Up to 10,000,000 Shares FIRST INDUSTRIAL REALTY TRUST, INC. Series I Depositary Shares PURCHASE AGREEMENT
Up
to 10,000,000 Shares
FIRST
INDUSTRIAL REALTY TRUST, INC.
Series
I Depositary Shares
November
8, 2005
Wachovia
Investment Holdings, LLC
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Ladies
and Gentlemen:
First
Industrial Realty Trust, Inc., a Maryland corporation (the “Company”),
proposes to issue and sell to Wachovia Investment Holdings, LLC, a Delaware
limited liability company (the “Initial
Purchaser”),
up to
10,000,000 Series I Depositary Shares, liquidation preference $25.00 per share
(the “Shares”
or the
“Series
I Depositary Shares”).
Subject to the terms and conditions, representations and warranties set forth
in
this Purchase Agreement (this “Agreement”),
Wachovia Investment Holdings, LLC has agreed to act as the Initial Purchaser
in
connection with the potential offering and sale of the Shares (as defined in
Section
1(a)).
As
provided in Section
7
of this
Agreement, if the Company has not issued an irrevocable notice of redemption
of
the Shares by April 10, 2006, the Company shall be obligated to deliver to
the
Initial Purchaser by May 8, 2006, copies of an Offering Memorandum (the
“Offering
Memorandum”)
describing the Company and the terms of an offering of the Shares. The Offering
Memorandum shall be for the use of the Initial Purchaser in connection with
its
solicitation of offers to purchase the Shares, including purchases made pursuant
to Rule 144A (“Rule
144A”)
under
the Securities Act of 1933, as amended (the “Securities
Act,”
which
term, as used in this Agreement, includes the rules and regulations of the
Securities and Exchange Commission (the “Commission”)
promulgated thereunder). As used in this Agreement, the term “Offering
Memorandum” shall mean, with respect to any date or time referred to in this
Agreement, any such Offering Memorandum, as amended or supplemented through
such
date and the Incorporated Documents (as defined in Section
2(B)(f))
in the
then-most-recent form delivered by the Company to the Initial Purchaser in
connection with its solicitation of offers to purchase the Shares. Further,
any
reference to the Offering Memorandum shall be deemed to refer to and include
any
Additional Issuer Information (defined in Section
7(A)(a))
furnished by the Company prior to the completion of the Initial Purchaser’s
placement of the Shares to the Subsequent Purchasers (as defined
below).
As
provided in Section
7(A)
of this
Agreement, the Company might become obligated to file with the Commission not
later than July 6, 2006, and have declared effective not later than August
7,
2006, a registration statement (the “Resale
Shelf Registration Statement”)
registering the resale of the Shares under the Securities Act by the holders,
and the holders of the Shares might become entitled to the benefits of a related
registration rights agreement (the “Registration
Rights Agreement”)
to be
negotiated between the Company and the Initial Purchaser.
All
references in this Agreement to financial statements and schedules and other
information which is “contained,”“included” or “stated” in the Offering
Memorandum (or other references of like import) shall be deemed also to refer
to
and include all such financial statements and schedules and other information
which are 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, as amended (the “Exchange
Act,”
which
term, as used in this Agreement, includes the rules and regulations of the
Commission promulgated thereunder), which is incorporated by reference in the
Offering Memorandum.
The
Shares are being offered and sold to the Initial Purchaser without being
registered with the Commission under the Securities Act, in reliance upon the
Section 4(2) private placement exemption therefrom. The Company understands
that, at any time on or after April 10, 2006, the Initial Purchaser might,
but
is under no obligation to, make an offering of the Shares on the terms and
in
the manner set forth in this Agreement and agrees that from and after such
date
the Initial Purchaser may resell, subject to the conditions set forth in this
Agreement, all or a portion of the Shares to purchasers as described in this
Agreement (the “Subsequent
Purchasers”).
In
that case, the Shares may be offered and sold to the Subsequent Purchasers
without being registered with the Commission under the Securities Act in
reliance upon exemptions therefrom, including sales to “qualified institutional
buyers” under Rule 144A, or in transactions not subject thereto.
The
Company hereby confirms its agreement with the Initial Purchaser as
follows:
Section
1. Purchase,
Sale and Delivery of the Shares.
(a) Purchase
and Sale.
On the
basis of the representations, warranties and agreements contained in this
Agreement, and upon the terms but subject to the conditions set forth in this
Agreement, the Initial Purchaser shall purchase from the Company, and the
Company shall sell to the Initial Purchaser, 6,000,000 Series I Depositary
Shares (the “Initial
Shares”)
each
representing 1/10,000 of a share of Series I Flexible Cumulative Redeemable
Preferred Stock of the Company (the “Series
I Preferred Stock”)
pursuant to a Deposit Agreement in form and substance satisfactory to the
Initial Purchaser (the “Deposit
Agreement”)
on the
Initial Closing Date (as defined in Section
1(c)(i))
of
this Agreement, for the consideration specified in Section
1(b)
and the
Company shall have the option , but not the obligation, and the Initial
Purchaser shall purchase (if such option is exercised) up to an additional
4,000,000 Series I Depositary Shares (the “Optional
Shares”)
each
representing 1/10,000 of a share of Series I Preferred Stock pursuant to the
Deposit Agreement on the Subsequent Closing Date (as defined in Section
1(c)(ii))
of
the Agreement, for the consideration specified in Section
1(b).
The
Company shall provide the Initial Purchaser with written notice of its intent
to
exercise its option to sell the Optional Shares no later than two days prior
to
the Subsequent Closing Date, and such notice shall include the number of Series
I Depositary Shares to be sold as Optional Shares. The Company’s option to sell
the Optional Shares pursuant to this Section 1(a) shall expire on November
18,
2005. On or before the Initial Closing (as defined in Section
1(b)),
the
Company shall file with the State Department of Assessments and Taxation of
Maryland Articles Supplementary in the form attached hereto as Exhibit
A
(except
for any changes proposed by the Company as are approved by the Initial Purchaser
in its sole and absolute discretion) (the “Articles
Supplementary”).
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(b) Payment
of Purchase Price and Delivery of Shares.
The
purchase and sale of the Initial Shares contemplated by this Agreement shall
take place as set forth in Section 1(b)(i),
and, if
the Company exercises its option to sell the Optional Shares, then the purchase
and sale of the Optional Shares contemplated by this Agreement shall take place
as set forth in Section 1(b)(ii).
(i) At
the
closing (the “Initial
Closing”)
on the
Initial Closing Date (as defined below), in addition to the other deliveries
required by this Agreement, (x) the Initial Purchaser shall pay to the Company,
by wire transfer of immediately available funds, $150,000,000.00 (the
“Initial
Purchase Price”),
and
(ii) the Company shall deposit with EquiServe Trust Company, N.A., as depositary
(the “Depositary”),
a
certificate representing 600 shares of Series I Preferred Stock and shall
deliver to the Initial Purchaser Series I Depositary Receipts (the “Initial
Depositary Receipts”)
evidencing 6,000,000 Shares, registered in the name of Wachovia Investment
Holdings, LLC or such other name(s) as the Initial Purchaser shall have
specified no less than two business days prior to the Initial
Closing.
(ii) If
the
Company exercises its option to sell the Optional Shares, at the closing (the
“Subsequent
Closing”)
on the
Subsequent Closing Date (as defined below), in addition to the other deliveries
required by this Agreement, (x) the Initial Purchaser shall pay to the Company,
by wire transfer of immediately available funds, an amount equal to the product
of (x) $25.00 times (y) the number of Optional Shares to be sold by the Company
(the “Subsequent
Purchase Price”),
and
(ii) the Company shall deposit with the Depositary, a certificate representing
up to 400 shares of Series I Preferred Stock and shall deliver to the Initial
Purchaser Series I Depositary Receipts (the “Subsequent
Depositary Receipts”)
evidencing the Optional Shares, registered in the name of Wachovia Investment
Holdings, LLC or such other name(s) as the Initial Purchaser shall have
specified no less than two business days prior to the Subsequent
Closing.
Each
of
the Initial Closing and the Subsequent Closing shall be referred to herein
as a
“Closing.”
The
Initial Purchase Price and the Subsequent Purchase Price shall be referred
to
collectively herein as the “Purchase
Price.”
The
Initial Depositary Receipts and the Subsequent Depositary Receipts shall be
referred to collectively herein as the “Depositary
Receipts.”
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(c) Closing
Date.
(i) The
Initial Closing shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
llp,
New
York, New York, on November 8, 2005 at 10:00 a.m. New York time (the
“Initial
Closing Date”).
(ii) The
Subsequent Closing shall take place at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ llp,
New
York, New York, on November 18, 2005 at 10:00 a.m. New York time (the
“Subsequent
Closing Date”).
The
Initial Closing Date and the Subsequent Closing Date shall be referred to
collectively herein as the “Closing
Date.”
(d) Fee.
(i) At
the
Initial Closing, the Company shall pay the Initial Purchaser by wire transfer
of
immediately available funds a fee equal to $4,725,000.00, which fee shall be
paid other than from the proceeds of the sale of the Shares.
(ii) If
the
Company exercises its option to sell the Optional Shares, at the Subsequent
Closing, the Company shall pay the Initial Purchaser by wire transfer of
immediately available funds a fee equal to 3.15% of the Subsequent Purchase
Price, which fee shall be paid other than from the proceeds of the sale of
the
Shares.
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(e) Restriction
on Transfer of Shares.
(i) Basic
Restriction.
Until
May 8, 2006, the Initial Purchaser shall not transfer any of the Shares without
the prior written approval of the Company, which approval may be withheld in
the
Company’s sole and absolute discretion. Thereafter, the Initial Purchaser may
transfer any or all of the Shares without any approval from the Company, subject
to the requirements of Rule 144A and any other applicable securities
laws.
(ii) REIT-Related
Transfer Restrictions.
The
Initial Purchaser acknowledges that Article IX of the Company’s Articles of
Incorporation (the “Articles”)
prohibits certain transfers of Shares in order to preserve the Company’s status
as a real estate investment trust (“REIT”)
under
the Internal Revenue Code of 1986, as amended (the “Code”),
and
that the Company intends to disclose such transfer restrictions in the Offering
Memorandum.
Section
2. Representations
and Warranties.
(A) Representations
and Warranties of the Initial Purchaser. The Initial Purchaser represents and
warrants to and agrees with the Company as of the date hereof and as of each
Closing Date as follows:
(a) Organization
of the Initial Purchaser.
The
Initial Purchaser has been incorporated and is validly existing as a limited
liability company in good standing under the laws of Delaware.
(b) Authorization
of Transaction.
The
Initial Purchaser has, and at each Closing Date will have, full corporate power
to execute and deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation of the
Initial Purchaser, enforceable in accordance with its terms and conditions,
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 Initial Purchaser need not give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement, except for such as have been
obtained and except for such as would not materially impede the transactions
contemplated by this Agreement.
(c) Noncontravention.
Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which the
Initial Purchaser is subject or any provision of its organizational documents,
except for such violations as would not materially impede the transactions
contemplated by this Agreement.
(d) Disclosure
of Information.
The
Initial Purchaser represents that it and its representatives have (i) had an
opportunity to ask questions and receive answers from the Company regarding
the
terms and conditions of the sale of the Shares and the business, properties,
prospects and financial condition of the Company and (ii) received copies of
the
SEC Filings (as defined in Section
2(B)(d)).
(e) Investment
Experience.
The
Initial Purchaser has substantial experience as a purchaser of shares of
companies similar to the Company and acknowledges that it is able to fend for
itself, can bear the economic risk of its investment and could afford a complete
loss of such investment, and has such knowledge and experience in financial
or
business matters that it is capable of evaluating the merits and risks of the
investment in the Shares. The Initial Purchaser acknowledges that in purchasing
the Shares it must be prepared to continue to bear the economic risk of such
investment for an indefinite period of time because (i) the Shares have not
been
registered under the Securities Act and cannot be sold unless they are
subsequently registered under the Securities Act and applicable state securities
laws, or unless exemptions from such registrations are available, and (ii)
the
Shares are subject to the restrictions on transfer set forth in Section
1(e)
above
and in Article IX of the Articles.
-5-
(f) Initial
Purchaser as Qualified Institutional Buyer.
The
Initial Purchaser represents and warrants to the Company that it is a “qualified
institutional buyer” within the meaning of Rule 144A under the Securities Act (a
“Qualified
Institutional Buyer”)
and an
“accredited investor” within the meaning of Rule 501(a) under the Securities Act
(an “Accredited
Investor”).
(g) Restricted
Shares.
The
Initial Purchaser understands that the Shares are characterized as “restricted
shares” under the federal securities laws inasmuch as they are being acquired
from the Company in a transaction not involving a public offering and that
under
such laws and applicable regulations such shares may be resold without
registration under the Securities Act only in certain limited
circumstances.
(h) Legends.
It is
understood that the certificates evidencing the Shares shall initially bear
substantially the following legend (in addition to any legend otherwise required
under applicable federal or state securities laws or by Section 9.10 of the
Articles):
“THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED IN THE ABSENCE OF SUCH REGISTRATION
OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM OR NOT SUBJECT TO SUCH REGISTRATION
REQUIREMENTS.
THE
HOLDER OF THIS SECURITY, BY ITS ACQUISITION HEREOF, AGREES THAT IT WILL NOT,
PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY), RESELL
OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (a) TO THE COMPANY;
(b)
TO A PERSON THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER,
AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A “QIB”), IN COMPLIANCE WITH
RULE 144A, (c) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE AND ON THE UNDERSTANDING THAT THE
COMPANY MAY REQUIRE AN OPINION OF COUNSEL BEFORE REGISTERING ANY SUCH TRANSFER
ON ITS SHARE TRANSFER RECORDS), (d) PURSUANT TO A SECURITIES ACT REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE AND THAT CONTINUES TO BE EFFECTIVE
AT
THE TIME OF SUCH TRANSFER, OR (e) PURSUANT TO ANOTHER AVAILABLE EXEMPTION,
IF
ANY, FROM SUCH REGISTRATION REQUIREMENTS OR IN A TRANSACTION NOT SUBJECT TO
SUCH
REGISTRATION REQUIREMENTS; AND AGREES THAT IT SHALL DELIVER TO EACH PERSON
TO
WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE
EFFECT OF THIS LEGEND.”
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(B) Representations
and Warranties of the Company. The Company represents and warrants to and agrees
with the Initial Purchaser as of the date hereof and as of each Closing Date
(it
being understood that such representations, warranties and agreements at each
Closing Date shall be deemed to relate to the SEC Filings as amended or
supplemented to such time) as follows:
(a) No
Registration Required.
Subject
to compliance by the Initial Purchaser with the representations and warranties
set forth in Section
2(A)(e)
and
(f)
and
Section
8
of this
Agreement and with the procedures set forth in Section
8
of this
Agreement, it is not necessary in connection with the offer, sale and delivery
of the Shares to the Initial Purchaser and to each Subsequent Purchaser in
the
manner contemplated by this Agreement to register the Shares under the
Securities Act.
(b) No
Integration of Offerings or General Solicitation.
The
Company has not, directly or indirectly, solicited any offer to buy or offered
to sell, and will not, directly or indirectly, solicit any offer to buy or
offer
to sell, 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. None
of
the Company, its affiliates (as such term is defined in Rule 501(b) under the
Securities Act (each, an “Affiliate”),
or
any person acting on its or any of their behalf (other than the Initial
Purchaser, as to whom the Company makes no representation or warranty) has
engaged or will engage, in connection with the offering of the Shares, in any
form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act with respect to the Shares, other
than
maintaining the effectiveness of the Company’s current shelf registration
statements.
-7-
(c) Eligibility
for Resale.
The
Shares are eligible for resale pursuant to Rule 144A and are not of the same
class as shares listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a United States automated interdealer
quotation system or shares of an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act of 1940 (the “Investment
Company Act,”
which
term, as used in this Agreement, includes the rules and regulations of the
Commission promulgated thereunder).
(d) SEC
Filings.
The
Annual Report of the Company on Form 10-K for the year ended December 31, 2004
filed by the Company with the Commission (including the portions of the
Company’s proxy statement incorporated by reference therein) as supplemented by
each Quarterly Report of the Company on Form 10-Q, each Current Report of the
Company on Form 8-K filed by the Company with the Commission since January
1,
2005, but not including any Current Reports on Form 8-K furnished to the
Commission pursuant to Item 7.01 or Item 2.02 (or any comparable provisions
adopted by the Commission) of Form 8-K (collectively, the “SEC
Filings”),
do
not include an untrue statement of any 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.
(e) The
Offering Memorandum.
If
delivered by the Company to the Initial Purchaser, the Offering Memorandum
shall
not, on the date of its delivery or thereafter through the completion of the
Initial Purchaser’s placement of the Shares, 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,
however,
that
this representation, warranty and agreement shall not apply to any statements
in, or omissions from, the Offering Memorandum made in reliance upon and in
conformity with information furnished in writing to the Company by the Initial
Purchaser expressly for inclusion in the Offering Memorandum or any amendment
or
supplement thereto. The Company has not distributed and will not distribute,
prior to the earlier of the Redemption Date (as defined in the Articles
Supplementary) and the completion of the Initial Purchaser’s placement of the
Shares, any offering material in connection with the offering and sale of the
Shares other than the Offering Memorandum.
(f) Incorporated
Documents.
If
delivered by the Company to the Initial Purchaser, the Offering Memorandum
shall
incorporate by reference those filings by the Company pursuant to the Exchange
Act that would be permitted to be incorporated by reference in a Registration
Statement on Form S-3 filed by the Company pursuant to the Securities
Act.
Any documents that are incorporated or deemed to be incorporated by reference
in
the Offering Memorandum at the time they were or hereafter are filed with the
Commission (collectively, the “Incorporated
Documents”)
complied and will comply in all material respects with the requirements of
the
Exchange Act and, when read together with the other information in the Offering
Memorandum, 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. The foregoing representation and warranties in this
Section
2(B)(f)
shall
not apply to any statements or omissions made in reliance on and in conformity
with information relating to the Initial Purchaser furnished in writing to
the
Company by the Initial Purchaser expressly for inclusion in the Offering
Memorandum or any amendment or supplement thereto;
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(g) Organization,
Power and Authority of Company and Operating Partnership.
