13
(y) Each of the Partnership Subsidiaries is properly
treated as a partnership for federal income tax purposes and not as a
"publicly traded partnership."
(z) No relationship, direct or indirect, exists between or
among the Company or the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or the Subsidiaries on the other hand, which is required by the
Securities Act to be described in the Offering Memorandum which is not
so described;
(aa) The Company has not taken and will not take, directly
or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Shares, and the Company has not distributed and have
agreed not to distribute any offering material in connection with the
offering and sale of the Shares other than the Offering Memorandum or
other material permitted by the Securities Act (which were disclosed to
you and your counsel);
(ab) 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;
(ac) No proceeding for the purpose of suspending the use of
the Offering Memorandum has been instituted, or to the knowledge of the
Company, threatened by the Commission or by the state securities
authority of any jurisdiction;
(ad) Assuming the compliance by the Purchaser with the
agreements set forth herein, it is not necessary, in connection with
the issuance and sale of the Shares to the Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum, to register
the Shares under the Securities Act;
(ae) Neither the Company nor any of its Affiliates nor any
person acting on behalf of any of them (other than the Purchaser, as to
whom the Company makes no representation) has nor will solicit any
offer to buy or offer to sell the Shares by means of any general
solicitation or general advertising (as those terms are used in Rule
502(c) under the Securities Act) or in any manner involving a public
offering, within the meaning of Section 4(2) of the Securities Act, or
under circumstances that would require the registration of the Shares
under the Securities Act or securities law of any of the states in the
United States;
(af) Neither the Company, its affiliated purchasers (as
defined in Rule 10b-6 and Regulation M under the 1934 Act) nor any
person acting on their behalf (other than the Purchaser, for which the
Company makes no representation) have taken, directly or indirectly,
any action prohibited by Rule 10b-6 or Regulation M under the Exchange
Act in connection with the issue of the Shares;
14
(ag) Neither the Company nor any of its affiliates (as
defined in Rule 501(b) under the Securities Act) have, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any security (as such term is
defined in the Securities Act), which is or will be integrated with the
sale of the Shares in a manner that would require registration of the
Shares under the Securities Act;
(ah) Any certificate or other document signed by any officer
or authorized representative of the Company or any Subsidiary, and
delivered to the Purchaser or to counsel for the Purchaser in
connection with the sale of the Shares shall be deemed a representation
and warranty by such entity or person, as the case may be, to the
Purchaser as to the matters covered thereby; and
(ai) On the Closing Date, the Shares will be duly authorized
for listing on the NYSE subject to official notice of issuance;
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Purchaser and each person, if any, who controls the Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or
in any amendment or supplement thereto), or arising out of or based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements not
misleading, except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
the information relating to the Purchaser furnished in writing to the
Company by or on behalf of the Purchaser through you expressly for use
in connection therewith. The foregoing indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought
against the Purchaser or any person controlling the Purchaser in
respect of which indemnity may be sought against the Company, the
Purchaser or such controlling person shall promptly notify the Company
and the Company shall assume the defense thereof, including the
employment of counsel and payment of all fees and expenses. The
Purchaser or any such controlling person shall have the right to employ
separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Purchaser or such controlling
person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the Purchaser
or such controlling person and the Company and the Purchaser or such
controlling person shall have been advised by its counsel that
representation of such indemnified party and the Company by the same
counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same
counsel has been proposed) due to actual or potential differing
interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on
be-
15
half of the Purchaser or such controlling person). It is understood,
however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for the Purchaser and
controlling persons not having actual or potential differing interests
with you or among themselves, which firm shall be designated in writing
by the Purchaser, and that all such fees and expenses shall be
reimbursed as they are incurred. The Company shall not be liable for
any settlement of any such action, suit or proceeding effected without
its written consent, but if settled with such written consent, or if
there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless the
Purchaser, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) The Purchaser agrees to indemnify and hold harmless the
Company and any person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to the
Purchaser, but only with respect to information relating to the
Purchaser furnished in writing by or on behalf of the Purchaser through
you expressly for use in the Offering Memorandum (or any amendment or
supplement thereto). If any action, suit or proceeding shall be brought
against the Company, any of its directors, any such officer, or any
such controlling person based on the Offering Memorandum (or any
amendment or supplement thereto), and in respect of which indemnity may
be sought against the Purchaser pursuant to this paragraph (c), the
Purchaser shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the
defense thereof, the Purchaser shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the Purchaser's
expense), and the Company, its directors, any such officer, and any
such controlling person shall have the rights and duties given to the
Purchaser by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Purchaser may otherwise
have.
(d) If the indemnification provided for in this Section 8
is unavailable to an indemnified party under paragraphs (a) or (c)
hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Purchaser on the other hand from the offering of
the Shares, or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Purchaser on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Purchaser on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bears to the difference between the total price
paid by the Purchaser to the Company for the Shares and the total price
paid by the Trust to the Purchaser in connection with the deposit of
the Shares therein. The relative fault of the Company on the one hand
and the Purchaser on the other
16
hand 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 on the one hand or by the Purchaser
on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 8 were
determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating any claim or defending any such
action, suit or proceeding. Notwithstanding the provisions of this
Section 8, the Purchaser shall not be required to contribute any amount
in excess of the amount by which the total price of the Shares
purchased by it and deposited in the Trust exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
action, suit or proceeding.
(g) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 8(a) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii)
such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement
of the nature contemplated by Section 8(a) effected without its consent
if such indemnifying party (i) reimburses such indemnified party in
accordance with such request to the extent it considers such request to
be reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior
to the date of such settlement.
(h) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are in-
17
curred. The indemnity and contribution agreements contained in this
Section 8 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and
effect, regardless of (i) any investigation made by or on behalf of the
Purchaser or any person controlling the Purchaser, the Company, its
directors or officers, or any person controlling the Company, (ii)
acceptance of any Shares and payment therefor hereunder, and (iii) any
termination of this Agreement. A successor to the Purchaser or any
person controlling the Purchaser, or to the Company, its directors or
officers, or any person controlling the Company, shall be entitled to
the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 8.
9. Conditions of Purchaser's Obligations. The obligations
of the Purchaser to purchase the Shares under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) 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; to the
knowledge of the Company and the Operating Partnership, such
representations and warranties were true and correct, in all Material
respects, as of the date of this Agreement and on the Closing Date.
(b) The Offering Memorandum (and any amendments or
supplements thereto) shall have been distributed to the Purchaser on or
prior to the date of this Agreement or at such other date and time as
to which the Purchaser may agree; and no stop order pursuant to
applicable law suspending the sale of the Shares in any jurisdiction
shall have been issued and no proceeding for that purpose shall have
been commenced or shall be pending or threatened.
