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FIRST INDUSTRIAL REALTY TRUST, INC.
(a Maryland corporation)
Common Stock
PURCHASE AGREEMENT
Dated: April 23, 1998
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1,112,644 Shares
of Common Stock
PURCHASE AGREEMENT
------------------
April 23, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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 ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Purchaser"). The Purchaser intends to deposit
the Shares with the trustee of the Equity Investor Fund ▇▇▇▇▇ & 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 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
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. 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
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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.
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(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 ▇▇▇▇ ▇▇▇) will be used in the
United States in connection with the offering of the Shares.
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6. Representations and Warranties of the Purchaser.
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(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.
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(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
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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
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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
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(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.
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(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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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 & ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, 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 & ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
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 ▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ & ▇▇▇▇▇ 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, ▇▇▇▇▇▇ & ▇▇▇▇▇ 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 & ▇▇▇▇▇▇▇ 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 & ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ & ▇▇▇▇▇ 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., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq. and (b) if to you, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
and Secretary
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
as its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
and Secretary
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
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