The
Company has been duly organized and is validly existing as a real estate
investment trust 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. First Industrial, L.P., a Delaware limited partnership whose sole
general partner is the Company (the “Operating
Partnership”),
has
been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the Delaware Revised Uniform Limited Partnership
Act. The Company is the sole general partner of the Operating Partnership.
Each
of the Company and the Operating Partnership have, and at each Closing Date
will
have, full corporate and 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 and the transactions
contemplated hereby. The Company is, and at each 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 the
Subsidiaries, taken as a whole, or on the 846 in-service properties owned,
directly or indirectly, by the Company as of September 30, 2005 (individually,
a
“Property”
and
collectively, the “Properties”)
taken
as a whole, (ii) the issuance, validity or enforceability of the Series I
Preferred Stock or the Shares or (iii) the consummation of any of the
transactions contemplated by this Agreement (each a “Material
Adverse Effect”),
which
jurisdictions of foreign qualification or registration are identified in
Schedule 2(B)(g) hereto. The Operating Partnership is, and at each 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 qualification or registration will not have a Material
Adverse Effect, which jurisdictions of foreign qualification or registration
are
identified in Schedule 2(B)(g) hereto. Complete and correct copies of the
articles of incorporation and of the by-laws of the Company and the certificate
of limited partnership and agreement of limited partnership of the Operating
Partnership and all amendments thereto have been delivered to the Initial
Purchaser or its counsel.
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(h) Organization,
Power and Authority and Capitalization of Subsidiaries.
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 Pennsylvania, L.P. (“FIP”),
First
Industrial Harrisburg, L.P. (“FIH”)
and
First Industrial Indianapolis, L.P. (“FII”)
(the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FIP, FIH
and
FII are referred to collectively herein as the “Partnership
Subsidiaries”)
has
been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of organization.
Each of First Industrial Securities Corporation (“FISC”),
First
Industrial Indianapolis Corporation (“FIIC”),
First
Industrial Finance Corporation (“FIFC”),
First
Industrial Mortgage Corporation (“FIMC”),
First
Industrial Development Services, Inc. (“FIDSI”)
and
First Industrial Pennsylvania Corporation (“FIPC”),
(FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to collectively herein
as
the “Corporate
Subsidiaries”),
FR
First Cal, LLC, (“FR
First Cal”),
FR
Bucks Property Holding, L.P. (“FR
Bucks”),
FR
Lehigh Property Holding, L.P. (“FR
Lehigh”),
FR
Aberdeen, LLC (“FR
Aberdeen”),
FR
Lackawanna Property Holding, LP (“FR
Lackawanna”),
FR
Park Plaza, LLC, (“FR
Park”),
First
Industrial Acquisitions, Inc. (“FIAI”),
First
Industrial Harrisburg Corporation (“FIHC”),
and
FI Development Services Corporation (“FIDSC”)
(FR
First Cal, FR Bucks, FR Lehigh, FR Aberdeen, FR Lackawanna, FR Park, FIAI,
FIHC,
and FIDSC are referred to collectively herein as the “Additional
Subsidiaries,”
and
the Partnership Subsidiaries, the Corporate Subsidiaries and the Additional
Subsidiaries are referred to herein collectively as the “Subsidiaries”
or
individually as a “Subsidiary”),
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 the Additional
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a “significant subsidiary” under
Rule 1-02 of Regulation S-X (substituting “net income” for “income from
continuing operations”) promulgated under the Exchange Act. 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. FIDSI 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.). Each of the
Subsidiaries has, and at each Closing Date will
-10-
have,
full corporate, partnership or limited liability company 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 and the
transactions contemplated hereby. Each of the Corporate Subsidiaries is, and
at
each 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, which jurisdictions of foreign
qualification or registration are identified in Schedule 2(B)(h) hereto. Each
of
the Partnership Subsidiaries is, and at each 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
qualification or registration will not have a Material Adverse Effect, which
jurisdictions of foreign qualification or registration are identified in
Schedule 2(B)(h) hereto. Complete and correct copies of the charter documents,
partnership agreements and other organizational documents of the Subsidiaries
and all amendments thereto as have been requested by the Initial Purchaser
or
its counsel have been delivered to the Initial Purchaser or its
counsel.
(i) Partnership
Agreements.
As of
each Closing Date, the partnership agreement of the Operating Partnership will
have been duly authorized, executed and delivered by the Company, as general
partner and a limited partner, and the partnership agreement of each Partnership
Subsidiary will have been duly authorized, validly executed and delivered by
each partner thereto and (assuming in the case of the Operating Partnership
the
due authorization, execution and delivery of the partnership agreement by each
limited partner other than the Company) each such partnership agreement will
be
a valid, legally binding and enforceable in accordance with its terms
immediately following each Closing Date subject to (i) the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought.
All
of the issued and outstanding shares of capital stock of the Company and each
Corporate Subsidiary and all of the outstanding units of general, limited and/or
preferred partner interests of the Operating Partnership and each Partnership
Subsidiary will have been duly authorized and are validly issued, fully paid
and
non-assessable, and (except as described in the SEC Filings) will be owned
directly or indirectly (except in the case of the Company) by the Company or
the
Operating Partnership, as the case may be, free and clear of all security
interests, liens and encumbrances (except for pledges in connection with the
loan agreements of the Company, the Operating Partnership and the
Subsidiaries).
-11-
(j) Capitalization
Matters.
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 (the “Common
Stock”),
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). The shares of Series I Preferred Stock have been duly authorized for
issuance and sale pursuant to this Agreement and, when the shares of Series
I
Preferred Stock have been deposited by the Company with the Depositary in
accordance with the Deposit Agreement and the Depositary Receipts have been
issued and delivered by the Depositary and paid for by the Initial Purchaser
pursuant to this Agreement, such shares of Series I Preferred Stock shall be
validly issued, fully paid and nonassessable and the Shares represented by
the
Depositary Receipts shall be entitled to the benefits of the Deposit Agreement
and the Depositary Receipts shall constitute valid and binding agreements of
the
Depositary and the Company, enforceable in accordance with their terms (except
to the extent that enforcement thereof may be limited by (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) 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). Upon payment of the Purchase Price and delivery of
Depositary Receipts representing the Shares in accordance herewith, the Initial
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. The form of Depositary Receipts will be in due and proper form
and
will comply, in all material respects, with all applicable legal requirements.
No shares of Common Stock or preferred stock of the Company are reserved for
any
purpose other than shares to be issued pursuant to this Agreement and except
as
disclosed in this Agreement or the SEC Filings.
(k) Financial
Statements.
The
financial statements, supporting schedules and related notes included, or
incorporated by reference, in the SEC Filings comply in all material respects
with the requirements of the Securities Act and the Exchange Act, as applicable,
and present fairly the consolidated financial condition of the entity or
entities or group presented or included therein, as of the respective dates
thereof, and its consolidated results of operations and cash flows for the
respective periods covered thereby, are all in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
entire period involved, except as otherwise stated therein and except, in the
case of interim periods, for the notes thereto and normal year-end adjustments.
The pro forma and/or as adjusted financial information included or incorporated
by reference in the SEC Filings has been prepared in accordance with the
applicable requirements of the Securities Act and the American Institute of
Certified Public Accountants guidelines with respect to pro forma and as
adjusted financial information, and includes all adjustments necessary to
present fairly the pro forma and/or as adjusted financial condition of the
entity or entities or group presented or included therein at the respective
dates indicated and the results of operations and cash flows for the respective
periods specified. PricewaterhouseCoopers LLP (the “Accountants”)
who
have reported on such financial statements, schedules and related notes, are
independent registered public accountants with respect to the Company, the
Operating Partnership and the Partnership Subsidiaries as required by the
Securities Act.
-12-
(l) No
Change in Capitalization.
Subsequent to the respective dates as of which information is given in the
SEC
Filings and prior to each Closing Date, (i) there has not been and will not
have
been at each Closing Date, any change in the capitalization, long term or short
term debt or in the capital stock or equity of each of the Company, the
Operating Partnership or any of the Subsidiaries which would be material to
the
Company, the Operating Partnership and the Subsidiaries considered as one
enterprise (anything which would be material to the Operating Partnership,
the
Company and the Subsidiaries, considered as one enterprise, being hereinafter
referred to as “Material”), (ii) except as set forth in the SEC Filings, as
contemplated by this Agreement and the transactions referred to herein and
as
relating to or resulting from the issuance of the Company’s Series I Flexible
Cumulative Redeemable Preferred Stock, neither the Operating Partnership, the
Company nor any of the Subsidiaries has incurred nor will any of them incur
any
liabilities or obligations, direct or contingent, which would be Material,
nor
has any of them entered into nor will any of them enter into any transactions,
which would be Material, (iii) there has not been any Material Adverse Effect,
(iv) except for regular quarterly distributions on the Company’s shares of
Common Stock, and the dividends on the shares of the Company’s (a) Depositary
Shares each representing 1/100 of a share of 8 5/8% Series C Cumulative
Preferred Stock (the “Series
C Preferred Stock”),
(b)
Depositary Shares each representing 1/100 of a share of the Company’s 6.236%
Series F Flexible Cumulative Preferred Stock (the “Series
F Preferred Stock”)
and
(c) Depositary Shares each representing 1/100 of a share of the Company’s 7.236%
Series G Flexible Cumulative Preferred Stock (the “Series
G Preferred Stock”),
the
Company has not paid or declared and will not pay or declare any dividends
or
other distributions of any kind on any class of its capital stock, and (v)
except for distributions in connection with regular quarterly distributions
on
partnership units, the Operating Partnership has not paid any distributions
of
any kind on its partnership units.
(m) Ratings.
At the
date of this Agreement, the Company’s senior unsecured notes are rated Baa2 by
▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”),
BBB
by Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(“S&P”),
and
BBB by Fitch Ratings Ltd. (“Fitch” and, together with Moody’s and S&P, the
“Rating
Agencies”)
and
the Company’s Preferred Shares are rated Baa3 by Moody’s, BBB- by S&P and
BBB- by Fitch.
-13-
(n) Investment
Company.
None of
the Company, the Operating Partnership or any of the Subsidiaries is, or as
of
each Closing Date will be, required to be registered under the Investment
Company Act.
(o) No
Material Actions or Proceedings.
To the
knowledge of the Company and the Operating Partnership, after due inquiry,
except as set forth in the SEC Filings, there are no actions, suits,
proceedings, investigations or inquiries, pending or, after due inquiry,
threatened against or affecting the Operating Partnership, the Company or any
of
the Subsidiaries or any of their respective officers or directors in their
capacity as such or of which any of their respective properties or assets or
any
Property is the subject or bound, before or by any Federal or state court,
commission, regulatory body, administrative agency or other governmental body,
domestic or foreign, wherein an unfavorable ruling, decision or finding would
reasonably be expected to have a Material Adverse Effect.
(p) Compliance
With Law.
The
Company, the Operating Partnership and each of the Subsidiaries (i) have, and
at
each 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 SEC Filings and are in material compliance with such, and
(B) complied in all material respects with all laws, regulations and orders
applicable to it or its business and (ii) are not, and at each Closing Date
will
not be, in breach of or default in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a “Contract or Other
Agreement”) or under any applicable law, rule, order, administrative regulation
or administrative or court decree to which it is a party or by which any of
its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in
the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any material Contract or Other Agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. None of the Operating Partnership, the Company or
any
of the Subsidiaries is, nor at each 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.
-14-
(q) No
Further Consents Required.
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 Series
I
Preferred Stock and the Shares hereunder except such as may be required under
state securities, Blue Sky or real estate syndication laws or the by-laws,
the
corporate financing rule or the conflict of interests rule of the NASD in
connection with the purchase and distribution by the Initial 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, the Deposit Agreement, the Articles
Supplementary, the form of certificate representing the Series I Preferred
Stock
and the form of the Depositary Receipts with the Commission as exhibits to
a
Form 8-K, which the Company agrees to make in a timely manner.
(r) Full
Corporate and Partnership Authority.
The
Company and the Operating Partnership have full corporate or partnership power,
as the case may be, to enter into each of this Agreement and the Deposit
Agreement and to execute, deliver and file the Articles Supplementary to the
extent each is a party thereto. This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating Partnership,
constitutes a valid and binding agreement of the Company and the Operating
Partnership, and, assuming due authorization, execution and delivery by the
Initial Purchaser, is enforceable against the Company and the Operating
Partnership 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 this Agreement, the Articles
Supplementary and the Deposit Agreement and the consummation of the transactions
contemplated hereby, and compliance by each of the Company, the Operating
Partnership and the Subsidiaries with its obligations hereunder and thereunder,
to the extent each is a party thereto, will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets or
properties of the Operating Partnership, the Company or any of the Subsidiaries
pursuant to the terms or provisions of, or result in a breach or violation
of
any of the terms or provisions of, or constitute a default under, or give any
other party a right to terminate any of its obligations under, or result in
the
acceleration of any obligation under, the certificate of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational documents of the Operating Partnership, the Company or any of
the
Subsidiaries, any Contract or Other Agreement to which the Company, the
Operating Partnership or any of the Subsidiaries is a party or by which the
Company, the Operating Partnership or any of the Subsidiaries or any of their
assets or properties are bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency (foreign or domestic) or body applicable to the
business or properties of the Operating Partnership, the Company or any of
the
Subsidiaries or to the Properties, in each case except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not
have
a Material Adverse Effect.
-15-
(s) Title
to Properties.
As of
each Closing Date, each of the Company, the Operating Partnership and the
Subsidiaries will have good and marketable title to all properties and assets
described in the SEC Filings as owned by it, free and clear of all liens,
encumbrances, claims, security interests and defects, except such as are
described in the SEC Filings, or such as secure the loan facilities of the
Operating Partnership, the Company and the Subsidiaries, or would not result
in
a Material Adverse Effect.
(t) Insurance.
The
Operating Partnership, the Company and the Partnership Subsidiaries have
property, title, casualty and liability insurance in favor of the Operating
Partnership, the Company or the Partnership Subsidiaries with respect to each
of
the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Operating Partnership, the Company
and the Partnership Subsidiaries except in such instances where the tenant
is
carrying such insurance or the tenant is self-insuring risks;
(u) Authorization
of the Deposit Agreement.
The
Deposit Agreement has been duly authorized by the Company and, at each Closing
Date, will have been duly executed and delivered by the Company, and, assuming
due authorization, execution, and delivery of the Deposit Agreement by the
other
respective parties thereto, the Deposit Agreement will, at each Closing Date,
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms (except to the extent that enforcement
thereof may be limited by (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).
(v) Compliance
With Environmental Laws.
Except
as disclosed in the SEC Filings, and, except for activities, conditions,
circumstances or matters that would not have a Material Adverse Effect: (i)
to
the knowledge of the Company and the Subsidiaries, after due inquiry, the
operations of the Operating Partnership, the Company and the Subsidiaries are
in
compliance with all Environmental Laws (as defined below) and all requirements
of applicable permits, licenses, approvals and other authorizations issued
pursuant to Environmental Laws; (ii) to the knowledge of the Operating
Partnership, the Company and the Subsidiaries, after due inquiry, none of the
Operating Partnership, the Company or the Subsidiaries has caused or suffered
to
occur any Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from any
Property, and no condition exists on, in, under or adjacent to any Property
that
could reasonably be
-16-
expected
to result in the incurrence of liabilities under, or any violations of, any
Environmental Law or give rise to the imposition of any Lien (as defined below),
under any Environmental Law; (iii) none of the Operating Partnership, the
Company or the Subsidiaries has received any written notice of a claim under
or
pursuant to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (iv) none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
of,
or received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to
undertake and/or request the investigation, remediation, clean-up or removal
of
any Hazardous Substance released into the Environment on, in, under or from
any
Property; and (v) no Property is included or, to the knowledge of the Operating
Partnership, the Company or the Subsidiaries, after due inquiry, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA (as defined
below) by the United States Environmental Protection Agency (the “EPA”), or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that
any Property has otherwise been identified in a published writing by the EPA
as
a potential CERCLA removal, remedial or response site or, to the knowledge
of
the Company and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law.
As
used
herein, “Hazardous Substance” shall include any hazardous substance, hazardous
waste, toxic substance, pollutant or hazardous material, including, without
limitation, oil, petroleum or any petroleum-derived substance or waste, asbestos
or asbestos-containing materials, PCB’s, pesticides, explosives, radioactive
materials, dioxins, urea formaldehyde insulation or any constituent of any
such
substance, pollutant or waste which is subject to regulation under any
Environmental Law (including, without limitation, materials listed in the United
States Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
§ 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. § 9601 et
seq.) (“CERCLA”), the Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. § 6901, et seq.), the Clean Air Act, as amended (42 U.S.C.
§ 7401, et seq.), the Clean Water Act, as amended (33 U.S.C. § 1251,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. § 2601,
et seq.), the Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
§ 651, et seq.), the Hazardous Materials Transportation Act, as amended
(49
U.S.C. § 1801, et seq.), and all other federal, state and local laws,
ordinances, regulations, rules and orders relating to the protection of the
environment or of human health from environmental effects; “Governmental
Authority” shall mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or enforce
any
Environmental Law; “Lien” shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or affecting such
Property; and “Release” shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
emanating or disposing of any Hazardous Substance into the Environment,
including, without limitation, the abandonment or discard of barrels,
containers, tanks (including, without limitation, underground storage tanks)
or
other receptacles containing or previously containing and containing a residue
of any Hazardous Substance.
-17-
None
of
the environmental consultants which prepared environmental and asbestos
inspection reports with respect to any of the Properties was employed for such
purpose on a contingent basis or has any substantial interest in the Operating
Partnership, the Company or any of the Subsidiaries, and none of them nor any
of
their directors, officers or employees is connected with the Operating
Partnership, the Company or any of the Subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee.
(w) REIT
Status.