(c) Since the dates as of which information is given in the
Offering Memorandum, there shall not have been any material adverse
change in the capital stock, partners' equity or long-term debt of the
Company, the Operating Partnership or any of the Subsidiaries on a
consolidated basis, except as described or contemplated in the Offering
Memorandum, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, properties, financial
position, stockholders' equity, partners' equity or results of
operations of the Company, the Operating Partnership and the
Subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which in your
judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares on the terms and in the
manner contemplated in the Offering Memorandum; and other than as set
forth in the Offering Memorandum, no proceedings shall be pending or,
to the knowledge of the Company, 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;
(d) 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
of-
18
ficers 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 (c) of this Section;
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Purchaser), dated the Closing
Date, of Cahill Gordon & Reindel, counsel for the Company and the
Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as
a foreign corporation to transact business and is in good
standing in each jurisdiction identified with an asterisk in
Schedule I hereto. Each of FIFC and FISC is duly qualified or
registered as a foreign corporation to transact business and
is in good standing in each jurisdiction identified with an
asterisk in Schedule I hereto.
(ii) The Operating Partnership and each of the
Financing Partnership and Securities, L.P. has been duly
formed and is validly existing as a limited partnership in
good standing under the laws of its state of organization. The
Operating Partnership and each of the Financing Partnership
and Securities, L.P. has all requisite partnership power and
authority to own, lease and operate its properties and other
assets, to conduct the business in which it is engaged and
proposes to engage, in each case, as described in the Offering
Memorandum, and the Operating Partnership has the partnership
power to enter into and perform its obligations under this
Agreement. The Operating Partnership and each of the Financing
Partnership and Securities, L.P. is duly qualified or
registered as a foreign partnership and is in good standing in
each jurisdiction identified with an asterisk in Schedule I
hereto.
(iii) To the knowledge of such counsel (assuming due
authorization, execution and delivery of each of the
partnership agreements of the Operating Partnership, the
Financing Partnership and Securities, L.P., by each of the
parties thereto), all of the outstanding partnership interests
of the Operating Partnership, the Financing Partnership and
Securities, L.P. have been duly authorized, validly issued and
fully paid and, except for Units not owned by the Company, are
owned directly or indirectly by the Company or the Operating
Partnership.
(iv) To the knowledge of such counsel, none of the
Company, the Operating Partnership, the Financing Partnership,
Securities, L.P., FIFC or FISC is in violation of or default
under its charter, by-laws, certificate of limited partnership
or partnership agreement, as the case may be, and none of such
entities is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
document (as in effect on the date of such opinion) listed as
an exhibit to the Company's Annual Report on Form 10-K, to
which such entity is a party or by which such entity may be
bound, or to which any of the property or assets of such
entity or any Property is subject to or bound by (it being
understood that (i) such counsel need express no opinion with
respect to matters relating to any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
19
management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document), except in each case for violations or defaults
which in the aggregate are not reasonably expected to have a
Material Adverse Effect.
(v) Each of this Agreement and the Registration
Rights Agreement was duly and validly authorized and executed
by each of the Company and the Operating Partnership.
(vi) The execution and delivery of this Agreement
and the Registration Rights Agreement, the issuance and sale
of the Shares and the performance by the Company and the
Operating Partnership of their respective obligations under
this Agreement and the Registration Rights 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
state securities, Blue Sky or real estate syndication laws in
connection with the purchase of the Shares by the Purchaser)
and did not and do not conflict with or constitute a breach or
violation of or default under: (1) any document (as in effect
on the date of such opinion) listed as an exhibit to the
Company's Annual Report on Form 10-K, as amended, to which any
such entity is a party or by which it or any of them or any of
their respective properties or other assets may be bound or
subject and of which such counsel is aware (it being
understood that (i) such counsel need express no opinion with
respect to matters relating to any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement
relating to the acquisition, transfer, operation, maintenance,
management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document); (2) the certificate of limited partnership or
partnership agreement, as the case may be, of the Operating
Partnership, the Financing Partnership, and Securities, L.P.
or the articles of incorporation or bylaws, as the case may
be, of the Company, FIFC or FISC; (3) any applicable law, rule
or administrative regulation, except in each case for
conflicts, breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(vii) The information in Exhibit A to the Offering
Memorandum under "Description of Common Stock," "Certain
Federal Income Tax Considerations," "Risk Factors,"
"Restrictions on Transfers of Capital Stock" and "Federal
Income Tax Considerations," 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.
(viii) The partnership agreement of each of the
Operating Partnership, Securities, L.P. and the Financing
Partnership has been duly authorized, validly executed and
delivered by each of the Company and the Subsidiaries, to the
extent they are
20
parties thereto, and assuming due authorization, execution and
delivery by the other parties to each such partnership
agreement, is valid, legally binding and enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(ix) None of the Company, the Corporate Subsidiaries
or the Partnership Subsidiaries is required to be registered
as an investment company under the Investment Company Act of
1940, as amended.
(x) Based upon the representations and warranties
of the Purchaser contained herein, it is not necessary in
connection with the offer, sale and delivery of the Securities
to the Purchaser or the Trust in the manner contemplated by
the Purchase Agreement and the Offering Memorandum to register
the Securities under the Securities Act.
In addition, Cahill Gordon & Reindel shall state that they
have 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, the Operating Partnership and the Subsidiaries and
representatives of the Purchaser at which the contents of the Offering
Memorandum and related matters were discussed. On the basis thereof,
but without independent verification by such counsel of, and without
passing upon or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Offering
Memorandum or any amendments or supplements thereto, no facts have come
to the attention of such counsel that lead them to believe that the
Offering Memorandum, including the documents incorporated therein by
reference, at the time the Offering Memorandum was issued, at the time
any such amended or supplemented Offering Memorandum was issued or at
the Closing Date, 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 (it
being understood that such counsel need express no opinion with respect
to the financial statements, schedules and other financial and
statistical data included in the Offering Memorandum) and may
specifically note that financial statements have not been filed with
respect to the Company's Current Report on Form 8-K filed with the
Commission on April 20, 1998.
In giving its opinion, such counsel shall expressly limit
their opinion to matters of Federal and New York law and the Revised
Uniform Limited Partnership Act and the General Corporation Law of the
State of Delaware and may rely without independent verification (A) 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 Corporate Subsidiaries and the Partnership
Subsidiaries, (B) as to matters of Maryland law, on the opinion of
McGuire, Woods, Battle & Boothe, L.L.P., Baltimore, Maryland, which
opinion shall be in form and substance reasonably satisfactory to
counsel for the Purchaser, (C) as to matters of Illinois law, on the
opinion of Barack Ferrazzano Kirschbaum Perlman & Nagelberg, Chicago,
Illinois, which opinion shall be in form and substance reasonably
satisfactory to counsel for the
21
Purchaser, and (D) as to the good standing and qualification of the
Company, the Corporate Subsidiaries and the Partnership Subsidiaries to
do business in any state or jurisdiction, upon certificates of
appropriate government officials or opinions of counsel in such
jurisdictions. Counsel need express no opinion (i) as to the
enforceability of forum selection clauses in the federal courts or (ii)
with respect to the requirements of, or compliance with, any state
securities, Blue Sky or real estate syndication laws.