The
Company, the Operating Partnership and the Subsidiaries are organized and
operate in a manner so that the Company qualifies as a REIT under Sections
856
through 860 of the Code, and the Company has elected to be taxed as a REIT
under
the Code commencing with the taxable year ended December 31, 1994. The Company,
the Operating Partnership and the Subsidiaries intend to continue to be
organized and operate so that the Company shall qualify as a REIT for the
foreseeable future, unless the Company’s board of directors determines that it
is no longer in the best interests of the Company to be so
qualified.
(x) Material
Document Filings.
There is
no material document or contract of a character required to be described or
referred to in the SEC Filings or to be filed as an exhibit to the SEC Filings
which is not described or filed as required therein, except for the filing
of
this Agreement, the Deposit Agreement, the Articles Supplementary, the form
of
certificate representing the Series I Preferred Stock and the form of the
Depositary Receipts with the Commission, which the Company agrees to make in
a
timely manner, and the descriptions thereof or references thereto are accurate
in all material respects.
(y) No
Labor Disputes.
None of
the Operating Partnership, the Company or any of the Subsidiaries is involved
in
any labor dispute nor, to the knowledge of the Operating Partnership, the
Company or the Subsidiaries, after due inquiry, is any such dispute threatened
which would be Material.
(z) Intellectual
Property.
The
Operating Partnership, the Company and the Subsidiaries own, or are licensed
or
otherwise have the full exclusive right to use, all material trademarks and
trade names which are used in or necessary for the conduct of their respective
businesses as described in the SEC Filings. To the knowledge of the Company
and
the Operating Partnership, no claims have been asserted by any person to the
use
of any such trademarks or trade names or challenging or questioning the validity
or effectiveness of any such trademark or trade name. The use, in connection
with the business and operations of the Operating Partnership, the Company
and
the Subsidiaries, of such trademarks and trade names does not, to the Company’s
or the Operating Partnership’s knowledge, infringe on the rights of any
person.
-18-
(aa) Tax
Returns.
Each of
the Operating Partnership, the Company and the Subsidiaries has filed all
federal, state, local and foreign income tax returns which were required to
be
filed (except in any case in which the failure to so file would not result
in a
Material Adverse Effect) and has paid all taxes required to be paid and any
other assessment, fine or penalty levied against it, to the extent that any
of
the foregoing would otherwise be delinquent, except, in all cases, for any
such
tax, assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a Material
Adverse Effect.
(bb) Partnership
Tax Treatment. The
Operating Partnership and each of the Partnership Subsidiaries is properly
treated as a partnership for U.S. federal income tax purposes and not as a
“publicly traded partnership.”
(cc) Disclosure
of Relationships.
No
relationship, direct or indirect, exists between or among the Company, the
Operating Partnership or the Subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, the Operating
Partnership or the Subsidiaries on the other hand, which is required by the
Securities Act to be described in the SEC Filings which is not so
described.
(dd) Company’s
Internal Accounting System.
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 and 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.
(ee) Limits
on Dividends.
No
Subsidiary of the Company is currently prohibited, directly or indirectly,
from
paying any dividends to the Company, from making any other distribution on
such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company, except to the extent disclosed in the SEC Filings or as would not
be
Material, individually or in the aggregate.
-19-
(ff) No
Limits on Redemption of Shares.
The
redemption by the Company of the Shares in accordance with the Articles would
not constitute a breach or violation of, or a default under, or conflict with,
or give any other party a right to terminate any of its obligations under,
or
result in the acceleration of any obligation under, or result in the creation
or
imposition of any lien, charge or encumbrance upon the Properties or any of
the
other assets of the Company or any of its Subsidiaries pursuant to the terms
or
provisions of the Articles or Bylaws of the Company, the articles or certificate
of incorporation or bylaws or partnership agreement or operating agreement
of
any of the Subsidiaries or any material contract, lease or other instrument
to
which the Company or any of the Subsidiaries is a party or by which any of
their
property may be bound or any judgment, ruling, decree, order, law, statute,
rule
or regulation of any court or other governmental agency or body applicable
to
the Properties or the business or properties of the Company or any of the
Subsidiaries, provided
that the
Company makes no representation as to whether any redemption would be restricted
under any financial covenants of the Operating Partnership’s $500 million
unsecured credit facility, outstanding mortgage loans or senior unsecured debt
instruments (as described in or filed with the SEC Filings) or any other
material credit agreement to which the Company, the Operating Partnership or
any
of the Subsidiaries is a party and, provided,
further,
that
the Company does not currently expect that such financial covenants would limit
its ability to redeem the Shares within the 180-day period following the date
of
this Agreement.
(gg) Certificates
and Documents.
Any
certificate or other document signed by any officer or authorized representative
of the Operating Partnership, the Company or any Subsidiary, and delivered
to
the Initial Purchaser or to counsel for the Initial Purchaser in connection
with
the sale of the Shares shall be deemed a representation and warranty by such
entity, as the case may be, to the Initial Purchaser as to the matters covered
thereby.
(hh) No
Brokers.
There
are no contracts, agreements or understandings between the Company or any of
its
Subsidiaries and any person that would give rise to a valid claim against the
Company or the Initial Purchaser for a brokerage commission, finder’s fee or
other like payment in connection with the offering, issuance and sale of the
Shares, other than the fee payable to the Initial Purchaser pursuant to this
Agreement.
Section
3. Additional
Covenants of the Company. The Company further covenants and agrees with the
Initial Purchaser as follows:
(a) Future
Reports to the Initial Purchaser.
For so
long as the Shares are outstanding and are held by the Initial Purchaser, the
Company shall furnish to Wachovia Investment Holdings, LLC at the address set
forth below as soon as available, copies of any report or communication of
the
Company mailed generally to holders of its capital stock or debt instruments,
except for any such reports or communications available through the Commission’s
▇▇▇▇▇ system.
-20-
(b) No
Integration.
The
Company agrees that it shall not make any offer or sale of securities if, as
a
result of the doctrine of “integration” referred to in Rule 502 under the
Securities Act, such offer or sale would render unavailable (for the purpose
of
(i) the sale of the Shares by the Company to the Initial Purchaser or (ii)
the
resale of the Shares by the Initial Purchaser to Subsequent Purchasers) the
exemption from the registration requirements of the Securities Act provided
by
Section 4(2) thereof, including the provisions of Regulation D under the
Securities Act, or by Rule 144A thereunder or otherwise.
(c) Due
Diligence.
In
connection with the original placement of the Shares, from the date hereof
to
each Closing Date, the Company agrees that the Initial Purchaser and counsel
for
the Initial Purchaser shall have the right to make reasonable inquiries into
the
business of the Company, and the Company also agrees to provide answers to
such
inquiries (to the extent that such information is available or can be acquired
and made available without extraordinary effort or expense and to the extent
the
provision thereof is not prohibited by applicable law).
(d) Investment
Company Act.
The
Company agrees to take such steps as shall be necessary to ensure that neither
the Company nor any Subsidiary shall become an “investment company” within the
meaning of such term under the Investment Company Act of 1940 and the rules
and
regulations of the Commission thereunder.
(e) Payment
of Company Expenses.
The
Company agrees to pay all costs, fees and expenses incurred in connection with
the performance of its obligations under this Agreement and in connection with
the transactions contemplated by this Agreement and by the Offering Memorandum,
including, without limitation, (i) all expenses incident to the issuance and
delivery of the Shares (including all printing and engraving costs), (ii) all
fees and expenses of the registrar and transfer agent of the Shares, (iii)
all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Shares to the Initial Purchaser, (iv) all fees and expenses
of
the Company’s counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Offering
Memorandum (including financial statements), and all amendments and supplements
thereto, (vi) all filing fees, attorneys’ fees and expenses reasonably incurred
by the Company or the Initial Purchaser in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration
of)
all or any part of the Shares for offer and sale or placement, as the case
may
be, under the Blue Sky laws and, if requested by the Initial Purchaser,
preparing and printing a “Blue Sky Survey” or memorandum, and any supplements
thereto, provided
that in
the case of the Initial Purchaser, such filing fees, attorneys’ fees and
expenses shall not exceed $10,000, and (vii) the fees payable in connection
with
the inclusion of the Shares in The PORTAL Market. Except as provided in this
Section
3(e),
Section
6
and
Section
9
of this
Agreement, the Initial Purchaser shall pay its own expenses.
-21-
(f) Registration
Rights Agreement.
Unless
the Shares have been redeemed, no later than May 8, 2006, the Company shall
authorize the execution, delivery and performance of the Registration Rights
Agreement (including provisions for Registration Default liquidated damages
similar to those set forth in Section
7(A)(e)
of this
Agreement).
(g) No
Limits on Redemption of Shares.
The
Company will not, and will cause its Subsidiaries not to, amend the Articles
or
Bylaws of the Company, the articles or certificate of incorporation or bylaws
or
partnership agreement or operating agreement of any of the Subsidiaries or
amend
or enter into any contract, lease or other instrument or suffer to exist any
judgment, ruling, decree, or order of any court or other governmental agency
or
body applicable to the Company or any of its Subsidiaries that would prohibit
or
restrict in any material manner the ability of the Company to redeem the
Shares.
The
Initial Purchaser may, in its sole discretion, but shall not be required to,
waive in writing the performance by the Company of any one or more of the
foregoing covenants or extend the time for their performance.
Section
4. Appointment
of Wachovia Investment Holdings, LLC, as Initial Dividend Rate Calculation
Agent. The initial Dividend Rate Calculation Agent under the Articles
Supplementary for the Company is appointed as follows:
(a) Appointment
of Calculation Agent.
Upon
the terms and subject to the conditions set forth in this Section
4,
effective from and after each Closing, the Company hereby appoints Wachovia
Investment Holdings, LLC as its Dividend Rate Calculation Agent under the
Articles Supplementary (in such capacity, the “Calculation
Agent”),
and
Wachovia Investment Holdings, LLC hereby accepts such appointment.
(b) Duties
of Calculation Agent.
In
acting under this Section
4,
the
Calculation Agent shall be obligated to perform only such duties as are set
forth specifically herein and in the Articles Supplementary as duties of the
Dividend Rate Calculation Agent. In acting under this Agreement, the Calculation
Agent (in its capacity as such) assumes no obligation towards, or any
relationship of agency or trust for or with, the holders of the
Shares.
(c) Expenses.
The
Company shall reimburse the Calculation Agent for all reasonable expenses,
disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered by it as Calculation Agent under this
Agreement (including reasonable legal fees and expenses) upon receiving an
accounting therefor from the Calculation Agent; provided,
however,
until
May 8, 2006, the Calculation Agent shall pay its expenses incurred in its role
as Calculation Agent.
-22-
(d) Rights
and Liabilities of Calculation Agent.
The
Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any certificate,
affidavit, instruction, notice, request, direction, order, statement or other
paper, document or communication reasonably believed by it to be genuine and
correct. Any certificate, affidavit, instruction, notice, request, direction,
order, statement or other paper, document or communication from the Company
made
or given by it and sent, delivered or directed to the Calculation Agent under,
pursuant to or as permitted by any provision of this Agreement shall be
sufficient for purposes of this Agreement if such communication is in writing
and signed by any officer of the Company. The Calculation Agent may consult
with
counsel satisfactory to it and, as to legal matters, the opinion of such counsel
shall constitute full and complete authorization and protection of the
Calculation Agent with respect to any action taken, omitted to be taken or
suffered by it hereunder in good faith and in accordance with and in reliance
upon the opinion of such counsel.
(e) Right
of Calculation Agent to Own Shares.
The
Calculation Agent may act as Calculation Agent and it and its officers,
employees and shareholders may become owners of, or acquire any interest in,
Series I Preferred Stock and the Shares, with the same rights as if the
Calculation Agent were not the Calculation Agent, and may engage in, or have
an
interest in, any financial or other transaction with the Company or any of
its
affiliates as if the Calculation Agent were not the Calculation Agent
hereunder.
(f) Termination,
Resignation or Removal of Calculation Agent.
Wachovia Investment Holdings, LLC may at any time terminate its agreement to
act
as Calculation Agent by giving no less than 90 days’ written notice to the
Company (which notice shall specify the date or event upon which such
termination is to become effective) unless the Company consents in writing
to a
shorter time. The Company may terminate its appointment of Wachovia Investment
Holdings, LLC as Calculation Agent at any time by giving written notice to
Wachovia Investment Holdings, LLC and specifying the date on which the
termination shall become effective; provided,
however,
that no
termination by the Calculation Agent or by the Company shall become effective
prior to the date of the appointment of a successor Calculation Agent by the
Company as provided in Section
4(g)
hereof
and the acceptance of such appointment by such successor Calculation Agent.
If
an instrument of acceptance by a successor Calculation Agent shall not have
been
delivered to the resigning or terminated Calculation Agent within 30 days after
the giving of such notice of resignation and the Company shall not have informed
the Calculation Agent that it does not intend to appoint a successor Calculation
Agent, the resigning Calculation Agent may petition any court of competent
jurisdiction for the appointment of a successor Calculation Agent. Upon
termination by either party pursuant to the provisions of this Section
4(f),
the
Calculation Agent with respect to which this Agreement has been terminated
shall
be entitled to the reimbursement of all reasonable expenses, disbursements
and
advances incurred or made by it after November 25, 2004 in connection with
the
services rendered by it hereunder, as provided by Section
4(c)
hereof.
-23-
(g) Appointment
of Successor Calculation Agent.
Any
successor Calculation Agent appointed by the Company shall execute and deliver
to the Calculation Agent and to the Company an instrument accepting such
appointment, and thereupon such successor Calculation Agent shall, without
any
further act or instrument, become vested with all the rights, immunities, duties
and obligations of the Calculation Agent, with like effect as if originally
named as Calculation Agent hereunder, and the Calculation Agent shall thereupon
be obligated to transfer and deliver, and such successor Calculation Agent
shall
be entitled to receive and accept copies of any available records maintained
by
the Calculation Agent in connection with the performance of its obligations
hereunder.
(h) Indemnification.
The
Company shall indemnify and hold harmless the Calculation Agent and its officers
and employees from and against all actions claims, damages, liabilities, losses
and expenses (including reasonable legal fees and expenses) relating to or
arising out of actions or omissions in its capacity as Calculation Agent, except
actions, claims, damages, liabilities, losses and expenses caused by the gross
negligence or willful misconduct of the Calculation Agent or its officers or
employees. The indemnification provided by this Section
4(g)
shall
survive the redemption or exchange of the Shares and the termination of this
Agreement.
The
Company will not be liable for any settlement of any action or claim effected
without its written consent.
(i) Merger,
Consolidation or Sale of Business by Calculation Agent.
Any
corporation into which the Calculation Agent may be merged, converted or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Calculation Agent may be a party, or any corporation
to which the Calculation Agent may sell or otherwise transfer all or
substantially all of its corporate trust business shall, to the extent permitted
by applicable law, become the Calculation Agent under this Agreement without
the
execution of any document or any further act by the parties hereto.
(j) Consequential
Damages.
In no
event shall the Calculation Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Calculation Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
-24-
Section
5. Conditions
to Each Closing
(A) Conditions
to the Obligations of the Initial Purchaser. The obligations of the Initial
Purchaser to purchase and pay for the Shares as provided in this Agreement
on
each Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company as of the date of this Agreement and
as of
each Closing Date, as though then made, and to the timely performance by the
Company of its covenants and other obligations under this Agreement to be
performed at or prior to such date, and to each of the following additional
conditions:
(a) Opinions
of Company Counsel.
On each
Closing Date, the Initial Purchaser shall have received the opinions of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
securities and tax counsel for the Company; ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel
for the Company; and Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
Illinois counsel for the Company, each dated the Closing Date, in form and
substance satisfactory to the Initial Purchaser.
(b) Company
Certificate.
On each
Closing Date the Initial Purchaser shall have received from the Company a
certificate, dated the date of its delivery, signed by two officers of the
Company holding the offices of (x) Chief Executive Officer and (y) Chief
Financial Officer, or superior officers, in form and substance satisfactory
to
the Initial Purchaser, to the effect that:
(i) Either
no
request for information regarding the Shares or this private placement on the
part of the staff of the Commission or any state “Blue Sky” authorities has been
received, or if any such request has been received, it has been complied with
to
the satisfaction of the staff of the Commission or such
authorities;
(ii) Each
signer of such certificate has carefully examined the SEC Filings and, as of
the
date of such certificate, the SEC Filings do not contain any untrue statement
of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading. All documents required to be filed
under the Exchange Act since January 1, 2004 have been filed as
required;
(iii) Each
of
the representations and warranties of the Company contained in this Agreement
was, when originally made, and is, at the time such certificate is delivered,
true and correct;
(iv) Each
of
the covenants required to be performed by the Company herein on or prior to
the
delivery of such certificate has been duly, timely and fully performed in all
material respects, and each condition herein required to be complied with by
the
Company on or prior to the date of such certificate has been duly, timely and
fully complied with;
-25-
(v) Except
as
set forth in the SEC Filings, as contemplated by this Agreement and the
transactions referred to herein and as relating to or resulting from the
issuance of the Company’s Series I Flexible Cumulative Redeemable Preferred
Stock for the period from and after the date of this Agreement through the
date
of such certificate, (A) the Company and its Subsidiaries, taken as a whole,
have not incurred any liabilities or obligations, direct or contingent, or
entered into any transactions (other than, in each case, in the ordinary course
of business consistent with past practice), that are material to the Company
and
its Subsidiaries, taken as a whole, (B) there has not been any material
change in the shares of beneficial interest, short-term debt or long-term debt
of the Company and (C) there has not been any material adverse change,
or
any development involving a prospective material adverse change, in the
financial condition, business, prospects, net worth or results of operations
of
the Company and its Subsidiaries, taken as a whole.
(c) Other
Documents.
At each
Closing, counsel to the Initial Purchaser shall have been furnished with such
other documents as such counsel may reasonably require in order to evidence
the
accuracy and completeness of any of the representations and warranties, or
the
fulfillment of any of the conditions, contained in this Agreement; and all
proceedings taken by the Company in connection with the issuance and sale of
the
Shares as contemplated in this Agreement shall be satisfactory in form and
substance to the Initial Purchaser and to counsel to the Initial
Purchaser.
(d) No
Unmet Commission Requests.
Any
request for additional information on the part of the staff of the Commission
or
any state securities authorities regarding the Shares or this private placement
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities.
(e) No
Material Adverse Change.
Except
as set forth in the SEC Filings, as contemplated by this Agreement and the
transactions referred to herein and as relating to or resulting from the
issuance of the Company’s Series I Flexible Cumulative Redeemable Preferred
Stock since the date of this Agreement, (i) the Company and its Subsidiaries,
taken as a whole, shall not have incurred any liabilities or obligations, direct
or contingent, or entered into any transactions (other than, in each case,
in
the ordinary course of business consistent with past practice), that are
material to the Company and its Subsidiaries taken as a whole, and (ii) there
shall not have occurred any material change in the shares of beneficial
interest, short-term debt or long-term debt of the Company, (iii) there shall
not have occurred any material adverse change, or any development involving
a
prospective material adverse change, in the financial condition, business,
prospects, net worth or results of operations of the Company and its
Subsidiaries, taken as a whole, and (iv) neither the Company nor any of its
Subsidiaries shall have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty not covered
by insurance if, in the reasonable judgment of the Initial Purchaser, any such
loss or interference causes a Material Adverse Effect.
-26-
(f) No
Material Litigation Commenced.
Since
the respective dates as of which information is given in the SEC Filings, there
shall have been no litigation or other proceeding instituted against the Company
or any of its Subsidiaries or any of their respective officers, directors or
trustees in their capacities as such, before or by any Federal, state or local
court, commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would be reasonably expected to result in a Material
Adverse Effect.
(g) Subsequent
Closing Condition.
On or
prior to the Subsequent Closing Date, the Initial Purchaser shall have received
from the Company a waiver in form and substance reasonably satisfactory to
the
Initial Purchaser and the Company, effectively waiving the
ownership limit (as defined in the Articles) as it applies to the Initial
Purchaser (the “Ownership
Limit Waiver”).
All
such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to the Initial Purchaser and its counsel. If any condition specified
in this Section
5(A)
shall
not have been fulfilled when and as required to be fulfilled, this Agreement
may
be terminated by the Initial Purchaser by notice to the Company at any time,
and
any such termination shall be without liability of any party to any other party,
except that the indemnity and contribution agreements set forth in Section
4(h)
and
Section
9
hereof,
the provisions concerning payment of expenses under Section
3(e),
and
Section
6
and the
provisions relating to governing law shall remain in effect.
(B) Conditions
to the Obligations of the Company.
(a) The
obligations of the Company to sell the Shares as provided in this Agreement
on
each Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Initial Purchaser as of the date of this Agreement
and as of such Closing Date, as though then made, and to the timely performance
by the Initial Purchaser of its covenants and other obligations under this
Agreement to be performed at or prior to such date, and to the condition that
there shall not be any injunction, judgment, order, decree, ruling or charge
in
effect preventing, or any litigation seeking to prevent or interfere with,
the
consummation of any of the transactions contemplated by this
Agreement.
(b) If
any
condition specified in this Section
5(B)
shall
not have been fulfilled when and as required to be fulfilled, this Agreement
may
be terminated by the Company by notice to the Initial Purchaser at any time
and
any such termination shall be without liability of any party to any other party,
except that the indemnity and contribution agreements set forth in Section
4(h)
and
Section
9
hereof,
the provisions concerning payment of expenses under Section
3(e)
and
Section
6
and the
provisions relating to governing law shall remain in effect.
-27-
(c) Subsequent
Closing Conditions.
(i) On
or
prior to the Subsequent Closing Date, the Company shall have received from
the
Initial Purchaser a letter of representation in form and substance satisfactory
to the Company and the Initial Purchaser, making certain representations in
connection with the Ownership Limit Waiver.
(ii) On
or
prior to the Subsequent Closing Date, the Company shall have received corporate
authority granting the Ownership Limit Waiver.
Section
6. Reimbursement
of Initial Purchaser’s Expenses. If this Agreement is terminated by the Initial
Purchaser pursuant to Section
5(A),
or if
the sale to the Initial Purchaser of the Shares on any Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision of
this
Agreement, the Company agrees to reimburse the Initial Purchaser upon demand
for
all reasonable out-of-pocket expenses that shall have been incurred by the
Initial Purchaser in connection with the proposed purchase and the offering
and
sale of the Shares to have been delivered at such Closing Date, including,
but
not limited to, fees and disbursements of advisors, travel expenses, postage,
facsimile and telephone charges.
Section
7. Contingent
Obligations of the Company if the Company Fails to Issue a Redemption Notice
for
the Shares by April 10, 2006. If by 5:00 p.m. New York time on April 10, 2006
the Company has not delivered to the Initial Purchaser an irrevocable notice
of
redemption of all of the Shares with a Redemption Date on or before May 8,
2006,
then the Company shall be obligated as set forth below in this Section
7;
provided,
however,
that
each and every such obligation shall terminate upon the redemption of all the
Series I Depositary Shares by the Company; provided
further,
however,
that
such termination shall not relieve the Company from any liability for damages
suffered by the Initial Purchaser as a result of any breach of such obligations
by the Company prior to such termination. Time shall be of the essence with
respect to the Company’s compliance with the deadlines set forth in this
Section
7.
(A) Creating
a Marketable Security.
(a) Additional
Issuer Information.
In
order to render the Shares eligible for resale pursuant to Rule 144A under
the
Securities Act for the benefit of holders and beneficial owners from time to
time of the Shares, the Company shall furnish at its expense upon request,
while
any of the Shares remain outstanding, to any holder of Shares or prospective
purchasers of Shares the information specified in Rule 144A(d)(4) (such
information, whether made available to holders or prospective purchasers or
furnished to the Commission, is herein referred to as “Additional
Issuer Information”),
unless the Company is then subject to Section 13 or 15(d) of the Exchange Act
or
exempt from reporting pursuant to Rule 12g3-2(b) of the Exchange
Act.
-28-
(b) Offering
Memorandum.
The
Company shall prepare an Offering Memorandum of the sort customary in Rule
144A
offerings (including all disclosures required by Rule 144A) for use by the
Initial Purchaser in connection with resale of the Shares to Subsequent
Purchasers, which shall be in final form no later than May 8, 2006. The Offering
Memorandum shall also disclose the REIT-related transfer limitations referred
to
in Section
1(e)
of this
Agreement and other restrictions on transfer contained in the Articles. The
Company agrees to furnish to the Initial Purchaser, without charge, as many
copies of the Offering Memorandum and any amendments and supplements thereto
as
the Initial Purchaser shall reasonably request from time to time for use in
connection with resales of the Shares.
(c) Resale
Shelf Registration Statement.
If the
Shares have not been redeemed, the Company shall, no later than July 6, 2006,
file with the Commission the Resale Shelf Registration Statement, including
a
prospectus for use by the holders of the Shares, as selling shareholders of
their Shares, and shall use its best efforts to have the Resale Shelf
Registration Statement and a companion Form 8-A registration statement, if
any,
for the Shares declared effective no later August 4, 2006 and thereafter to
keep
such registrations continuously effective with respect to the Shares other
than
(i) Shares that have been exchanged or disposed of pursuant to the Resale
Shelf Registration Statement, (ii) Shares that are eligible to be sold
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act and (iii) Shares that have ceased to
be
outstanding. To the extent they are eligible, the Company shall use its
reasonable best efforts to list the Shares on the New York Stock Exchange
(“NYSE”)
commencing upon the effective date of such Form 8-A.
(d) Registration
Rights Agreement.
The
Company shall in good faith negotiate with the Initial Purchaser and no later
than May 8, 2006 shall sign the Registration Rights Agreement for the benefit
of
the holders of the Shares from time to time. The Registration Rights Agreement
may provide additional terms regarding the Resale Shelf Registration Statement.
The Registration Rights Agreement shall require the Company, upon the request
of
20% in interest of the holders of the Shares, to file a demand registration
statement (the “Demand
Registration Statement”
and,
together with the Resale Registration Statement, the “Registration
Statements”)
in
connection with an underwritten offering of the Shares, provided
that the
Company shall not be required to file more than one such demand registration.
In
such underwritten offering, the Company shall cause its officers, attorneys
and
auditors to supply customary certificates, opinions and comfort letters at
the
closing. The Registration Rights Agreement shall include typical indemnification
and contribution agreements by the Company for the benefit of the selling
shareholders under both Registration Statements.
-29-
(e) Liquidated
Damages.
If the
Shares have not been redeemed and (i) the Resale Shelf Registration Statement
has not been filed with the Commission by July 6, 2006, (ii) by August 7, 2006
such Resale Shelf Registration Statement has not been declared effective by
the
Commission, or (iii) after the Resale Shelf Registration Statement has been
declared effective, it ceases to be effective or otherwise becomes unusable
by
the holders of Shares who are selling shareholders thereunder for any reason,
and the aggregate number of calendar days in any consecutive twelve (12) month
period for which the Resale Shelf Registration Statement shall not be usable
exceeds 30 days in the aggregate (each such event referred to in clauses (i)
through (iii), inclusive, a “Registration
Default”),
a
cash payment which the Company acknowledges shall constitute liquidated damages
for any such Registration Default, (a “Default
Payment”)
shall
be payable quarterly in arrears on each Dividend Payment Date (as defined in
the
Articles Supplementary) to all record holders of the Shares other than
(i) shares that have been exchanged or disposed of pursuant to the Resale
Shelf Registration Statement, (ii) Shares that are eligible to be sold
pursuant to Rule 144(k) (or any similar provision then in force, but not Rule
144A) under the Securities Act and (iii) Shares that have ceased to
be
outstanding (in addition to any regular distribution accruing or payable on
such
Shares) and will accrue beginning on (and including) the date on which any
such
Registration Default shall occur and ending on (but excluding) the date on
which
all Registration Defaults have been cured. Default Payments shall accrue at
a
rate of $0.25 (equivalent to 1.00% of the $25.00 liquidation preference) per
annum per Share. The Company shall cause the Default Payments to be paid on
the
regular Dividend Payment Date, whether or not the Company shall have declared
a
dividend or other distribution on the Shares for such quarter.
The
parties to this Agreement agree that the record holders of the Shares may suffer
damages in the event that a Registration Default has occurred and is continuing,
and that it would not be possible to ascertain the amount of such damages.
The
parties to this Agreement further agree that the Default Payments shall be
liquidated damages provided for in this Section
7(A)(e)
of this
Agreement and constitute a reasonable estimate of the damages that may be
incurred by the holders by reason of a Registration Default.
(f) DTC
Eligibility.
No
later than May 8, 2006, the Company shall cause the Shares to be eligible for
clearance and settlement through the facilities of The Depository Trust Company,
including, if necessary and to the extent appropriate for a security intended
to
be traded under Rule 144A and to the extent allowed by applicable law, removal
of the legends referred to in Section
2(A)(h).
(g) PORTAL
Market Inclusion.
Upon
the request of the Initial Purchaser, the Company shall use its best efforts
to
cause the Shares to be eligible for trading in the Private Offering, Resales
and
Trading through Automated Linkages Market of the National Association of
Securities Dealers, Inc. (the “PORTAL
Market”).
(h) Ratings.
The
Company shall use its commercially reasonable efforts to cause the Rating
Agencies to issue ratings with respect to the Shares not later than May 8,
2006,
or as soon thereafter as practicable.
-30-
(i) Initial
Purchaser’s Review of Final Offering Memorandum and Proposed Amendments and
Supplements.
Prior
to the delivery of any proposed Offering Memorandum or any proposed amendment
or
supplement thereto by the Company to the Initial Purchaser, the Company shall
furnish to the Initial Purchaser for review a copy of such proposed Offering
Memorandum or proposed amendment or supplement thereto, as the case may be,
prior to printing such Offering Memorandum or any such amendment or supplement
thereto, and the Company shall not print the Offering Memorandum or issue any
proposed amendment or supplement containing any provision to which the Initial
Purchaser or its counsel reasonably objects (with reasonable prior notice in
writing to the Company).
(j) Amendments
and Supplements to the Offering Memorandum, Registration Statements and Other
Securities Law Matters.
(i) If,
prior
to the completion of the placement of the Shares by the Initial Purchaser with
the Subsequent Purchasers, any event shall have occurred or condition exists
as
a result of which the Offering Memorandum or either Registration Statement,
in
each case as then amended or supplemented, would include an untrue statement
of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made when such document is delivered, not misleading, or if in the reasonable
opinion of counsel for the Initial Purchaser it is otherwise necessary to amend
or supplement the Offering Memorandum or either Registration Statement to comply
with applicable law, the Company agrees promptly to prepare (subject to this
Section
7(A)),
file
with the Commission (with respect to any Registration Statement amendment or
any
documents incorporated by reference) and furnish at its own expense to the
Initial Purchaser, such number of copies of amendments or supplements to the
Offering Memorandum or a Registration Statement, as the case may be, as are
reasonably requested by the Initial Purchaser containing such information as
is
necessary so that the statements therein as so amended or supplemented will
not,
in the light of the circumstances when such document is delivered to a
purchaser, be misleading or so that such document, as amended or supplemented,
will comply with applicable law.
(ii) Following
the effectiveness of either Registration Statement and for so long as the Shares
are outstanding if, in the judgment of the Initial Purchaser, the Initial
Purchaser or any of its Affiliates is required to deliver a prospectus in
connection with sales of, or market-making activities with respect to, the
Shares, the Company agrees (A) periodically to amend the applicable Registration
Statement so that the information contained therein complies with the
requirements of Section 10(a) of the Securities Act, (B) to amend the applicable
registration statement or supplement the related prospectus or the documents
incorporated therein when necessary to reflect any material changes in the
information provided therein so that the registration statement and the
prospectus will not contain any untrue statement of a material fact or omit
to
state any material fact necessary in order to make the statements therein,
in
the light of the circumstances existing as of the date the prospectus is so
delivered, not misleading and (C) to provide the Initial Purchaser with copies
of each amendment or supplement filed and such other documents as the Initial
Purchaser may reasonably request.
-31-
(iii) The
Company hereby expressly acknowledges that the indemnification and contribution
provisions of Section
9
of this
Agreement are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to in
this
Section
7(A).
(k) Blue
Sky Compliance.
The
Company (i) shall cooperate with the Initial Purchaser and counsel for the
Initial Purchaser to qualify or register the Shares for sale under (or obtain
exemptions from the application of) the Blue Sky or state or other securities
laws of those jurisdictions (both domestic and foreign) as may be designated
by
the Initial Purchaser or its counsel, (ii) shall comply with such laws and
(iii)
shall continue such qualifications, registrations and exemptions in effect
so
long as required for the Initial Purchaser’s placement of the Shares to the
Subsequent Purchasers; provided,
however,
that
the Company shall not be required to qualify as a foreign corporation or to
take
any action that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject
to
taxation as a foreign corporation; and provided,
further,
that
the Company may require that offers and sales in one or more jurisdictions
must
be made through brokers licensed in that jurisdiction. The Company will advise
the Initial Purchaser promptly of its knowledge of the suspension of the
qualification or registration of (or any such exemption relating to) the Shares
for offering, sale or trading in any jurisdiction or any initiation or threat
of
any proceeding for any such purpose, and, in the event of the issuance of any
order suspending such qualification, registration or exemption, the Company
shall use its best efforts to obtain the withdrawal thereof at the earliest
possible moment.
(l) Exchange
Act Filings.
Prior
to the completion of the placement of the Shares by the Initial Purchaser with
the Subsequent Purchasers, the Company shall file, on a timely basis, with
the
Commission and the NYSE all reports and documents required to be filed under
Section 13 or 15(d) of the Exchange Act.
-32-
(B) Offering
Commencement Date/Customary Rule 144A Deliveries. If the Company fails to redeem
all the Shares on or before May 8, 2006, then the Company shall deliver, and
shall cause its attorneys, accountants and officers, as applicable, to deliver
the following documents to the Initial Purchaser at the offices of Hunton &
▇▇▇▇▇▇▇▇ LLP, Richmond, Virginia no later than 5:00 p.m. New York time on May
8,
2006, (the “Offering Commencement Date”).
(a) Opinions
of Counsel.
On the
Offering Commencement Date, the Initial Purchaser shall receive the corporate
and federal income tax opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp,
securities and tax counsel for the Company, the corporate opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇ LLP, Maryland counsel for the Company, and the corporate opinion of Barack
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Illinois counsel for the Company,
each dated the date of its delivery, in substantially the forms set forth in
Exhibit
▇-▇,
▇▇▇▇▇▇▇
▇-▇,
and
Exhibit
B-3,
respectively.
(b) Accountant’s
Comfort Letter.
On the
Offering Commencement Date, the Initial Purchaser shall receive from the
Accountants (who shall be independent public accountants within the meaning
of
Regulation S-X under the Securities Act and the Exchange Act) a letter dated
as
of such date addressed to the Initial Purchaser, containing statements and
information of the type ordinarily included in an accountants’“comfort letter”
to underwriters of public offerings, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin), with respect to the
audited, unaudited and pro forma, if any, financial statements and certain
financial information contained, or incorporated by reference, in the Offering
Memorandum in form and substance reasonably satisfactory to the Initial
Purchaser.
(c) Officers’
Certificate.