(f) You shall have received on the Closing Date an opinion
or opinions (satisfactory to you and counsel for the Purchaser), dated
the Closing Date, of McGuire, Woods, Battle & Boothe, L.L.P., special
Maryland counsel for the Company, to the effect that:
(i) Each of the Company and the Corporate
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its respective jurisdiction of incorporation.
(ii) Each of the Company and the Corporate
Subsidiaries has corporate power and authority to own, lease
and operate its properties and other assets and to conduct the
business in which it is engaged or proposes to engage, in each
case, as described in the Offering Memorandum, and the Company
has the corporate power and authority to enter into and
perform its obligations under this Agreement and the
Registration Rights Agreement.
(iii) The Company's authorized capitalization
consists of 10,000,000 shares of preferred stock, par value
$.01 per share, 100,000,000 shares of common stock, par value
$.01 per share and 65,000,000 shares of excess stock, par
value $.01 per share. All of the issued and outstanding shares
of capital stock of the Company have been duly authorized and
are validly issued, fully paid and non-assessable. All the
issued and outstanding shares of capital stock of the
Corporate Subsidiaries have been duly authorized and are
validly issued, fully paid and non-assessable and are owned by
the Company.
(iv) Each of the Shares has been duly authorized for
issuance and sale to the Purchaser pursuant to this Agreement
and, when validly issued and delivered pursuant to this
Agreement against payment of the Purchase Price, will be duly
authorized, validly issued, fully paid and non-assessable. To
the extent Maryland law provides the basis for determination,
the Purchaser is receiving good, valid and marketable title to
the Shares, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities
if the Purchaser acquires such Shares in good faith and
without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities. The terms of
the Shares conform in all material respects to all statements
and descriptions related thereto contained in the Offering
Memorandum. The Shares are in due and proper form and comply
in all material respects with all applicable legal
requirements and with the requirements of the NYSE. The
issuance of the Shares is not subject to any preemptive or
other similar rights arising un-
22
der Maryland General Corporation Law, the Company's charter or
by-laws, as amended to date, or any agreement of which such
counsel is aware.
(v) Each of this Agreement and the Registration
Rights Agreement was duly and validly authorized and executed
by the Company.
(vi) The execution and delivery of this Agreement
and the Registration Rights Agreement and the performance of
the obligations and the consummation of the transactions 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 Act or other securities
laws) and did not and do not conflict with or constitute a
breach or violation of or default under: (1) the charter or
by-laws, as the case may be, of the Company; (2) 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.
(vii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any Maryland
court, governmental authority, agency or other entity is
required in connection with the due authorization, execution
or delivery of either of this Agreement or the Registration
Rights Agreement by the Company or the offering, issuance or
sale to the Purchaser or the deposit by the Purchaser of the
Shares hereunder, except such as may be required under
Maryland securities, blue sky or real estate syndication laws.
(viii) The information in Exhibit A to the Offering
Memorandum 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" to the extent that it constitutes statements of
law, descriptions of statutes, rules or regulations, summaries
of documents or legal conclusions, has been reviewed by such
counsel and, as to Maryland law, is correct in all material
respects and presents fairly the information required to be
disclosed therein.
(ix) The Company and each of the Corporate
Subsidiaries was authorized to enter into the partnership
agreement of each Partnership Subsidiary for which the Company
or such Corporate Subsidiary, as the case may be, is the
general partner.
(g) You shall have received on the Closing Date, an opinion
or opinions (satisfactory to you and counsel for the Purchaser), dated
the Closing Date, of Barack Ferrazzano Kirschbaum, Perlman & Nagelberg,
special Illinois counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the
Company, FRA, the Operating Partnership, FIMC, the Mortgage
Partnership, FIH, FII, FIHC and FIIC is in violation of, or
default in connection with the performance or observance of
any obli-
23
gation, agreement, covenant or condition contained in any or
all of (A) the consummation of (1) a certain revolving credit
facility made available to the Operating Partnership by The
First National Bank of Chicago and Union Bank of Switzerland,
New York Branch ("UBS"), on behalf of themselves and as agents
for various co-lenders; and (2) a certain mortgage loan made
available to the Mortgage Partnership by Nomura Asset Capital
Corporation; (B) the assumption by the Operating Partnership
of a certain mortgage loan from PFL Life Insurance Company
made available to Fourth Brookville Associates Limited
Partnership; (C) the assumption by the Operating Partnership
of a certain loan from Monumental Life Insurance Company made
available to Lincoln Center Associates Limited Partnership;
(D) the assumption by the Operating Partnership of a certain
loan from Sun Life Assurance Company of Canada made available
to Sealy James Park, L.L.C.; (E) the assumption by the
Operating Partnership of a certain mortgage loan from American
National Insurance Company made available to American National
Bank and Trust Company of Chicago, as Trustee under Trust No.
113913-07; (F) the assumption by the Operating Partnership of
a certain mortgage loan from State Street Bank and Trust
Company, as Trustee for Holders of Commercial Mortgage
Pass-Through Certificates, acting by and through Lutheran
Brotherhood, its duly authorized Attorney-in-Fact, made
available to Walglen Investments Limited; (G) the origination
of a certain mortgage loan made available to the Operating
Partnership and Indianapolis, L.P. by Connecticut General Life
Insurance Company; and (H) the acquisition of property by the
Operating Partnership subject to a certain mortgagee loan from
Smithkline Beecham Clinical Laboratories, Inc. made available
to 290 Industrial Co., LLC (all such indebtedness referenced
in (A) through (H), collectively, the "Credit Documents") and
(b) various pending agreements of purchase and sale into which
FR Acquisitions, Inc. has entered into for the purchase of
certain real properties (collectively, the "Pending
Contracts"), except in each case for defaults that, in the
aggregate, are not reasonably expected to have a Material
Adverse Effect.
(ii) The execution and delivery of this Agreement
and the Registration Rights Agreement and the performance of
the obligations and the consummation of the transaction 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 federal government
(or agency thereof) of the United States; or (C) any order or
administrative or court decree issued to or against or
concerning the Company, the Operating Partnership, FIMC, the
Mortgage Partnership, FIH, FII, FIHC, or FIIC, of which in the
cases of clauses (B) and (C) above, such counsel is aware,
except in each case for conflicts, breaches, violations or
defaults that in the aggregate would not have a Material
Adverse Effect.
(iii) To the knowledge of such counsel, there are no
legal or governmental proceedings pending or threatened that
do, or are likely to, have a Material Adverse Effect.
24
(iv) The information in the Company's 1997 Annual
Report on Form 10-K under Item 2 "The Properties--Mortgage
Loans" (except for the 1994 Mortgage Loan) to the extent that
it constitutes statements of law, descriptions of statutes,
summaries of principal financing terms of Credit Documents or
legal conclusions, has been reviewed by such counsel and is
correct in all material respects and presents fairly the
information disclosed therein.
(h) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Rogers & Wells LLP, counsel for the
Purchaser, as to the matters referred to in clause (i) (with respect to
the Company only) and (iv) (with respect to the first and last
sentences only) of Section 9(f) and clause (v) (with respect to the
Company only) of Section 9(e) and in addition, Rogers & Wells LLP shall
make statements similar to those contained in the first paragraph
following clause (x) of Section 9(e) hereto with similar express
limitations and shall be entitled to rely on those persons described in
the second paragraph following clause (x) Section 9(e) hereto with
respect to the matters described therein.
(i) Since the date hereof, there shall not have occurred a
downgrading in the rating assigned to the Shares 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 Shares or any of the
Company's securities or the Operating Partnership's other securities.
(j) On the date hereof or such other date as the Purchaser
may agree to, Coopers & Lybrand L.L.P. shall have furnished to the
Purchaser a letter, dated the date of its delivery, addressed to the
Purchaser and in form and substance satisfactory to the Purchaser (and
to its counsel), confirming that they are independent public
accountants with respect to the Company and its Subsidiaries as defined
in the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Offering
Memorandum and containing statements and information of the type
ordinarily included in accountants' "comfort letters" as set forth in
the AICPA's Statement on Auditing Standards 72. At the Closing Date,
Coopers & Lybrand L.L.P. shall have furnished to the Purchaser a
letter, dated the date of its delivery, which shall confirm, on the
basis of a review in accordance with the procedures set forth in the
letter from it, that nothing has come to its attention during the
period from the date of the letter referred to in the prior sentence to
a date (specified in the letter) not more than five days prior to the
Closing Date, which would require any change in its letter dated the
date hereof if it were required to be dated and delivered at the
Closing Date.
(k) The Company and its Subsidiaries shall not have failed,
at or prior to the Closing Date, to perform or comply with any of the
agreements pursuant to Section 5 herein contained and required to be
performed or complied with by the Company at or prior to the Closing
Date.
(l) At the Closing Date, counsel for the Purchaser shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Shares, as herein contemplated and related
25
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 Company
in connection with the issuance and sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to
the Purchaser and counsel for the Purchaser.
(m) Each of the Company and the Operating Partnership shall
have authorized, executed and delivered to Purchaser the Registration
Rights Agreement.
(n) At the Closing Date, the Shares shall have been
approved for listing on the NYSE upon official notice of issuance.
The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects satisfactory to you and to Rogers & Wells LLP, counsel
for the Purchaser.
10. Effective Date of Agreement; Termination. This
Agreement shall become effective upon the execution of this Agreement.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Offering Memorandum, there has been a Material Adverse Effect, (ii) any outbreak
or escalation of hostilities or other national or international calamity or
crisis or change in economic conditions or in the financial markets of the
United States or elsewhere that, in the judgment of Purchaser, is material and
adverse and would, in the judgment of Purchaser, make it impracticable or
inadvisable to (x) commence or continue the offering of the units of the Trust
to the public, or (y) enforce contracts for the sale of the units of the Trust,
(iii) the suspension or material limitation of trading in securities on the NYSE
or the American Stock Exchange or material limitation on prices for securities
on either of such exchanges, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion would result in a
Material Adverse Effect, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
11. Miscellaneous. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (a) if to the Company, to First
Industrial Realty Trust, Inc., 311 South Wacker Drive, Suite 4000, Chicago,
Illinois 60606, Attention: Michael T. Tomasz, with a copy to Cahill Gordon &
Reindel, 80 Pine Street, New York, New York 10005, Attention of Gerald S.
Tanenbaum, Esq. and (b) if to you, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, North Tower, World Financial Center, New York, New York 10281,
Attention: Cara Londin, with a copy to Rogers & Wells LLP, 200 Park Avenue, New
York, New York 10166, Attention of Robert E. King, Jr., or in any case to such
other address as the person to be notified may have requested in writing.
The provisions of Sections 5, 6, 7 and 8 shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Shares, regardless of (i) any investigation, or
26
statement as to the results thereof, made by or on behalf of the Purchaser or by
or on behalf of the Company, the officers or directors of the Company or any
controlling person of the Company and (ii) acceptance of the Shares and payment
for them hereunder.
In the event of termination of this Agreement, the provisions
of Sections 5(i) and 8 shall remain operative and in full force and effect.
If this Agreement shall be terminated by the Purchaser because
of any failure or refusal on the part of the Company or the Operating
Partnership to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company and the Operating Partnership agree to reimburse the
Purchaser for all out-of-pocket expenses (including the fees and disbursements
of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Operating Partnership and the Purchaser, any controlling persons referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Shares from the Purchaser merely because
of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed in New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
27
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Operating Partnership, and the Purchaser as of
the date first written above.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
and Secretary
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
as its sole general partner
By: /s/ Michael J. Havala
------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
and Secretary
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John C. Brady
----------------------
Name:
Title:
SCHEDULE I
----------
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
-----------------------------------------------------------
ENTITY: JURISDICTION
- ------ ------------
First Industrial, L.P. Georgia*
Illinois*
Indiana*
Iowa
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois*
Michigan*
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
* Denotes jurisdictions on which counsel is opining.
SCHEDULE I-1
ENTITY: JURISDICTION
- ------ ------------
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Georgia
Illinois
Iowa
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
* Denotes jurisdictions on which counsel is opining.
SCHEDULE I-2
ENTITY: JURISDICTION
- ------ ------------
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.
SCHEDULE I-3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of April
29, 1998 by and between First Industrial Realty Trust, Inc., a Maryland
corporation (the "Company"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Initial Purchaser") pursuant to the Purchase Agreement dated
as of April 23, 1998 (the "Purchase Agreement") between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration and other
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
Initial Purchaser and (ii) for the benefit of the beneficial owners (including
the Initial Purchaser) from time to time of the Shares (as defined herein) (each
of the foregoing, a "Holder" and together the "Holders"), it being understood
that for purposes of this Agreement the term "beneficial owner" shall not mean
any person holding an interest in a unit investment trust solely by reason of
such holding, as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
Affiliate means with respect to any specified person, an "affiliate" of
such person as defined in Rule 144(a)(1).