On the
Offering Commencement Date, the Initial Purchaser shall receive from the Company
a certificate, dated the date of its delivery, signed by each of the President
and the Chief Financial Officer of the Company, in form and substance
satisfactory to the Initial Purchaser, to the effect that:
(i) Any
request for information regarding the Shares or the Rule 144A offering on the
part of the staff of the Commission or any such authorities has been complied
with to the satisfaction of the staff of the Commission or such
authorities;
(ii) Each
signer of such certificate has carefully examined the Offering Memorandum (which
term includes the Incorporated Documents) and (A) as of the date of such
certificate, such documents, taken together, do not include an untrue statement
of any 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 and (B) no event has occurred as a result of which it
would
be necessary to amend or supplement the Offering Memorandum in order to make
the
statements therein not untrue or misleading in any material respect. All
documents required to be filed under the Exchange Act since January 1, 2005
have
been filed as required;
-33-
(iii) Each
of
the representations and warranties of the Company contained in this Agreement
was, when originally made, and is, at the time such certificate is delivered,
true and correct in all material respects;
(iv) Each
of
the covenants required to be performed by the Company herein on or prior to
the
delivery of such certificate has been duly, timely and fully performed in all
material respects, and each condition herein required to be complied with by
the
Company on or prior to the date of such certificate has been duly, timely and
fully complied with;
(v) Except
as
set forth in the SEC Filings, as contemplated by this Agreement and the
transactions referred to herein and as relating to or resulting from the
issuance of the Company’s Series I Flexible Cumulative Redeemable Preferred
Stock for the period from and after the date of this Agreement through the
date
of such certificate, (A) the Company and its Subsidiaries, taken as a whole,
have not incurred any liabilities or obligations, direct or contingent, or
entered into any transactions (other than, in each case, in the ordinary course
of business consistent with past practice), that are material to the Company
and
its Subsidiaries, taken as a whole, (B) there has not occurred any material
change in the shares of beneficial interest, short-term debt or long-term debt
of the Company and (C) there has not occurred any material adverse change,
or any development involving a prospective material adverse change, in the
financial condition, business, prospects, net worth or results of operations
of
the Company and its Subsidiaries, taken as a whole.
(vi) Other
Documents.
On the
Offering Commencement Date, counsel to the Initial Purchaser shall be furnished
with such other documents as such counsel may reasonably require in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, contained in this
Agreement.
All
such
opinions, certificates, letters and other documents will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to the Initial Purchaser and its counsel. The Initial Purchaser may,
in its sole discretion, but shall not be required to, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
-34-
Section
8. Offer,
Sale and Resale Procedures. The Initial Purchaser and the Company hereby
establish and agree to observe the following procedures in connection with
the
offer and sale of the Shares:
(a) Offers
and Sales only to Qualified Institutional Buyers or Institutional Accredited
Investors.
Offers
and sales of the Shares will be made only by the Initial Purchaser or Affiliates
thereof qualified or registered to do so in the jurisdictions in which such
offers or sales are made. Each such offer or sale shall be made
only:
(i) to
persons whom the offeror or seller, or any person acting on behalf of them,
reasonably believes to be qualified institutional buyers (as defined in Rule
144A under the Securities Act); or
(ii) to
a
limited number of other institutional accredited investors (as such term is
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) that the offeror or seller reasonably believes to be and, with respect
to
sales and deliveries, that are Accredited Investors (“Institutional
Accredited Investors”).
(b) No
General Solicitation.
The
Shares will be offered by approaching prospective Subsequent Purchasers on
an
individual basis. No general solicitation or general advertising (within the
meaning of Rule 502(c) under the Securities Act) will be used in connection
with
the offering of the Shares.
(c) Purchases
by Non-Bank Fiduciaries.
In the
case of a non-bank Subsequent Purchaser of Shares acting as a fiduciary for
one
or more third parties, in connection with an offer and sale to such purchaser
pursuant to Section
8(a)
above,
each third party shall, in the reasonable judgment of the Initial Purchaser,
be
a Qualified Institutional Buyer.
(d) Rule
144A Reliance and Restrictions on Transfer.
The
Offering Memorandum shall make prospective offerees aware of the reliance by
the
offeror and/or seller on the exemption provided by Rule 144A and shall provide
that investors that acquire any Shares shall be deemed to have agreed that
such
Shares may only be resold or otherwise transferred if such Shares are registered
for sale under the Securities Act, or pursuant to an available exemption from
the registration requirements of the Securities Act (including Rule 144A),
or in
a transaction not otherwise subject to the Securities Act.
(e) No
Liability of Initial Purchaser Following the Sale of the Shares.
Following the sale of the Shares by the Initial Purchaser to Subsequent
Purchasers pursuant to the terms of this Agreement, the Initial Purchaser shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company including any losses, damages
or
liabilities under the Securities Act, arising from or relating to any subsequent
resale or transfer of any Shares other than by the Initial
Purchaser.
-35-
Section
9. Indemnification
and Contribution.
The
Company and the Operating Partnership, jointly and severally, agree to indemnify
and hold harmless the Initial Purchaser, its officers and directors, and each
person, if any, who controls the Initial Purchaser within the meaning or either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in any Offering
Memorandum (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein,
in
light of the circumstances under which they were made, not misleading except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to the Initial Purchaser
furnished to the Company or the Operating Partnership in writing by the Initial
Purchaser expressly for use therein. The foregoing indemnity agreement shall
be
in addition to any liability which the Company and the Operating Partnership
may
otherwise have.
The
Initial Purchaser agrees to indemnify and hold harmless the Company and the
Operating Partnership, and the Company’s and the Operating Partnership’s
officers and directors and each person who controls the Company or the Operating
Partnership within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from
the
Company and the Operating Partnership to the Initial Purchaser, but only with
reference to information relating to the Initial Purchaser furnished to the
Company and the Operating Partnership in writing by the Initial Purchaser
expressly for use in the Offering Memorandum or any amendment or supplement
thereto. Notwithstanding the preceding, in no case shall the Initial Purchaser
be liable or responsible for any amount in excess of the fee specified in
Section
1(d)
received
by such Initial Purchaser in connection with the purchase of the Shares pursuant
to this Agreement.
If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the “Indemnifying
Person”)
shall
promptly notify the person against whom such indemnity may be sought (the
“Indemnified
Person”)
in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to
the
contrary, (ii) the Indemnifying Person has failed within a reasonable time
to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such
-36-
proceeding
(including any impleaded parties) include both the Indemnifying Person and
the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Initial
Purchaser and such control persons of Initial Purchaser shall be designated
in
writing by Wachovia Capital Markets, LLC and any such separate firm for the
Company, the Operating Partnership, their directors, their officers and such
control persons of the Company and the Operating Partnership or authorized
representatives shall be designated in writing by the Company or the Operating
Partnership. The Indemnifying Person shall not be liable for any settlement
of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss
or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses
of
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of
the
aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to
the
date of such settlement. If it is ultimately determined that an Indemnified
Person was not entitled to indemnification hereunder, such Indemnified Person
shall be responsible for repaying or reimbursing the Indemnifying Person for
any
amounts so paid or incurred by such Indemnifying Person pursuant to this
paragraph. No Indemnifying Person shall, without the prior written consent
of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (i) includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an Indemnified Person.
In no event shall any Indemnifying Person have any liability or responsibility
in respect of the settlement or compromise of, or consent to the entry of any
judgment with respect to any pending or threatened action or claim effected
without its prior written consent.
If
the
indemnification provided for in the first and second paragraphs of this
Section
9
is
unavailable or insufficient to hold harmless an Indemnified Person in respect
of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership on the one hand
and the Initial Purchaser on the other hand from the offering of the Shares
or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault
of
the Company and the Operating Partnership on the one hand and the Initial
Purchaser on the other in connection with
-37-
the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Operating Partnership on
the
one hand and the Initial Purchaser on the other shall be deemed to be in the
same respective proportions as the net proceeds from the offering of such Shares
(before deducting expenses other than fees payable pursuant to Section
1(d)
herein)
received by the Company and the Operating Partnership and the total underwriting
discounts and the commissions received by the Initial Purchaser bear to the
aggregate public offering price of the Shares. The relative fault of the Company
and the Operating Partnership on the one hand and the Initial Purchaser on
the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Operating Partnership on the one hand or by the Initial Purchaser on
the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The
Company, the Operating Partnership and the Initial Purchaser agree that it
would
not be just and equitable if contribution pursuant to this Section
9
were
determined by pro rata allocation or by any other method of allocation that
does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person
as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action
or claim. Notwithstanding the provisions of this Section
9,
in no
event shall the Initial Purchaser be required to contribute any amount in
excess
of the fee, specified in Section
1(d),
received by the Initial Purchaser in connection with the purchase of the
Shares
pursuant to this Agreement. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The
remedies provided for in this Section
9
are not
exclusive and shall not limit any rights or remedies which may otherwise
be
available to any indemnified party at law or in equity.
The
indemnity and contribution agreements contained in this Section
9
and the
representations, warranties and covenants of the Company, the Operating
Partnership and the Initial Purchaser set forth in this Agreement shall remain
operative and in full force and effect regardless of (a) any termination of
this
Agreement, (b) any investigation made by or on behalf of the Initial Purchaser
or any person controlling the Initial Purchaser or by or on behalf of the
Company, its officers or directors or any other person controlling the Company
or the Operating Partnership and (c) acceptance of and payment for any of the
Shares.
-38-
Section
10. Representations
and Agreements to Survive Delivery. The agreements set forth in Section
6,
Section
7,
Section
8
and
Section
9
shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Initial Purchasers or any controlling person of
the
Initial Purchaser, or by or on behalf of the Company or of any of its
Subsidiaries, and shall survive delivery of and payment for the
Shares.
Section
11. Notices.
All notices or communications hereunder shall be in writing and shall be mailed,
delivered or telecopied and confirmed (including confirmation by email if so
indicated):
(a) if
to the
Company, to:
First
Industrial Realty Trust, Inc.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with
a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
(b) and
if to
the Initial Purchaser to:
Wachovia
Investment Holdings, LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
with
a
copy to:
Hunton
& ▇▇▇▇▇▇▇▇ LLP
Riverfront
Plaza, East Tower
▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
-39-
Any
party
to this Agreement may change such address for notices by sending to the other
parties to this Agreement written notice of a new address for such
purpose.
Section
12. Parties.
This Agreement shall inure to the benefit of and be binding upon the Initial
Purchaser, the Company and the Operating Partnership and their respective
successors. Nothing expressed or mentioned in this Agreement is intended, or
shall be construed, to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons
and
officers, trustees and directors referred to in Section
4(h)
and
Section
9
hereof
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers, trustees and directors
and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Shares shall be deemed to be a successor
by
reason merely of such purchase.
Section
13. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE
LAWS OF THE STATE OF NEW YORK.
Section
14. Counterparts.
This Agreement may be executed in one or more counterparts, signature pages
may
be detached from such separately executed counterparts and reattached to other
counterparts and, in each such case, the executed counterparts hereof shall
constitute a single instrument. Signature pages may be delivered by
telecopy.
Section
15. Enforceability.
In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
16. Waiver
of
Rights to Trial by Jury. The Company and the Initial Purchaser each hereby
irrevocably waive any right they may have to a trial by jury in respect of
any
claim based upon or arising out of this Agreement or the transactions
contemplated hereby.
Section
17. Amendments
and Modifications. This Agreement may not be amended or otherwise modified
or
any provision hereof waived except by an instrument in writing signed by the
Initial Purchaser, the Company and the Operating Partnership.
[SIGNATURE
PAGE FOLLOWS.]
-40-
If
the
foregoing correctly sets forth the understanding between the Company, the
Initial Purchaser and the Operating Partnership, please so indicate in the
space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Initial Purchaser, the Company and the Operating
Partnership.
FIRST
INDUSTRIAL REALTY TRUST, INC.
By: /s/▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
CFO
FIRST
INDUSTRIAL L.P.
By: First
Industrial Realty Trust, Inc.,
as
its
sole general partner
By: /s/▇▇▇▇▇▇▇
▇. Havala___________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
CFO
ACCEPTED
as of the date first written above:
WACHOVIA
INVESTMENT HOLDINGS, LLC
By: /s/
▇▇▇▇▇ ▇. Casey_____________________
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇
Title: Director
-41-
Schedule
2(B)(g)
Jurisdictions
of Foreign Qualification of the Company and the Operating
Partnership
|
ENTITY:
|
JURISDICTION
|
|
First
Industrial Realty Trust, Inc.,
a
Maryland corporation
|
California
Florida
Georgia
Illinois
Indiana
Michigan
Minnesota
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Utah
|
|
First
Industrial, L.P., a Delaware
limited
partnership
|
Arizona
California
Colorado
Connecticut
Florida
Georgia
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Missouri
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
Utah
Virginia
Wisconsin
|
Schedule
2(B)(h)
Jurisdictions
of Foreign Qualification of the Subsidiaries
|
ENTITY
|
JURISDICTION
|
|
First
Industrial Financing Partnership, L.P.
a
Delaware limited partnership
|
Georgia
Illinois
Iowa
Kansas
Maryland
Michigan
Minnesota
Missouri
New
Hampshire
New
Jersey
Pennsylvania
Tennessee
Texas
Wisconsin
|
|
First
Industrial Acquisitions, Inc., a Maryland corporation
|
Arizona
California
Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
|
|
First
Industrial Pennsylvania Corporation,
a
Maryland corporation
|
Pennsylvania
|
|
First
Industrial Pennsylvania, L.P., a Delaware limited partnership
|
Colorado
Indiana
Pennsylvania
|
|
First
Industrial Harrisburg Corporation, a Maryland corporation
|
California
New
Jersey
Pennsylvania
|
-2-
|
First
Industrial Harrisburg, L.P., a Delaware limited partnership
|
Pennsylvania
|
|
First
Industrial Securities Corporation, a Maryland corporation
|
Illinois
Michigan
|
|
First
Industrial Securities, L.P., a Delaware limited partnership
|
Illinois
Michigan
Minnesota
Pennsylvania
|
|
First
Industrial Mortgage Corporation, a Maryland corporation
|
Illinois
Michigan
|
|
First
Industrial Mortgage Partnership, L.P., a Delaware limited
partnership
|
Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
|
|
First
Industrial Indianapolis Corporation, a Maryland corporation
|
Indiana
|
|
First
Industrial Indianapolis, L.P., a Delaware limited partnership
|
Indiana
|
|
FI
Development Services Corporation, a Maryland corporation
|
Florida
Illinois
Wisconsin
|
|
First
Industrial Finance Corporation, a Maryland corporation
|
Georgia
Illinois
Michigan
Wisconsin
|
|
First
Industrial Development Services, Inc., a Maryland corporation
|
Arizona
Arkansas
California
Colorado
Florida
Georgia
Illinois
Indiana
Iowa
Louisiana
Michigan
Minnesota
Missouri
Nevada
New
Jersey
New
York
North
Carolina
Ohio
Pennsylvania
Tennessee
Texas
Utah
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Wisconsin
|
-3-
EXHIBIT
A
Form
of Articles Supplementary
Series I
Flexible Cumulative Redeemable Preferred Stock
(Liquidation
Preference $250,000.00 per Share)
ARTICLES
SUPPLEMENTARY
FIRST
INDUSTRIAL REALTY TRUST, INC.
____________________________
Articles
Supplementary of Board of Directors Classifying
and
Designating a Series of Preferred Stock as
Series I
Flexible Cumulative Redeemable Preferred Stock
and
Fixing Distribution and
Other
Preferences and Rights of Such Series
____________________________
Dated
as
of November 7, 2005
FIRST
INDUSTRIAL REALTY TRUST, INC.
__________
Articles
Supplementary of Board of Directors Classifying
and
Designating a Series of Preferred Stock as
Series I
Flexible Cumulative Redeemable Preferred Stock
and
Fixing Distribution and
Other
Preferences and Rights of Such Series
__________
First
Industrial Realty Trust, Inc., a Maryland corporation, having its principal
office in the State of Maryland in the City of Baltimore (the “Company”),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
Pursuant
to authority conferred upon the Board of Directors by the Charter and Bylaws
of
the Company, the Board of Directors on December 3, 1996, December 4,
1997, December 3, 1998, May 12, 2004 and July 28, 2004 adopted
resolutions appointing certain members of the Board of Directors to a committee
(the “Special
Committee”)
with
power to cause the Company to issue, among other things, certain series of
Preferred Stock and to determine the number of shares which shall constitute
such series and the terms of such series. The Special Committee, pursuant to
a
unanimous written consent dated November 4, 2005, (i) authorized the
creation and issuance of 1,000 shares of Series I Flexible Cumulative
Redeemable Preferred Stock, which stock was previously authorized but not
issued, and (ii) determined the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the shares of such series and the Dividend
Rate on such series. Such preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms
and
conditions of redemption, number of shares and Dividend Rate, as determined
by
such duly authorized committee, as applicable, are as follows:
Section
1. Number
of Shares and Designation.
This
class of Preferred Stock shall be designated Series I Flexible Cumulative
Redeemable Preferred Stock (the “Series I
Preferred Shares”)
and
the number of shares which shall constitute such series shall be 1,000 shares,
par value $0.01 per share, which number may be decreased (but not below the
number thereof then outstanding) from time to time by the Board of
Directors.
Section
2. Definitions.
For
purposes of these Articles Supplementary, the following terms shall have the
meanings indicated:
“Applicable
Redemption Premium”
shall
mean, with respect to any Redemption Date:
A-1
(a) if
the
Redemption Date is on or before March 8, 2006, 97.15%;
(b) if
the
Redemption Date is on or after March 9, 2006, and on or before May 7, 2006,
97.85%;
(c) if
the
Redemption Date is on or after May 8, 2006, and on or before November 7, 2006;
98.85%; and
(d) if
the
Redemption Date is on or after November 8, 2006, 100.00%.
“Applicable
Spread”
shall
mean, (i) in the event of a Downgrade, 2.25% for such period as the
Downgrade continues, (ii) in the event of a Double Downgrade, 3.25%
for
such period as the Double Downgrade continues and (iii) otherwise,
1.25%.
“Bloomberg”
means
Bloomberg Financial Markets Commodities News.
“Board
of Directors”
shall
mean the Board of Directors of the Company or any committee duly and validly
authorized by such Board of Directors to perform any of its responsibilities
with respect to the applicable matter.