Amendment Effectiveness Deadline Date has the meaning set forth in
Section 3(d) hereof.
Business Day means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Common Stock means the shares of common stock, $.01 par value per
share, of the Company.
Deferral Notice has the meaning set forth in Section 4(i) hereof.
Deferral Period means the period during which the availability of any
Registration Statement and Prospectus is suspended pursuant to Section 4(i)
hereof.
Effectiveness Deadline Date has the meaning set forth in Section 3(a)
hereof.
Effectiveness Period means the period commencing with the date hereof
and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Filing Deadline Date has the meaning set forth in Section 3(a) hereof.
Holder has the meaning set forth in the second paragraph of this
Agreement.
Initial Purchaser has the meaning set forth in the first paragraph of
this Agreement.
Initial Shelf Registration Statement has the meaning set forth in
Section 3(a) hereof.
Material Event has the meaning set forth in Section 4(i) hereof.
Notice and Questionnaire means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Appendix A hereto.
Notice Holder means on any date any Holder that has delivered a duly
completed Notice and Questionnaire to the Company on or prior to such date.
Prospectus means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference in such
Prospectus.
Purchase Agreement has the meaning set forth in the first paragraph of
this Agreement.
Registrable Securities means the Shares and any securities into or for
which the Shares have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split or similar event until, in the
case of any such security (A) the earliest of (i) its sale under an effective
Registration Statement, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) were it not held by an affiliate of the
Company or (iii) its sale pursuant to Rule 144 and (B) as a result of the event
or circumstance described in the foregoing clauses (A)(i) through (A)(iii), the
legends with respect to transfer restrictions required pursuant to the Purchase
Agreement are removed or removable (x) (i) due to compliance with the terms of
Rule 144 or (ii) pursuant to an effective Registration Statement and (y) the
policies and procedures of the Transfer Agent and Registrar.
Registration Statement means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference in such registration statement.
Rule 144 means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A means Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Sale Notice has the meaning set forth in Section 2(b) hereof.
SEC means the Securities and Exchange Commission.
2
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shares means the shares of Common Stock to be purchased by the Initial
Purchaser pursuant to the Purchase Agreement.
Shelf Registration Statement means the Initial Shelf Registration
Statement or a Subsequent Shelf Registration Statement.
Subsequent Shelf Registration Statement has the meaning set forth in
Section 3(b) hereof.
Transfer Agent and Registrar means First Chicago Trust Company of New
York (or any successor entity), as the transfer agent and registrar for the
Common Stock.
SECTION 2. Sales of Registrable Securities. (a) At any time prior to
the expiration of the Effectiveness Period, if a Registration Statement is not
then in effect (other than because of a Deferral Period), upon notice (a "Sale
Notice") from any such Notice Holder of such Notice Holder's intent to sell such
Registrable Securities (which notice shall indicate the number of Registrable
Securities to be sold), the Company shall have the following rights and
obligations with respect to such Sale Notice and the sale and/or purchase of
such Registrable Securities:
(i) (x) If the Sale Notice is delivered to the Company
prior to 5:00 P.M. Eastern time on any Business Day, the Company shall
have until the close of trading on the first succeeding Business Day on
which trading of the Common Stock occurs on the principal exchange or
quotation system on which the Common Stock is traded or quoted to offer
to purchase the Registrable Securities at a price per share in cash
equal to the closing sales price for the Common Stock on the principal
exchange or quotation system for the Common Stock (the "Exchange") on
the date of such Sale Notice (or at such other price mutually agreed
between the Company and the relevant Notice Holder); or
(y) If the Sale Notice is delivered to the Company
after 5:00 P.M. Eastern time on any Business Day (or at any time on any
day which is not a Business Day), the Company shall have until the
commencement of trading on the earlier of (i) the second succeeding
Business Day on which trading of the Common Stock occurs on the
principal exchange or quotation system on which the Common Stock is
traded or quoted or (ii) the second succeeding Business Day to offer to
purchase the Registrable Securities at a price per share in cash equal
to the closing sales price for the Common Stock on the Exchange on the
last day on which trading of the Common Stock occurs thereon prior to
the date of such Sale Notice (or at such other price mutually agreed
between the Company and the relevant Notice Holder).
(ii) If the Company shall have offered to purchase the
relevant Registrable Securities in accordance with Section 2(b)(i)
hereof, the Company shall be obligated to purchase, and the relevant
Notice Holder shall be obligated to sell, such Registrable Securities,
with settlement to occur in accordance with the rules and regulations
of the SEC and the principal exchange or quotation system on which the
Common Stock is traded or quoted, and the Company and the relevant
Notice Holder shall enter into customary documentation appropriate to
such purchase and sale.
3
(iii) If the Company shall have failed to offer to purchase
the relevant Registrable Securities pursuant to Section 2(b)(i) hereof,
the relevant Notice Holder shall be entitled to negotiate and enter
into a contract for the sale of the relevant Registrable Securities
(for cash) with any other party in its commercially reasonable
discretion. In connection with the negotiation and execution of any
sale contract pursuant to this Section 2(b)(iii), if requested, and if
customary for "due diligence" examinations conducted in connection with
the type of sale being completed, the Company agrees to (a) make
reasonably available for inspection by the relevant Notice Holder and
any parties to whom such Notice Holder intends to sell Registrable
Securities and any attorneys and accountants retained by any such
party, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (b)
cause the executive officers, directors and designated employees of the
Company and its subsidiaries to make reasonably available for
inspection all relevant information reasonably requested by such
parties or any such attorneys or accountants in connection with such
sale; provided that any information that is designated by the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such parties or any such
attorney or accountant, unless such disclosure is made in connection
with a court proceeding or is required by law, or such information
becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality.
(iv) The Company agrees that it shall promptly upon demand
pay to any Notice Holder that sells Registrable Securities pursuant to
Section 2(b)(iii) hereof an amount in cash equal to the difference
between (x) the last sales price of the Common Stock on the Exchange
immediately preceding the date and time at which the relevant purchase
and sale agreement is executed multiplied by the number of shares of
Common Stock sold and (y) the aggregate price at which such Registrable
Securities are sold pursuant to Section 2(b)(iii) hereof; provided
that, with respect to any sale, the Company shall not be liable to any
Holder pursuant to this sentence for in excess of 10% of the amount
determined pursuant to clause (x) of this sentence.