“Business
Day”
shall
mean any day (other than a Saturday, Sunday or legal holiday) on which banking
institutions in The City of New York are open for business and, when used in
the
definition of One-Month LIBOR, which is also a day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
“Change
of Control Event”
shall
mean the occurrence of any one of the following events:
(a)
any
"person", as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Act”) (other than the Company, any of its
subsidiaries, any trustee, fiduciary or other person or entity holding
securities under any employee benefit plan of the Company or any of its
subsidiaries, or any underwriter or other person if the Board of Directors
has
determined that such underwriter or other person will make a timely distribution
or resale of such securities to or among other holders), together with all
"affiliates" and "associates" (as such terms are defined in Rule 12b-2 under
the
Act) of such person, shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Act), directly or indirectly, of securities
of
the Company representing 40% or more of either (A) the combined voting power
of
the Company's then outstanding securities having the right to vote in an
election of the Company's Board of Directors or (B) the then outstanding shares
of Common Stock of the Company (in either such case other than as a result
of
acquisition of securities directly from the Company); or
(b)
persons who, as of the first Issue Date, constitute the Company's Board of
Directors (the "Incumbent Directors") cease for any reason, including without
limitation, as a result of a tender offer, proxy contest, merger or similar
transaction, to constitute at least a majority of the Board of Directors,
provided that any person becoming a director of the Company subsequent to the
first Issue Date whose election or nomination for election was approved by
a
vote of at least a majority of the Incumbent Directors shall, for purposes
hereof, be considered an Incumbent Director; or
A-2
(c)
the
stockholders of the Company shall approve (A) any consolidation or merger of
the
Company where the stockholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after the consolidation or
merger, beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 50% or more of
the
voting stock of the corporation issuing cash or securities in the consolidation
or merger (or of its ultimate parent corporation, if any), (B) any sale, lease,
exchange or other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or substantially
all of the assets of the Company or (C) any plan or proposal for the liquidation
or dissolution of the Company.
“Common
Stock”
shall
mean the Common Stock, par value $0.01 per share, of the Company.
“Dividend
Default”
shall
have the meaning set forth in Section 7(1) hereof.
“Dividend
Payment Date”
shall
have the meaning set forth in Section 3(1) hereof.
“Dividend
Period”
shall
have the meaning set forth in Section 3(1) hereof.
“Dividend
Rate”
shall
mean, with respect to any specified day in any Dividend Period, a floating
rate,
expressed as a percentage of the Liquidation Preference per annum, determined
by
the Dividend Rate Calculation Agent at the request of the Company and provided
to the Company, as follows:
(a) from
November 8, 2005 through and including March 8, 2006, a rate equal to the sum
of
(i) the applicable One-Month LIBOR for such day, plus
(ii) the Applicable Spread; and
(b) from
March 9, 2006 through and including May 8, 2006, a rate equal to the sum of
(i) the applicable One-Month LIBOR for such day, plus
(ii) the Applicable Spread plus
(iii)
0.5%; and
(c) from
May
9, 2006 through and including November 8, 2006, a rate equal to the sum of
(i) the applicable One-Month LIBOR for such day, plus
(ii) the Applicable Spread plus
(iii)
1.25%; and
(d) from
and
after November 9, 2006, a rate equal to the sum of (i) the applicable
One-Month LIBOR for such day, plus
(ii) the product of (y) the Applicable Spread minus
0.75%,
multiplied
by
(z) the
number of whole calendar months elapsed between the applicable Issue Date and
the first day of the calendar month in which such specified day
occurs;
A-3
provided,
however,
that,
unless a Change of Control Event has occurred, the Dividend Rate shall not,
in
any case, exceed 20.0%. Anything to the contrary herein notwithstanding, upon
the occurrence of a Change of Control Event, the Dividend Rate shall be equal
to
22.0%.
“Dividend
Rate Calculation Agent”
shall
mean such financial institution (and any legal successor thereto) from time
to
time as shall be selected by the Company, provided
such
selection is approved by the vote or written consent of the holders of at least
two-thirds of the outstanding shares of the Series I Preferred Shares,
and
shall initially mean Wachovia Investment Holdings, LLC.
“Double
Downgrade”
shall
mean if, at any time, any two of ▇▇▇▇▇’▇, S&P or Fitch rates (i) the
long-term senior unsecured debt of the Company, or (ii) the Series C
Preferred Shares, Series F Preferred Shares or Series G Preferred Shares, below
Baa3, BBB- or BBB-, respectively.
“Downgrade”
shall
mean if, at any time, any of ▇▇▇▇▇’▇, S&P or Fitch rates (i) the long-term
senior unsecured debt of the Company, or (ii) the Series C Preferred
Shares, Series F Preferred Shares or Series G Preferred Shares, below Baa3,
BBB-
or BBB-, respectively.
“Excess
Stock”
shall
have the meaning set forth in Article IX of the Charter.
“Fitch”
shall
mean Fitch Ratings Ltd.
“Issue
Date”
shall
mean, with respect to any Series I Preferred Shares, the date on which such
Series I Preferred Shares are issued.
“Junior
Shares”
shall
mean all classes or series of Common Stock and all equity securities issued
by
the Company ranking junior to the Series I Preferred Shares as to the
payment of dividends or as to the distribution of assets upon liquidation,
dissolution or winding up of the Company, as applicable.
“Liquidation
Preference”
shall
have the meaning set forth in Section 4(1) hereof.
“▇▇▇▇▇’▇”
shall
mean ▇▇▇▇▇’▇ Investors Service, Inc.
“One-Month
LIBOR”
means,
with respect to any Dividend Period or any day included in such Dividend Period,
the rate per annum appearing as the London Interbank Offered Rate for deposits
in U.S. dollars having a term of one month, as published on the Business Day
that is two Business Days preceding the first day of the applicable Dividend
Period on the interest rate page most nearly corresponding to Telerate Page
3750
(or such other page as may replace such page for the purpose of displaying
comparable rates) at approximately 11:00 a.m. London time on the relevant date.
If such rate does not appear on the Bloomberg interest rate page most nearly
corresponding to Telerate Page 3750 (or such other page as may replace such
page
for the purpose of displaying comparable rates) on the relevant date, the
One-Month LIBOR Rate will be the arithmetic mean of the rates quoted by three
major banks in New York City selected by the Dividend Rate Calculation Agent,
at
approximately 11:00 a.m., New York City time, on the relevant date for loans
in
U.S. Dollars to leading European banks for a period of one month. The
Company shall promptly (or shall cause its Dividend Rate Calculation Agent
promptly to) notify any holder of the Series I Preferred Shares of the
Dividend Rate for any Dividend Period upon request.
A-4
“Parity
Shares”
shall
mean the Series C Preferred Shares, Series F Preferred Shares,
Series G Preferred Shares and any other series of preferred stock issued
by
the Company ranking on a parity with the Series I Preferred Shares as
to
the payment of dividends or as to distribution of assets upon liquidation,
dissolution or winding up of the Company, as applicable, whether or not the
dividend rates, dividend payment dates or redemption or liquidation prices
per
share thereof are different from those of the Series I Preferred
Shares.
“Redemption
Date”
shall
have the meaning set forth in Section 5(2) hereof.
“Redemption
Price”
shall
have the meaning set forth in Section 5(1) hereof.
“Series C
Preferred Shares”
shall
mean the 8 5/8% Series C Cumulative Preferred Stock of the
Company.
“Series F
Preferred Shares”
shall
mean the Series F Flexible Cumulative Redeemable Preferred Stock of
the
Company.
“Series G
Preferred Shares”
shall
mean the Series G Flexible Cumulative Redeemable Preferred Stock of
the
Company.
“Series I
Preferred Shares”
shall
have the meaning set forth in Section 1 hereof.
“S&P”
shall
mean Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“Telerate
Page 3750”
means
the display designated on page 3750 on MoneyLine Telerate (or such other page
as
may replace the 3750 page on the service or such other service as may be
nominated by the British Bankers’ Association for the purpose of displaying
London interbank offered rates for U.S. Dollars deposits).
Section
3. Dividend
Rights.
(1)
Dividends shall be payable in cash on the Series I Preferred Shares
when,
as and if declared by the Board of Directors, out of assets legally available
therefor: (i) for the period (the “Initial
Dividend Period”)
from
the applicable Issue Date to but excluding January 1, 2006, and (ii) for
each monthly dividend period thereafter (the Initial Dividend Period and each
monthly dividend period being hereinafter individually referred to as a
“Dividend
Period”
and
collectively referred to as “Dividend
Periods”),
which
monthly Dividend Periods shall commence on the first day of each calendar month
and shall end on and include the last day of the calendar month. Dividends
payable on each Dividend Payment Date (as defined below) with respect to each
share of Series I Preferred Stock shall be equal to the sum of the daily
amounts for each day actually elapsed during a Dividend Period, which daily
amounts shall be computed by dividing (x) the product of (A) the
Dividend Rate in effect for each such day during such Dividend Period
multiplied
by
(B) the Liquidation Preference, by (y) 360. Dividends on each
Series I Preferred Share shall be cumulative from the applicable Issue
Date
and shall accrue whether or not such dividends shall be declared, whether or
not
there shall be assets of the Company legally available for the payment of such
dividends, whether or
A-5
not
the
terms and provisions of any agreement of the Company, including any agreement
relating to its indebtedness, prohibits such declaration or payment or provides
that such authorization or payment would constitute a breach thereof or a
default thereunder, and whether or not such declaration or payment shall be
restricted or prohibited by law. Such dividends shall be payable in arrears,
without interest thereon, when, as and if declared by the Board of Directors,
on
the last day of each Dividend Period, commencing on December 31, 2005 (each,
a
“Dividend
Payment Date”);
provided,
however,
that if
any such day shall not be a Business Day, then the Dividend Payment Date shall
be the next succeeding day which is a Business Day. Each such dividend shall
be
paid to the holders of record of Series I Preferred Shares as they appear
on the stock register of the Company on such record date, not more than 45
days
nor less than 15 days preceding the applicable Dividend Payment Date, as shall
be fixed by the Board of Directors. Dividends on account of arrears for any
past
Dividend Periods may be declared and paid at any time, without reference to
any
regular Dividend Payment Date, to holders of record on such date, not more
than
45 days nor less than 15 days preceding the applicable Dividend Payment Date,
as
may be fixed by the Board of Directors. After an amount equal to full cumulative
dividends on the Series I Preferred Shares, including for the then current
Dividend Period, has been paid to holders of record of Series I Preferred
Shares entitled to receive dividends as set forth above by the Company, or
such
dividends have been declared and funds therefor set aside for payment, the
holders of Series I Preferred Shares will not be entitled to any further
dividends with respect to that Dividend Period. Any dividend payment made on
the
Series I Preferred Shares shall first be credited against the earliest
accrued but unpaid dividends due with respect to such shares.
(2) When
dividends are not paid in full upon the Series I Preferred Shares and
any
Parity Shares, all dividends declared upon the Series I Preferred Shares
and any such Parity Shares shall be declared pro
rata so
that
the amount of dividends declared per share on the Series I Preferred
Shares
and any such Parity Shares shall in all cases bear to each other that same
ratio
that the accumulated dividends per share on the Series I Preferred Shares
and any such Parity Shares bear to each other. Except as provided in the
preceding sentence, unless an amount equal to full cumulative dividends on
the
Series I Preferred Shares has been paid to holders of record of
Series I Preferred Shares entitled to receive dividends as set forth
above
by the Company for all past Dividend Periods, no dividends (other than in Junior
Shares) shall be declared or paid or set aside for payment nor shall any other
distribution be made upon any Junior Shares or Parity Shares. Unless an amount
equal to full cumulative dividends on the Series I Preferred Shares
has
been paid to holders of record of Series I Preferred Shares entitled
to
receive dividends as set forth above by the Company for all past Dividend
Periods, no Junior Shares or Parity Shares shall be redeemed, purchased, or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Company or any subsidiary of the Company, except by conversion into
or
exchange for Junior Shares.
Section
4. Liquidation.
(1) In
the event of any voluntary or involuntary liquidation, dissolution, or winding
up of the Company, the holders of Series I Preferred Shares are entitled
to
receive out of the assets of the Company available for distribution to
stockholders, before any distribution of assets is made to holders of Junior
Shares upon liquidation, liquidating distributions in the amount of the stated
value of $250,000.00 per share (the “Liquidation
Preference”),
plus
all
accumulated and unpaid dividends (whether or not earned or declared) for the
then current and all past Dividend Periods. If, upon any voluntary or
involuntary liquidation,
A-6
dissolution,
or winding up of the Company, the amounts payable with respect to the
Series I Preferred Shares and any Parity Shares are not paid in full,
the
holders of Series I Preferred Shares and of such other shares will share
ratably in any such distribution of assets of the Company in proportion to
the
full respective preferential amounts to which they are entitled. After payment
of the full amount of the liquidating distribution to which they are entitled,
the holders of Series I Preferred Shares will not be entitled to any
further participation in any distribution of assets by the Company.
(2) Written
notice of any such liquidation, dissolution or winding up of the Company,
stating the payment date or dates when, and the place or places where, the
amounts distributable in such circumstances shall be payable, shall be given
by
first class mail, postage prepaid, not less than 30 nor more than 60 days prior
to the payment date stated therein, to each record holder of the Series I
Preferred Shares at the respective addresses of such holders as the same shall
appear on the stock transfer records of the Company.
(3) For
purposes of liquidation rights, a consolidation or merger of the Company with
or
into any other corporation or other entity or a sale of all or substantially
all
of the assets of the Company shall be deemed not to be a liquidation,
dissolution or winding up of the Company.
Section
5. Redemption.
(1) The Series I Preferred Shares are redeemable, out
of assets
legally available therefore, at the option of Company, by resolution of the
Board of Directors, in whole or in part, at any time, at a cash redemption
price
equal to the sum of (x) the Liquidation Preference multiplied
by
the
Applicable Redemption Premium plus
(y)
an
amount equal to all accrued and unpaid dividends (whether or not earned or
declared), if any, to the Redemption Date (the “Redemption
Price”);
provided,
however,
that
any partial redemption will be for not less than 1,000,000 Series I Preferred
Shares.
(2) Notice
of
redemption shall be mailed by the Company by first class mail, postage prepaid,
to each record holder of the Series I Preferred Shares, not less than
five
nor more than 60 days prior to the redemption date (the “Redemption
Date”),
to
the respective addresses of such holders as the same shall appear on the stock
transfer records of the Company (except that if the sole record holder of the
Series I Preferred Shares is Wachovia Investment Holdings, LLC, such
notice
may be given by telecopy to Wachovia Securities Debt Capital Markets at
▇▇▇-▇▇▇-▇▇▇▇ (to the attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇) with a copy to Hunton &
▇▇▇▇▇▇▇▇, LLP at
804-788-8218 (to the attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.)). Each notice shall
state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the
place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price; and (iv) that dividends on the shares
to
be redeemed will cease to accumulate on such Redemption Date.
(3) In
order
to facilitate the redemption of Series I Preferred Shares, the Board
of
Directors may fix a record date for the determination of the shares to be
redeemed, such record date to be not less than five nor more than 60 days prior
to the date fixed for such redemption.
A-7
(4) Notice
having been given as provided above, from and after the date fixed for the
redemption of Series I Preferred Shares by the Company (unless the Company
shall fail to make available the money necessary to effect such redemption),
the
holders of shares to be redeemed shall cease to be stockholders with respect
to
such shares and shall have no interest in or claim against the Company by virtue
thereof and shall have no voting or other rights with respect to such shares,
except the right to receive the moneys payable upon such redemption from the
Company, less any required tax withholding amount, without interest thereon,
upon surrender (and endorsement or assignment of transfer, if required by the
Company and so stated in the notice) of their certificates, and the shares
represented thereby shall no longer be deemed to be outstanding. The Company
may, at its option, at any time after a notice of redemption has been given,
deposit the Redemption Price for the Series I Preferred Shares designated
for redemption and not yet redeemed, with the transfer agent or agents for
the
Series I Preferred Shares, as a trust fund for the benefit of the holders
of the Series I Preferred Shares designated for redemption, together
with
irrevocable instructions and authority to such transfer agent or agents that
such funds be delivered upon redemption of such shares and to pay, on and after
the date fixed for redemption or prior thereto, the Redemption Price of the
shares to their respective holders upon the surrender of their share
certificates. From and after the making of such deposit, the holders of the
shares designated for redemption shall cease to be stockholders with respect
to
such shares and shall have no interest in or claims against the Company by
virtue thereof and shall have no voting or other rights with respect to such
shares, except the right to receive from such trust fund the moneys payable
upon
such redemption, less any required tax withholding amount, without interest
thereon, upon surrender (and endorsement, if required by the Company) of their
certificates, and the shares represented thereby shall no longer be deemed
to be
outstanding. Any balance of such moneys remaining unclaimed at the end of the
five-year period commencing on the date fixed for redemption shall, subject
to
the requirements of applicable law, be repaid to the Company upon its request
expressed in a resolution of its Board of Directors.
(5) Any
Series I Preferred Shares that shall at any time have been redeemed
shall,
after such redemption, have the status of authorized but unissued preferred
stock, without designation as to series until such shares are once more
designated as part of a particular series by the Board of
Directors.
(6) The
Series I Preferred Shares are subject to the provisions of Article IX
of the Charter, including, without limitation, the provisions for the redemption
of Excess Stock (as defined in such Article IX). Notwithstanding the
provisions of Article IX of the Charter, Series I Preferred Shares
which have been exchanged pursuant to such Article for Excess Stock may be
redeemed, in whole or in part, and, if in part, pro
rata
from the
holders of record of such shares in proportion to the number of such shares
held
by such holders (with adjustments to avoid redemption of fractional shares)
or
by lot in a manner determined by the Board of Directors, at any time when
outstanding Series I Preferred Shares are being redeemed.
Section
6. Ranking.
The
Series I Preferred Shares shall, with respect to dividend rights and
rights
upon liquidation, dissolution or winding up of the Company, rank (a) senior
to Junior Shares; (b) on a parity with all Parity Shares; and
(c) junior to all equity securities issued by the Company, the terms
of
which specifically provide that such equity securities rank senior to the
Series I Preferred Shares as to the payment of dividends or as to
distribution of assets upon liquidation, dissolution or winding up of the
Company.
A-8
Section
7. Voting
Rights.