SECTION 3. Shelf Registration. (a) The Company shall prepare and file
with the SEC, as soon as practicable but in any event by the date (the "Filing
Deadline Date") 90 days after the date hereof, a registration statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC, registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration Statement"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution elected by the Holders and set forth
in the Initial Shelf Registration Statement. The Company shall use its
commercially reasonable efforts to cause the Initial Shelf Registration
Statement to become effective under the Securities Act as promptly as is
practicable but in any event by the date (the "Effectiveness Deadline Date") 180
days after the date hereof, and to keep the Initial Shelf Registration Statement
continuously effective under the Securities Act until the expiration of the
Effectiveness Period. At the time the Initial Shelf Registration Statement
becomes effective, each Holder that became a Notice Holder on or prior to the
date fifteen Business Days prior to such time of effectiveness shall be named as
a selling securityholder in the Initial Shelf Registration Statement and the
related
4
Prospectus in such a manner as to permit such Holder to deliver such Prospectus
to purchasers of Registrable Securities in accordance with applicable law;
provided, however, that the Company shall not be obligated to include such
Notice Holder as a selling securityholder if the Company shall have reasonably
requested additional information from such Notice Holder and the Notice Holder
shall have failed to provide such information at least ten days prior to such
time of effectiveness.
(b) a Shelf Registration Statement ceases to be effective for any
reason at any time during the Effectiveness Period, the Company shall use its
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
commercially reasonable efforts to cause the Subsequent Shelf Registration
Statement to become effective as promptly as is practicable after such filing
and to keep the Subsequent Registration Statement continuously effective until
the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
Statement if reasonably requested by the holders of a majority of shares
constituting Registrable Securities unless it is determined, in writing, by
Cahill Gordon & Reindel not to be required by the Securities Act.
(d) Each Holder wishing to sell Registrable Securities pursuant to
a Shelf Registration Statement and related Prospectus agrees to deliver a duly
completed Notice and Questionnaire to the Company at least ten Business days
prior to the initial intended distribution of Registrable Securities by such
Holder under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement becomes effective, the Company shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within ten Business Days after receipt of a
completed Notice and Questionnaire:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the
Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related
Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance
with applicable law; provided, however, that the Company shall not be
obligated to include such Notice Holder as a selling securityholder if
the Company shall have reasonably requested additional information from
such Notice Holder and the Notice Holder shall have failed to provide
such information at least ten days prior to such time of effectiveness;
and, if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use its best efforts to cause such
post-effective amendment to become effective under the Securities Act
as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline Date") 45 days after the date such
post-effective amendment is required by this clause to be filed;
5
(ii) provide such Holder a copy of any documents filed
pursuant to Section 3(d)(i) hereof; and
(iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 3(d)(i) hereof; provided that if
such Notice and Questionnaire is delivered during a Deferral Period,
the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii)
and (iii) above, to the extent necessary, upon expiration of the
Deferral Period in accordance with Section 4(i). The Company shall be
under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related
Prospectus.
SECTION 4. Registration Procedures. In connection with the registration
obligations of the Company under Section 3 hereof, the Company shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial Purchaser
three copies of all such documents proposed to be filed.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective from the Effectiveness
Deadline Date to the expiration of the Effectiveness Period; cause the related
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and use its best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement until the
expiration of the Effectiveness Period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable, give notice to the Notice Holders
and the Initial Purchaser (i) when any Prospectus, prospectus supplement,
Registration Statement or post-effective amendment to a Registration Statement
has been filed with the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request, following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of any Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of a Material Event and (vi) of the determination
by the Company that a post-effective amendment to a Registration Statement would
be appropriate, which notice may, at the discretion of the Company (or as
required pursuant to Section 4(i)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 4(i) shall apply.
6
(d) Use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration Statement
or the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any jurisdiction
in which they have been qualified for sale, in either case as promptly as
reasonably practicable.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial Purchaser or such Notice Holder shall, on the basis of an opinion of
nationally-recognized counsel experienced in such matters and selected by the
Company, determine to be required to be included therein by applicable law and
make any required filings of such prospectus supplement or such post-effective
amendment; provided that the Company shall not be required to take any actions
under this Section 4(e) that are not, in the reasonable opinion of counsel for
the Company, in compliance with applicable law or during a Deferral Period.
(f) As promptly as practicable furnish to each Notice Holder and
the Initial Purchaser, without charge, at least one conformed copy of any
Registration Statement and any amendment thereto, including exhibits, and all
documents incorporated or deemed to be incorporated therein by reference.
(g) Deliver to each Notice Holder in connection with any sale of
Registrable Securities pursuant to a Registration Statement, without charge, as
many copies of the Prospectus relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
Notice Holder may reasonably request; and the Company hereby consents to the use
of the Prospectus and each amendment or supplement thereto by each Notice Holder
in connection with any offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto in the manner set
forth therein.
(h) Prior to any public offering of the Registrable Securities,
register or qualify or cooperate with the Notice Holders in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any Notice Holder reasonably requests in writing (which request shall be
included in the Notice and Questionnaire); keep each such registration or
qualification (or exemption therefrom) effective during the period that a Shelf
Registration Statement is required to be effective and do any and all other acts
or things necessary or advisable to enable the disposition in such jurisdictions
of such Registrable Securities in the manner set forth in the applicable
Registration Statement and the related Prospectus.
(i) Upon (A) the issuance by the SEC of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development or public filing
7
with the SEC that, in the discretion of the Company, makes it appropriate to
suspend the availability of the Shelf Registration Statement and the related
Prospectus:
(i) in the case of clause (B) above, subject to the next
sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Registration
Statement and Prospectus so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the
next sentence, use their commercially reasonable efforts to cause it to
become effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the
availability of the Shelf Registration Statement is suspended (a
"Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder shall not sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's receipt of copies of
the supplemented or amended Prospectus provided for in clause (i)
above, or until it (x) is advised in writing by nationally-recognized
counsel for the Company that the Prospectus may be used, and (y) has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its commercially reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate.
Notwithstanding the foregoing, the Company may not (i) impose in excess of two
Deferral Periods (each not to exceed 30 days) during the initial 12 month period
or (ii) at any time, impose a Deferral Period if a Deferral Period has been in
effect within the preceding seven days; provided, however, the Company may
impose a Deferral Period commencing on the day it initiates a "road show" in
connection with the sale of Common Stock and ending on the date of the
underwriting, pricing or similar agreement.
(j) Enter into such customary agreements and take all such other
customary actions in connection therewith (including those requested by the
Holders of a majority of the Shares constituting Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an underwritten offering and in
connection therewith:
(i) provide customary indemnities to underwriters in
connection with underwritten offerings and to the extent possible, make
such representations and warranties to the
8
Holders and any underwriters of such Registrable Securities with
respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference therein, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders of a majority of the
Shares constituting Registrable Securities being sold, such
underwriters and their respective counsel) addressed to each selling
Holder and underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings;
(iii) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and,
if necessary, any other certified public accountant of any subsidiary
of the Company, or of any business acquired or to be acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings; and
(iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority of the Shares
constituting Registrable Securities being sold, the underwriters and
their respective counsel to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause
(i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company.
The above shall be done at each closing under such underwriting or similar
agreement as and to the extent required thereunder.
(k) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make reasonably available for
inspection by the Notice Holders of such Registrable Securities and any
broker-dealers, attorneys and accountants retained by such Notice Holders, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries that are not otherwise publicly
available, and cause the executive officers, directors and designated employees
of the Company and its subsidiaries to make reasonably available for inspection
all relevant information reasonably requested by such Notice Holders or any such
broker-dealers, attorneys or accountants that is not otherwise publicly
available in connection with such disposition, in each case as is customary for
similar "due diligence" examinations; provided that any information that is
designated by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Notice Holders
or any such broker-dealer, attorney or accountant, unless such disclosure is
made in connection with a court proceeding or is required by law, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality.
9
(l) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(m) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to a Registration Statement, which certificates shall not bear
any restrictive legends, and cause such Registrable Securities to be in such
denominations and registered in such names as such Notice Holder may request.
(n) Provide a CUSIP number for all Registrable Securities not
later than the effective date of the Initial Shelf Registration Statement and
provide the Transfer Agent and Registrar with printed certificates for the
Registrable Securities that are in a form eligible for deposit with the
Depository Trust Company.
(o) Provide such information as is required for any filings
required to be made with NASD Regulation, Inc.
SECTION 5. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities shall be
entitled to sell any of such Registrable Securities pursuant to a Registration
Statement or to receive a Prospectus relating thereto, or to receive the
benefits of Section 2 or 3 hereof, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 3(d) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder shall promptly furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder pursuant to a Registration Statement shall constitute a
representation and warranty by such Holder that the information relating to such
Holder and its plan of distribution is as set forth in the Prospectus delivered
by such Holder in connection with such disposition, that such Prospectus does
not as of the time of such sale contain any untrue statement of a material fact
relating to or provided by such Holder or relating to its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or relating to its plan of
distribution necessary to make the statements in such Prospectus, in the light
of the circumstances under which they were made, not misleading.
SECTION 6. Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations
under Sections 2, 3 and 4 hereof whether or not any Registration Statement
becomes effective. Such fees and expenses shall include, without limitation, (i)
all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with NASD Regulation,
Inc. and (y) to comply with federal and state securities or Blue Sky laws, (ii)
reasonable printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The De-
10
pository Trust Company), (iii) reasonable duplication expenses relating to
copies of any Registration Statement or Prospectus delivered to any Holders
hereunder, (iv) fees and disbursements of counsel for the Company in connection
with any Shelf Registration Statement and any opinion reasonably requested of
such counsel by the Transfer Agent and Registrar, (v) reasonable fees and
disbursements of the Transfer Agent and Registrar and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In addition,
the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal
or accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. Notwithstanding the provisions of this Section 6, each seller of
Registrable Securities shall pay all registration expenses to the extent the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of such seller of Registrable Securities. In addition, the Company shall bear
the fees and expenses described in Section 2(b)(iv) hereof.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
and each person, if any, who controls any Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or in any amendment thereto), or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of material fact
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to any Holder furnished in writing to the Company by or on
behalf of any Holder through you expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against the
Purchaser or any person controlling any Holder in respect of which indemnity may
be sought against the Company, any Holder or such controlling person shall
promptly notify the Company and the Company shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Each
Holder or any such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Holder or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such Holder or such
controlling person and the Company and such Holder or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and the Company by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been
11
proposed) due to actual or potential differing interests between them (in which
case the Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Holder or such controlling person). It is
understood, however, that the Company shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for any Holder and controlling persons not having actual or
potential differing interests with you or among themselves, which firm shall be
designated in writing by such Holder, and that all such fees and expenses shall
be reimbursed as they are incurred. The Company shall not be liable for any
settlement of any such action, suit or proceeding effected without its written
consent, but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the Company
agrees to indemnify and hold harmless such Holder, to the extent provided in the
preceding paragraph, and any such controlling person from and against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
(c) Indemnification of Company, Directors, Officers and Other
Holders. Each Holder severally agrees to indemnify and hold harmless the Company
and any person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Holder, but only with respect to
information relating to the Holder furnished in writing by or on behalf of such
Holder through you expressly for use in the Registration Statement or any
preliminary prospectus or Prospectus (or any amendment or supplement to any
thereof). If any action, suit or proceeding shall be brought against the
Company, any of its directors, any such officer, or any such controlling person
based on the Registration Statement or any preliminary prospectus or Prospectus
(or any amendment or supplement to any thereof), and in respect of which
indemnity may be sought against the Holder pursuant to this paragraph (c), the
Purchaser shall have the rights and duties given to the Company by paragraph (a)
above (except that if the Company shall have assumed the defense thereof, the
Holder shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the Holder's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Holder by paragraph (a) above. The foregoing indemnity agreement
shall be in addition to any liability which the Holder may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holder on the other hand from the offering of
the Shares, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Holder on the other in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Holder on
the other shall be deemed to be in the same proportion as the total net proceeds
from the initial placement (before deducting expenses) of the Registrable
Securities to which such losses, claims, damages or liabilities relate bears to
the value to the Holder of re-
12
ceiving Registrable Securities that are registered under the Securities Act. The
relative fault of the Company on the one hand and the Holder on the other hand
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 on the
one hand or by the Holder on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and each Holder agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by a
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, the Holder shall
not be required to contribute any amount in excess of the amount by which the
total price of the Shares sold by it and distributed to the public exceeds the
amount of any damages which such Holder 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.
(f) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 7(a)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it considers
such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
(h) Any losses, claims, damages, liabilities or expenses for which
an indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and
13
effect, regardless of (i) any investigation made by or on behalf of the Holder
or any person controlling the Holder, the Company, its directors or officers, or
any person controlling the Company, (ii) acceptance of any Shares and payment
therefor hereunder, and (iii) any termination of this Agreement. A successor to
the Holder or any person controlling the Holder, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
SECTION 8. Information Requirements. The Company shall file the reports
required to be filed by it under the Exchange Act, and, if at any time before
the end of the Effectiveness Period the Company is not subject to the reporting
requirements of the Exchange Act, it will cooperate with any Holder of
Registrable Securities and take such further reasonable action as any Holder of
Registrable Securities may reasonably request (including, without limitation,
making such reasonable representations as any such Holder may reasonably
request), all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 and Rule 144A. Upon the
request of any Holder of Registrable Securities, the Company shall deliver to
such Holder a written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the Company's most
recent report required to be filed and filed pursuant to Section 13 or Section
15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 9
shall be deemed to require the Company to register any of its securities under
the Exchange Act.