The
Series I Preferred Shares shall not have any voting powers either general
or special, except as required by law and except that:
(1) If
and
whenever full cumulative dividends on the Series I Preferred Shares,
or any
Parity Shares, for eighteen monthly dividend payment periods, whether or not
consecutive, are in arrears and unpaid, (such failure to pay by the Company,
a
“Dividend
Default”),
the
holders of all outstanding Series I Preferred Shares and any Parity
Shares,
voting as a single class without regard to series, will be entitled to elect
two
Directors until all dividends in arrears and unpaid on the Series I
Preferred Shares and any Parity Shares have been paid or declared and funds
therefor set apart for payment. At any time when such right to elect Directors
separately as a class shall have so vested, the Company may, and upon the
written request of the holders of record of Series I Preferred Shares
and
Parity Shares of the Company representing not less than 20% of the aggregate
liquidation preference of such shares then outstanding shall, call a special
meeting of stockholders for the election of such Directors. In the case of
such
a written request, such special meeting shall be held within 90 days after
the
delivery of such request and, in either case, at the place and upon the notice
provided by law and in the Bylaws of the Company; provided
that the
Company shall not be required to call such a special meeting if such request
is
received less than 120 days before the date fixed for the next ensuing Annual
Meeting of Stockholders of the Company and the holders of all outstanding
Series I Preferred Shares and Parity Shares are afforded the opportunity
to
elect such Directors (or fill any vacancy) at such Annual Meeting of
Stockholders. Directors elected as aforesaid shall serve until the next Annual
Meeting of Stockholders of the Company or until their respective successors
shall be elected and qualified, or, if sooner, until an amount equal to all
dividends in arrears and unpaid have been paid or declared and funds therefor
set apart for payment. If, prior to the end of the term of any Director elected
as aforesaid, a vacancy in the office of such Director shall occur during the
continuance of a Dividend Default by reason of death, resignation, or
disability, such vacancy shall be filled for the unexpired term by the
appointment of a new Director for the unexpired term of such former Director,
such appointment to be made by the remaining Director or Directors elected
as
aforesaid.
(2) The
affirmative vote or consent of the holders of at least two-thirds of the
outstanding Series I Preferred Shares and any Parity Shares, voting
as a
single class without regard to series, will be required to issue, authorize
or
increase the authorized amount of any class or series of shares ranking prior
to
the Series I Preferred Shares or any Parity Shares as to dividends or
upon
liquidation or to issue or authorize any obligation or security convertible
into
or evidencing a right to purchase any such security. Subject to the preceding
sentence, the affirmative vote or consent of the holders of at least two-thirds
of the outstanding Series I Preferred Shares, voting separately as a
class,
will be required to amend or repeal any provision of, or add any provision
to,
the Charter if such action would materially and adversely alter or change the
powers, preferences, privileges or rights of the Series I Preferred
Shares.
A-9
(3) Nothing
herein shall be taken to require a class vote or consent in connection with
the
authorization, designation, increase or issuance of shares of any class or
series (including additional preferred stock of any series) that rank junior
to
or on a parity with the Series I Preferred Shares as to dividends and
liquidation rights or in connection with the authorization, designation,
increase or issuance of any bonds, mortgages, debentures or other debt
obligations of the Company.
(4) For
purposes of the foregoing provisions of this Section 7, each Series I
Preferred Share shall have one vote per share, except that when any other series
of preferred shares shall have the right to vote with the Series I
Preferred Shares as a single class on any matter, then the Series I
Preferred Shares and such other series shall have with respect to such matters
one vote per $25 of liquidation preference, and fractional votes shall be
ignored.
Section
8. Conversion.
The
Series I Preferred Shares are not convertible into shares of any other
class or series of the capital stock of the Company.
Section
9. Information
Rights.
During
any period in which the Company is not subject to Section 13 or 15(d) of the
Act
and any of the Series I Preferred Shares are outstanding, the Company will
(i)
transmit by mail to all holders of the Series I Preferred Shares, as their
names
and addresses appear in the record books of the Company and without cost to
such
holders, copies of the annual reports and quarterly reports (“Reports”) that the
Company would have been required to file with the SEC pursuant to Section 13
or
15(d) of the Act if the Company were subject to such Sections (other than any
exhibits that would have been required), and (ii) promptly upon written request,
supply copies of such Reports to any prospective holder of Series I Preferred
Shares. The Company will mail the Reports to each holder of Series I Preferred
Share(s) within fifteen (15) days after the respective dates by which it would
have been required to file such Reports with the SEC if it were subject to
Section 13 or 15(d) of the Act.
Section
10. Severability
of Provisions.
If any
preference, right, voting power, restriction, limitation as to dividends or
other distributions, qualification or term or condition of redemption of the
Series I Preferred Shares set forth herein is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy,
all
other preferences, rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series I Preferred Shares set forth herein which can
be
given effect without the invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect, and no preferences,
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the
Series I Preferred Shares herein set forth shall be deemed dependent
upon
any other provision thereof unless so expressed therein.
Section
11. Effective
Time.
These
Articles Supplementary will become effective at 12:01 a.m. on November 8, 2005.
A-10
IN
WITNESS WHEREOF, the Company has caused these Articles Supplementary to be
signed in its name and on its behalf and attested to by the undersigned on
this
7th day of November, 2005 and the undersigned acknowledges under the penalties
of perjury that these Articles Supplementary are the corporate act of said
Company and that to the best of his knowledge, information and belief, the
matters and facts set forth herein are true in all material
respects.
FIRST
INDUSTRIAL REALTY TRUST, INC.
By:
Name:
Title:
Attest:
By:
Name:
Title:
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Form
of Opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp
[Date]
Wachovia
Investment Holdings, LLC
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▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First
Industrial Realty Trust, Inc.
Ladies
and Gentlemen:
This
opinion is being furnished to you pursuant to Section 7(B)(a) of the
Purchase Agreement dated November 8, 2005 (the “Purchase
Agreement”)
by and
among Wachovia Investment Holdings, LLC (the “Initial
Purchaser”)
and
First Industrial Realty Trust, Inc. (the “Company”)
and
First Industrial, L.P. (the “Operating
Partnership”)
relating to the issuance and sale to the Initial Purchaser of 10,000,000
Depositary Shares (the “Depositary
Shares”),
each
representing 1/10,000 of a share of Series I Flexible Cumulative Redeemable
Preferred Stock, par value $0.01 per share (the “Series
I Preferred Shares”)
of the
Company to be issued pursuant to a deposit agreement (the “Deposit
Agreement”),
by
and among the Company and EquiServe Inc. and EquiServe Trust Company, N.A.,
as
Depositary. All capitalized terms used herein and not defined herein shall
have
the meanings ascribed to such terms in the Purchase Agreement.
We
have
examined originals, photocopies or conformed copies of all such records of
the
Company, the Operating Partnership and the Company’s other subsidiaries and all
such agreements, certificates of public officials, certificates of officers
and
representatives of the Company, the Operating Partnership and the Company’s
other subsidiaries and such other documents as we have deemed relevant and
necessary as a basis for the opinions hereinafter expressed. In such
examinations, we have assumed the genuineness of all signatures on original
documents and the conformity to the originals of all documents submitted to
us
as conformed copies or photocopies.
Whenever
our opinion is indicated to be “to our knowledge”, it should be understood that
during the course of our representation of the Company and the Operating
Partnership we have not undertaken any independent investigation to determine
the existence or absence of facts. The words “to our knowledge” and similar
language used in certain of the opinions expressed below are limited to the
knowledge of the lawyers within our firm who have had primary responsibility
for
our work on the transactions contemplated by the Purchase Agreement. In
addition, in connection with our opinions expressed below, we advise you that
we
are not involved in the day-to-day conduct of the business of the Company,
the
Operating Partnership or the Company’s other Subsidiaries and, accordingly,
there may be facts and/or contracts of which we are not aware, and contracts
which we have not reviewed, which, if received and reviewed, might cause us
to
alter the statements made in our opinion.
B-1-1
We
advise
you that in our opinion (relying to the extent indicated below on the opinions
of other counsel):
(i) Each
of
the Company and the Corporate Subsidiaries has been duly formed and is validly
existing as a corporation in good standing under the laws of its state of
organization. The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each jurisdiction
identified in Schedule
I
hereto.
(ii) Each
of
the Operating Partnership and the Partnership Subsidiaries has been duly formed
and is validly existing as a limited partnership in good standing under the
laws
of its state of organization. The Operating Partnership and each of the
Partnership Subsidiaries has all requisite partnership power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case as
described in the SEC Filings, and the Operating Partnership has the partnership
power to enter into and perform its obligations under the Purchase Agreement.
The Operating Partnership and each of the Partnership Subsidiaries is duly
qualified or registered as a foreign partnership and is in good standing in
each
jurisdiction identified in Schedule
I
hereto,
in each case except where the failure to obtain such qualification or
registration would not have a Material Adverse Effect.
(iii) To
our
knowledge, no shares of preferred stock of the Company are reserved for any
purpose. To our knowledge, there are no outstanding securities convertible
into
or exchangeable for any preferred stock of the Company and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of preferred stock of the Company. To our knowledge, all
of
the outstanding partnership interests of the Operating Partnership and each
of
the Partnership Subsidiaries 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
our
knowledge, none of the Company, the Operating Partnership or the Subsidiaries
is
in violation of or default under its charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, and to our knowledge
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 hereof) listed as an exhibit to each of the Company’s and the
Operating Partnership’s Annual Report on Form 10-K for [the most recently
completed year] [and all other periodic or current reports filed with the
Commission subsequent to the date of such Annual Report and prior to the date
hereof], in each case as amended, if applicable, to which such entity is a
party
or by or to which such entity may be bound, or to which any of the Property
or
assets of such entity or any Property is subject or by which they are bound
(it
being understood that (i) we express no opinion with respect to matters relating
to any contract, indenture, mortgage, loan agreement, note, lease, joint venture
or partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing of any
property or assets of such entity or any other Property and (ii) we are assuming
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.
B-1-2
(v) The
Deposit Agreement and the Registration Rights Agreement were duly and validly
authorized, executed and delivered by the Company.
(vi) The
execution and delivery of the Deposit Agreement, the Registration Rights
Agreement, the issuance and sale of the Depositary Shares and the performance
by
the Company and the Operating Partnership of their respective obligations under
the Depositary Shares, Deposit Agreement and Registration Rights Agreement,
to
the extent they are a party thereto, 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 hereof) listed as an exhibit to each of the Company’s and the
Operating Partnership’s Annual Report on Form 10-K for [the most recently
completed year] [and all other periodic or current reports filed with the
Commission subsequent to the date of such Annual Report and prior to the date
hereof], in each case as amended, if applicable, to which any such entity is
a
party or by or to which it or any of them or any of their respective properties
or other assets may be bound or subject and of which we are aware (it being
understood that (i) we express no opinion with respect to matters relating
to
any contract, indenture, mortgage, loan agreement, note, lease, joint venture
or
partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing of any
property or assets of such entity or any other Property and (ii) we are assuming
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, Securities, L.P. and the Financing Partnership
or
the articles of incorporation or bylaws, as the case may be, of the Company,
FIFC or FISC; or (3) any applicable law, rule or administrative regulation,
except in each case for conflicts, breaches, violations or defaults that in
the
aggregate are not reasonably expected to have a Material Adverse
Effect.
(vii) To
our
knowledge, no material authorization, approval, consent or order of any court
or
governmental authority or agency or any other entity is required in connection
with the resale of the Depositary Shares under the Purchase Agreement, except
such as may be required under the Securities Act, the by-laws, any corporate
financing rule or conflict of interest rule of the NASD or state securities,
“blue sky” or real estate syndication laws, or such as have been received prior
to the date hereof.
B-1-3
(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
parties thereto, and is valid, legally binding and enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights and of general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(ix) Assuming
the accuracy of the Company’s representations and warranties in Section 2(B) of
the Purchase Agreement and the Initial Purchaser’s representations and
warranties in Section 2(A) of the Purchase Agreement and compliance
with
the procedures in Section 8 of the Purchase Agreement, no registration under
the
Securities Act of the Depositary Shares is required for the issuance and sale
of
the Depositary Shares to the Purchaser in the manner contemplated by the
Purchase Agreement or in connection with the initial resale of the Depositary
Shares by the Purchaser in accordance with the Purchase Agreement, assuming
that
the Purchaser and the Company comply with the procedures contemplated by the
Purchase Agreement.
(x) The
Depositary Receipts, assuming they have been duly executed and delivered by
the
Depositary against the deposit of the Series I Preferred Shares in accordance
with the provisions of the Deposit Agreement, will be validly issued and will
entitle the holders thereof to rights specified therein and in the Deposit
Agreement, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to
or affecting creditors’ rights and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(xi) None
of
the Company or the Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
In
giving
our opinion, we are relying (A) as to all matters of fact, upon
representations, statements or certificates of public officials and officers,
directors, partners, employees and representatives of, and accountants for,
each
of the Company, the Operating Partnership and the Subsidiaries, (B) as
to
all matters of Maryland law, on the opinion of McGuireWoods LLP, Baltimore,
Maryland, (C) as to all matters of Illinois law, on the opinion of Barack
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Chicago, Illinois and (D) as
to the good standing and qualification of the Company, the Operating
Partnership, FIFC, FISC and the Financing Partnership to do business in any
state or jurisdiction, upon certificates of appropriate government officials
or
opinions of counsel in such jurisdictions.
We
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.
We
are
attorneys admitted to practice in the State of New York. We express no opinion
concerning any laws other than the General Corporation Law of the State of
Delaware, the Delaware Revised Uniform Limited Partnership Act, the laws of
the
State of New York and the federal law of the United States.
B-1-4
Neither
this opinion nor any part hereof may be delivered to, or used or relied upon
by,
any person other than you without our prior written consent.
Very
truly yours,
B-1-5
SCHEDULE
I
|
ENTITY:
|
FOREIGN
QUALIFICATION:
|
|
|
First
Industrial Realty Trust, Inc.
|
Georgia
Indiana
Michigan
Minnesota
New
Jersey
New
York
|
|
|
First
Industrial, L.P.
|
Georgia
Illinois
Indiana
Minnesota
New
Jersey
New
York
|
|
|
First
Industrial Financing Partnership, L.P.
|
Georgia
Illinois
Michigan
Minnesota
|
B-1-6
[Date]
Wachovia
Investment Holdings, LLC
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Re: First
Industrial Realty Trust, Inc.
Ladies
and Gentlemen:
We
have
acted as tax counsel to First Industrial Realty Trust, Inc. (the “Company”) and
First Industrial, L.P. in connection with the Purchase Agreement dated
November 8, 2005 (the “Purchase Agreement”) by and among Wachovia
Investment Holdings, LLC, the Company and First Industrial, L.P. We have been
asked to provide our opinion as to certain federal income tax matters arising
under the Internal Revenue Code of 1986, as amended (the “Code”), relating to
the Company’s qualification for taxation as a real estate investment trust (a
“REIT”) under the Code. All capitalized terms used herein and not defined herein
shall have the meanings ascribed to such terms in our corporate opinion letter
as of even date herewith.
The
opinion set forth in this letter is based on relevant provisions of the Code,
Treasury Regulations thereunder and interpretations of the foregoing as
expressed in court decisions and administrative determinations as of the date
hereof. These provisions and interpretations are subject to changes (possibly
on
a retroactive basis) that might result in modifications of our
opinion.
For
purposes of rendering the opinion set forth in this letter, we have reviewed
the
Purchase Agreement and such other documents, law and facts as we have deemed
necessary. In our review, we have assumed the genuineness of all signatures;
the
proper execution of all documents; the authenticity of all documents submitted
to us as originals; the conformity to originals of all documents submitted
to us
as copies; and the authenticity of the originals of any copies.
The
opinion set forth in this letter is premised on certain written factual
representations made by the Company in a certificate dated as of the date hereof
(the “Certificate”) and is also premised on an assumption that if the Company
ultimately were found not to have satisfied the gross income requirements of
the
REIT provisions as a result of certain development agreements entered into
by
the Company, such failure was due to reasonable cause and not due to willful
neglect. For purposes of our opinion, we have not made an independent
investigation of the representations contained in the Certificate, and
consequently we have relied on the representations therein that the information
contained in the Certificate or otherwise furnished to us accurately describes
all material facts relevant to our opinion. Although we have not independently
investigated the representations made to us in the Certificate, nothing has
come
to our attention that would lead us to question the accuracy of any such
representations.
B-1-7
Based
upon and subject to the foregoing we are of the opinion that, commencing with
the Company’s taxable year ended December 31, 1994, the Company has been
organized and operated in conformity with the requirements for qualification
and
taxation as a REIT under the Code, and the Company’s current and proposed method
of operation (as represented by the Company to us in the Certificate) will
enable it to continue to meet the requirements for qualification and taxation
as
a REIT under the Code.
We
express no opinion other than the opinion expressly set forth above (the
“Opinion”). The Opinion is not binding on the Internal Revenue Service (the
“IRS”) and the IRS may disagree with the Opinion. Although we believe that the
Opinion would be sustained if challenged, there can be no assurance that this
will be the case.
The
Opinion is based upon the law as it currently exists. Consequently, future
changes in the law may cause the federal income tax treatment of the matters
referred to herein to be materially and adversely different from that described
above (possibly on a retroactive basis). In addition, any variation in the
facts
from those set forth in the Purchase Agreement or the representations contained
in the Certificate or otherwise provided to us may affect the conclusions stated
in the Opinion. We assume no obligation to modify or supplement the Opinion
if,
after the date hereof, there is any change in law or we become aware of any
facts that might change the Opinion. Moreover, the Company’s qualification and
taxation as a REIT depend upon the Company’s ability to meet, through actual
operating results, distribution levels, diversity of stock ownership and various
other qualification tests imposed under the Code, none of which will be reviewed
by us. Accordingly, no assurance can be given that the actual results of the
Company’s operations for any taxable year will satisfy the requirements for the
Company to maintain its qualification as a REIT.
This
Opinion was not intended or written to be used, and cannot be used, for
the
purpose of avoiding penalties that may be imposed on you by the IRS. This
opinion was written to support the Company’s marketing of the Series I
Depositary Shares. You should seek advice based on your particular circumstances
from an independent tax advisor.
The
Opinion is being furnished solely for your use in connection with your purchase
of the Series I Depositary Shares and, without our prior written consent, may
not be used or relied upon by you for any other purpose. The Opinion may not
be
used or relied upon by any person other than you without our prior written
consent.