SECTION 9. Miscellaneous.
(a) No Conflicting Agreements. The Company has not entered, as of
the date hereof, nor shall it, on or after the date of this Agreement enter,
into any agreement with respect to its securities that conflicts with the rights
granted to the Holders in this Agreement. The Company represents and warrants
that the rights granted to the Holders hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the Shares then constituting Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority of the Shares then constituting
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
14
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in a Notice and
Questionnaire or any amendment thereto;
(y) if to the Company, to:
First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 4000
Attention: General Counsel
Telecopy No.: (312) 922-9851
and
(z) if to the Initial Purchaser, to:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Attention: Legal Department
Telecopy No.: (212) 449-3207
or to such other address as such person may have furnished to the other persons
identified in this Section 10(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders of Registrable Securities if such subsequent
Holders are deemed to be such affiliates solely by reason of their holdings of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
15
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 5 or 7 hereof, each of which shall
remain in effect in accordance with its terms.
[Signatures begin on following page.]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
--------------------------------
Name: Gary H. Heigl
Title: Senior Vice President -
Capital Markets
FIRST INDUSTRIAL, L.P.
By: Gary H. Heigl
--------------------------------
Name: Gary H. Heigl
Title: Senior Vice President -
Capital Markets
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
(for its benefit and for the benefit of the Holders)
By: /s/ John C. Brady
----------------------
Name:
Title:
APPENDIX A
FIRST INDUSTRIAL REALTY TRUST, INC.
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned beneficial holder of shares of Common Stock, $.01 par
value per share (the "Registrable Securities"), of First Industrial Realty
Trust, Inc. (the "Company" or "Registrant") understands that the Registrant has
filed or intends to file with the Securities and Exchange Commission a
registration statement on Form S-3 (as more fully defined in the Registration
Rights Agreement referred to below, the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Registrable Securities, in accordance with the
terms of the Registration Rights Agreement, dated as of April 29, 1998 (the
"Registration Rights Agreement"), between the Company and the Initial Purchaser
named therein. A copy of the Registration Rights Agreement is available from the
Company upon request at the address set forth below. Each capitalized term not
otherwise defined herein shall have the meaning ascribed thereto in the
Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any Registrable Securities pursuant to the Shelf Registration
Statement, a beneficial owner of Registrable Securities generally will be
required to be named as a selling securityholder in the related prospectus,
deliver a prospectus to purchasers of Registrable Securities and be bound by
those provisions of the Registration Rights Agreement applicable to such
beneficial owner (including certain indemnification provisions, as described
below). Beneficial owners that do not complete this Notice and Questionnaire and
deliver it to the Company as provided below will not be named as selling
securityholders in the prospectus and therefore will not be permitted to sell
any Registrable Securities pursuant to the Shelf Registration Statement.
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the Shelf Registration Statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Upon receipt of a completed
Notice and Questionnaire from a beneficial owner following the effectiveness of
the Shelf Registration Statement, the Company will, as promptly as practicable
but in any event within seven Business Days of such receipt, file such
amendments to the Shelf Registration Statement or supplements to the related
prospectus as are necessary to permit such holder to deliver such prospectus to
purchasers of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related prospectus.
A-1
NOTICE
The undersigned beneficial owner (the "Selling Securityholder") of
Registrable Securities hereby gives notice to the Company of its intention to
sell or otherwise dispose of Registrable Securities beneficially owned by it and
listed below in Item 3 (unless otherwise specified under Item 3) pursuant to the
Shelf Registration Statement. The undersigned, by signing and returning this
Notice and Questionnaire, understands that it will be bound by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement.
Pursuant to the Registration Rights Agreement, the undersigned has
agreed to indemnify and hold harmless the Company, the Company's directors, the
Company's officers who sign the Shelf Registration Statement, each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), each other Holder of Registrable Securities and each
person, if any, who controls any Holder of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against certain losses arising in connection with statements concerning
the undersigned or its Plan of Distribution made in the Shelf Registration
Statement or related prospectus in reliance upon the information provided in
this Notice and Questionnaire.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
1. (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as (a)
above) through which Registrable Securities listed in (3)
below are held:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) through which Registrable Securities
listed in (3) below are held:
2. Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
3. Beneficial Ownership of Registrable Securities:
A-2
Number of shares beneficially owned:
4. Beneficial Ownership of Other Securities of the Company owned by the
Selling Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any securities of the Company other
than the Registrable Securities listed above in Item (3).
(a) Type and amount of other securities of the Company
beneficially owned by the Selling Securityholder:
(b) CUSIP No(s). of such other securities beneficially owned:
5. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exception here:
6. Plan of Distribution
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Registrable Securities listed above
in Item (3) pursuant to the Shelf Registration Statement only as
follows (if at all): Such Registrable Securities may be sold from time
to time directly by the undersigned or, alternatively, through
underwriters, broker-dealers or agents. If the Registrable Securities
are sold through underwriters or broker-dealers, the Selling
Securityholder will be responsible for underwriting discounts or
commissions or agent's commissions. Such Registrable Securities may be
sold in one or more transactions at fixed prices, at prevailing market
prices at the time of sale, at varying prices determined at the time of
sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on
any national securities exchange or quotation service on which the
Regis-
A-3
trable Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the undersigned may enter into
hedging transactions with broker-dealers, which may in turn engage in
short sales of the Registrable Securities in the course of hedging in
positions they assume. The undersigned may also sell Registrable
Securities short and deliver Registrable Securities to close out short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the
prior agreement of the Company.
The undersigned acknowledges that it understands its obligations to
comply with the provisions of the Exchange Act and the rules thereunder relating
to stock manipulation, particularly Regulation M thereunder (or any successor
rules or regulations), in connection with any offering of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned agrees that
neither it nor any person acting on its behalf will engage in any transaction in
violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under
the Registration Rights Agreement to indemnify and hold harmless certain persons
as set forth herein.
Pursuant to the Registration Rights Agreement, the Company has agreed
under certain circumstances to indemnify the Selling Securityholder against
certain liabilities.
Pursuant to the Registration Rights Agreement, the Selling
Securityholder is obligated to pay (a) all registration expenses to the extent
the Company is prohibited by applicable Blue Sky laws from paying for or on
behalf of such Selling Securityholder and (b) to the extent incurred by such
Selling Stockholder, all (i) legal fees, (ii) brokerage fees and sales
commissions and (iii) out of pocket expenses.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Date:
(Beneficial Owner)
By:
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO
THE COMPANY AT:
FIRST INDUSTRIAL REALTY TRUST, INC.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60601
Attention: General Counsel
Telecopy No.: (312) 922-9851
A-5