Very
truly yours,
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▇▇▇▇▇▇▇
▇-▇
Form
of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
[Date]
Wachovia
Investment Holdings, LLC
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First
Industrial Realty Trust, Inc.
Ladies
and Gentlemen:
This
opinion is furnished to you pursuant to Section 7(B)(a) of that certain Purchase
Agreement dated November 8, 2005 (the “Purchase Agreement”) by and among
Wachovia Investment Holdings, LLC, a Delaware limited liability company (the
“Initial Purchaser”), First Industrial Realty Trust, Inc., a Maryland
corporation (the “Company”), and First Industrial, L.P., a Delaware limited
partnership (the “Operating Partnership”), relating to the issuance and sale to
the Initial Purchaser of ten million (10,000,000) Series I Depositary Shares
(the “Depositary Shares”), each representing 1/10,000th of a share of the
Company’s Series I Flexible Cumulative Redeemable Preferred Stock,
liquidation preference $250,000 per share (the “Preferred Shares”). Depositary
receipts evidencing the Depositary Shares (the “Depositary Receipts”) are to be
issued pursuant to a Deposit Agreement dated November 8, 2005 with respect
to
the Preferred Shares (the “Deposit Agreement”) between the Company and Equiserve
Trust Company, N.A., as Depositary (the “Depositary”).
We
have
acted as special Maryland counsel for the Company in connection with the
offering of the Preferred Shares. We have examined originals or copies of the
following:
(a) The
charter of the Company, and the charters of certain of the Company’s
subsidiaries, First Industrial Securities Corporation, a Maryland corporation
(“FISC”), First Industrial Indianapolis Corporation, a Maryland corporation
(“FIIC”), First Industrial Finance Corporation, a Maryland corporation (“FIFC”),
First Industrial Mortgage Corporation, a Maryland corporation (“FIMC”),
First Industrial Development Services, Inc., a Maryland corporation (“FIDSI”)
and First Industrial Pennsylvania Corporation, a Maryland corporation (“FIPC”
and, together with FISC, FIIC, FIFC, FIMC and FIDSI, collectively the “Corporate
Subsidiaries”);
(b) The
Bylaws of the Company and the Corporate Subsidiaries, each as amended to
date;
B-2-1
(c) Such
records of corporate proceedings of the Company and the Corporate Subsidiaries
as we deemed material;
(d) Certificates
of Status of recent date issued by the Maryland State Department of Assessments
and Taxation (the “SDAT”) with respect to the Company and the Corporate
Subsidiaries;
(e) The
Purchase Agreement;
(f) The
Deposit Agreement;
(g) The
Registration Rights Agreement;
(h) Certificates
of officers of the Company and the Corporate Subsidiaries, and the
representations and warranties contained in the Purchase Agreement;
and
(i) Such
other contracts, certificates, records and copies of executed originals, final
forms and draft forms of documents as we deemed necessary for the purpose of
this opinion.
In
rendering our opinion in numbered paragraph (1) below with respect to the good
standing of the Company and each of the Corporate Subsidiaries, we are relying
solely on a Certificate of Status issued by the SDAT with respect to the good
standing of each such entity.
In
rendering the following opinions, our examination of the law has been limited
to
the laws of the State of Maryland, and we express no opinion herein with respect
to the law of any jurisdiction other than the laws of the State of Maryland.
We
have assumed (i) the genuineness of all signatures, (ii) the capacity, power
and
authority of all parties to execute and deliver all applicable documents, (iii)
the truth and accuracy as to factual matters of all representations and
warranties contained in the Purchase Agreement and other documents and
certificates delivered by the various parties in connection with the offering
of
the Preferred Shares and Depositary Shares and the other transactions
contemplated in connection therewith, (iv) the authenticity of all documents
submitted to us as originals, (v) the conformity to originals of all documents
submitted to us as certified or attested copies or photocopies, (vi) the
authenticity of the originals of such certified or attested copies and
photocopies, (vii) the receipt of consideration in return for the issuance
and
sale of the Preferred Shares and Depositary Shares as provided in resolutions
of
the Board of Directors of the Company authorizing the issuance of the Preferred
Shares and Depositary Shares, and (viii) the receipt of consideration in return
for the issuance and sale of all outstanding shares of capital stock of the
Corporate Subsidiaries as provided in resolutions of the Boards of Directors
of
the Corporate Subsidiaries authorizing the issuance of such capital
stock.
As
used
herein, the terms “to our knowledge” and “known to us”, etc., shall mean to the
actual and conscious knowledge of the attorneys at our firm who have actively
worked on the offering of the Preferred Shares and Depositary Shares without
further investigation for purposes of this opinion.
Based
upon and subject to the foregoing and the other qualifications and limitations
herein contained, we are of the opinion that:
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(1) The
Company and each of the Corporate Subsidiaries has been duly incorporated and
is
validly existing as a corporation in good standing under the laws of the State
of Maryland.
(2) The
Company and each of the Corporate Subsidiaries has the 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, and the
Company has the corporate power and authority to enter into and perform its
obligations under the Purchase Agreement, the Deposit Agreement and the
Registration Rights Agreement.
(3) The
Company’s authorized capitalization consists of ten million (10,000,000) shares
of preferred stock, par value $.01 per share, one hundred million (100,000,000)
shares of common stock, par value $.01 per share, and sixty-five million
(65,000,000) shares of excess stock, par value $.01 per share. Other than the
Preferred Shares, all of the issued and outstanding shares of capital stock
of
the Company (the “Outstanding Shares”) have been duly authorized and, assuming
(i) the Outstanding Shares have been issued in accordance with previously issued
written opinions of this law firm relating thereto and all applicable
resolutions, and (ii) receipt of adequate consideration in exchange therefor,
all of the Outstanding Shares are validly issued, fully paid and nonassessable.
All one hundred (100) shares of the common stock of FISC subscribed for by
the
Company have been duly authorized and, assuming receipt of the consideration
as
provided in that certain Written Consent to Action of the Board of Directors
Without a Meeting dated August 14, 1995 (and the Offering Terms attached thereto
as Exhibit C),
are
validly issued, fully paid and nonassessable. All one million five hundred
thousand (1,500,000) shares of the 9-1/2% Series A Cumulative Preferred Stock,
$.01 par value per share, of FISC subscribed for by the Company have been duly
authorized and, assuming receipt of the consideration as provided in those
certain Minutes of Special Meeting of the Board of Directors held on November
13, 1995 (and the Offering Terms attached thereto as Exhibit C),
are
validly issued, fully paid and nonassessable. All one thousand (1,000) shares
of
the common stock of FIIC subscribed for by the Company have been duly authorized
and, assuming receipt of the consideration as provided in that certain Written
Consent to Action of the Board of Directors Without a Meeting dated
March 13, 1996 (and the Offering Terms attached thereto as Exhibit C),
are
validly issued, fully paid and nonassessable. All one hundred (100) shares
of
the common stock of FIFC subscribed for by the Company have been duly authorized
and, assuming receipt of the consideration as provided in that certain Written
Consent to Action of the Board of the Directors Without a Meeting dated
June 10, 1994 (and the Offering Terms attached thereto as Exhibit C),
are
validly issued, fully paid and nonassessable. All one thousand (1,000) shares
of
the common stock of FIMC subscribed for by the Company have been duly authorized
and, assuming receipt of the consideration as provided in that certain Written
Consent to Action of the Board of the Directors Without a Meeting dated December
14, 1995 (and the Offering Terms attached thereto as Exhibit C),
are
validly issued, fully paid and nonassessable. All one hundred (100) shares
of
the common stock of FIPC subscribed for by the Company have been duly authorized
and, assuming receipt of the consideration as provided in that certain Written
Consent to Action of the Board of Directors Without a Meeting dated
December 22, 1994 (and the Offering Terms attached thereto as Exhibit C),
are
validly issued, fully paid and nonassessable. All five hundred (500) shares
of
the voting common stock of FIDSI and all nine hundred forty-four thousand nine
hundred thirty-eight (944,938) shares of non-voting common stock of FIDSI
subscribed for by the Operating Partnership have been duly authorized and,
assuming receipt of the consideration as provided in that certain Written
Consent of the Board of Directors For Action In Lieu of an Organizational
Meeting dated as of May 22, 1997 (and the Subscription Agreement of same date
between the Company and FIDSI), are validly issued, fully paid and
nonassessable.
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(4) Each
of
the Preferred Shares has been duly authorized and assuming receipt of the
consideration as contemplated by the authorizing resolutions is validly issued,
fully paid and nonassessable.
(5) The
terms
of the Preferred Shares conform in all material respects to all statements
and
descriptions related thereto contained in the Articles Supplementary. The form
of certificate representing the Preferred Shares and, to the extent Maryland
law
applies, the Depositary Receipts, are in due and proper form under, and comply
in all material respects with, all applicable Maryland legal
requirements.
(6) The
execution and delivery of each of the Purchase Agreement, the Articles
Supplementary, the Deposit Agreement and the Registration Rights Agreement
and
the performance by the Company of its obligations thereunder and, with respect
to the Purchase Agreement, the performance by the Company of the obligations
thereunder in its capacity as general partner of the Operating Partnership,
have
been duly and validly authorized by the Company on behalf of itself and, with
respect to the Purchase Agreement, the Operating Partnership.
(7) The
execution and delivery of the Purchase Agreement, the Articles Supplementary,
the Deposit Agreement and the Registration Rights Agreement, the performance
of
the obligations and the consummation of the transactions set forth therein
by
the Company will not require, to our knowledge, any consent, approval,
authorization or other order of any Maryland court, regulatory body,
administrative agency or other Maryland governmental body (except as such may
be
required under the Securities Act of 1933 or other federal or state securities
laws) and did not and do not conflict with or constitute a breach or a violation
of or default under: (1) the charter or bylaws, as the case may be, of the
Company; or (2) except with respect to Maryland securities or blue sky laws,
any
applicable Maryland law, rule or administrative regulation or any Maryland
order
or administrative or court decree known to us, except in each case for
conflicts, breaches, violations or defaults that in the aggregate would not
have
a material adverse effect on the issuance and sale of the Depositary Shares
or
the performance by the Company of the obligations set forth in the Purchase
Agreement, the Deposit Agreement and the Registration Rights
Agreement.
(8) The
Company was authorized, as general partner of the Operating Partnership, to
amend and restate the Operating Partnership’s Eighth Amended and Restated
Limited Partnership Agreement, as amended to the date hereof (the “Operating
Partnership Agreement”) by and among the Company and those limited partners
identified in the Operating Partnership Agreement.
(9) FISC
was
duly authorized by written consent of its board of directors dated
October 19, 1995 to enter into that certain Limited Partnership Agreement
of First Industrial Securities, L.P.
B-2-4
(10) FIIC
was
authorized by written consent of its board of directors dated October 18, 1996
to enter into that certain Limited Partnership Agreement of First Industrial
Indianapolis, L.P.
(11) FIFC
was
duly authorized by written consent of its sole director dated June 22, 1994
to
enter into that certain Limited Partnership Agreement by and between FIFC and
the Operating Partnership.
(12) FIMC
was
duly authorized by written consent of its board of directors dated December
27,
1995 to enter into that certain Limited Partnership Agreement by and between
FIMC and the Operating Partnership.
(13) FIPC
was
authorized by written consent of its board of directors dated January 26,
1996 to enter into that certain Limited Partnership Agreement of First
Industrial Pennsylvania, L.P. (the “Pennsylvania Partnership Agreement”) and by
written consent of its board of directors dated November 17, 1995 to
enter
into that certain First Amendment to the Pennsylvania Partnership
Agreement.
These
opinions are based upon currently existing Maryland statutes, rules and
regulations and on Maryland judicial decisions and are rendered as of the date
hereof, and we disclaim any obligation to advise you of any change in any of
the
foregoing sources of law or subsequent developments in law or changes in facts
or circumstances which might affect any matters or opinions set forth
herein.
The
opinions set forth herein are rendered solely for your use in connection with
the issuance of the Preferred Shares and may not be relied upon by you for
any
other purpose, or furnished to, quoted to, or relied upon by, in whole or in
part, any other person, firm or corporation for any purpose, without our prior
written consent. Notwithstanding the preceding sentence, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP may rely on the opinions set forth herein in providing its opinions
rendered in connection with the issuance of the Preferred Shares.
Very
truly yours,
▇-▇-▇
▇▇▇▇▇▇▇
▇-▇
Form
of Opinion of Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP
[Date]
Wachovia
Investment Holdings, LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: First
Industrial Realty Trust, Inc.
Ladies
and Gentlemen:
This
opinion is being furnished to you pursuant to Section 5(A)
of the
Purchase Agreement dated November
8, 2005
(the
“Purchase Agreement”) by and among Wachovia Capital Investments, Inc. (the
“Initial Purchaser”), First Industrial, L.P. (the “Operating Partnership”) and
First Industrial Realty Trust, Inc. (the “Company”), relating to the issuance by
the Company, and sale to the Initial Purchaser, of 10,000,000
Series I Depositary Shares (the “Series I
Shares”), each representing 1/10,000th
of a
share of Series I
Flexible
Cumulative Redeemable Preferred Stock of the Company, with a liquidation
preference equivalent to $25.00
per
Series I
Share.
The
Series
I
Shares
are to
be issued under a certain Deposit
Agreement pertaining to the Series I
Shares
between the Company,
EquiServe, Inc.
and
EquiServe Trust Company, N.A., as Depositary, pursuant to the Purchase
Agreement.
We
have
acted as special real estate counsel to the Operating Partnership, First
Industrial Mortgage Partnership, L.P.,
a
Delaware limited partnership (“FIMP”), First Industrial Pennsylvania, L.P., a
Delaware limited partnership (“FIP”), First Industrial Financing Partnership,
L.P., a Delaware limited partnership (“FIFP”), First Industrial Securities,
L.P., a Delaware limited partnership (“FISP”), First Industrial Harrisburg,
L.P., a Delaware limited partnership (“FIHP”), and First Industrial
Indianapolis, L.P., a Delaware limited partnership (“FIIP”), in their
acquisitions of various real properties. We have also acted as special real
estate counsel to the Company, the Operating Partnership, FIMP, FIP, FIFP,
FISP,
FIHP and FIIP in connection with that certain Fourth
Amended
and Restated Unsecured Revolving Credit Facility, dated as of August
23, 2005,
among
the Operating Partnership, as Borrower, the Company, as Guarantor and General
Partner, JPMorgan
Chase Bank, N.A
as
Administrative Agent, JPMorgan
Securities
Inc. as
Lead Arranger and Sole Book Runner,
Wachovia
Bank, National Association
as
Syndication Agent, Commerzbank
AG, PNC
Bank,
National Association and ▇▇▇▇▇ Fargo
Bank,
N.A. as Documentation Agents,
AmSouth
Bank, The Bank of New York, The Bank of Nova Scotia, Bank of Montreal and
SunTrust Bank as Co-Agents, and various financial institutions party thereto
as
lenders
(such
indebtedness is hereinafter referred to as the “Credit Documents”). Furthermore,
we act as special real estate counsel to both FR Acquisitions, Inc., a Maryland
corporation and a wholly-owned subsidiary of the
Company
(“FRA”), and the Operating Partnership, in the preparation, negotiation and
execution of various pending agreements of purchase and sale into which FRA
has
entered for the purchase of certain real properties (collectively, the “Pending
Contracts”).
B-3-1
The
opinions to be expressed herein are subject to the following specific
qualifications and limitations: Our opinion excludes any matters related to
the
laws of any state other than the State of Illinois, specifically including,
but
not limited to, Delaware, Maryland and New York. We are rendering no opinion
on
any matters of federal securities law, or the securities laws of any state,
including Illinois; nor are we rendering any opinion on any matters of state,
federal or local taxation. Additionally, we have not served as corporate or
partnership counsel for any of the entities named in the second paragraph of
this opinion, nor do we serve as corporate counsel for any of the corporate
general partners of any of the partnership entities named in the second
paragraph of this opinion.
Based
on
the foregoing, and subject to qualifications and limitations set forth above
and
elsewhere in this opinion, we are of the opinion that:
(i) To
our
knowledge, none of the Company, FRA, the Operating Partnership, FIMP, FIP,
FIFP,
FISP, FIHP and FIIP, nor any of the Maryland corporations that are each the
sole
general partner of one of FIMP, FIP, FIFP, FISP, FIHP and FIIP, respectively
(collectively, the “Corporate GPs”) is in violation of, or in default in
connection with the performance or observance of any obligation, agreement,
covenant or condition contained in, any or all of (a) the Credit Documents
and
(b) the Pending Contracts, except in each case for violations or defaults that,
in the aggregate, are not reasonably expected to have a Material Adverse Effect
(as defined in the Purchase Agreement).
(ii) The
execution and delivery of the Purchase Agreement, and the performance of the
obligations and the consummation of the transactions set forth therein by the
Company and the Operating Partnership, did not and do not conflict with, or
constitute a breach or violation of, or a default under (a) any or all of the
Credit Documents and the Pending Contracts; (b) any applicable law, rule or
administrative regulation of the federal government (or agency thereof) of
the
United States of America; or (c) any order or administrative or court decree
issued to, or against, or concerning, any or all of the Company, FRA, the
Operating Partnership, FIMP, FIP, FIFP, FISP, FIHP, FIIP and the Corporate
GPs
and about which, in the cases of clauses (b) and (c) above in this paragraph
(ii), we are aware (it being understood, however, that the opinions in clauses
(b) and (c) above are made without any independent investigation); except in
each case for conflicts, breaches, violations or defaults that, in the
aggregate, would not have a Material Adverse Effect.
(iii) To
our
knowledge, there are no legal or governmental proceedings pending or threatened
that do, or are likely to, have a Material Adverse Effect.
B-3-2
(iv) The
information concerning
mortgage loans payable set
forth
in the Company’s Annual Report on Form 10-K for the year ended December 31,
2004
under
Item 7 “Management’s Discussion and Analysis of Financial Condition and Results
of Operations-Liquidity
and Capital Resources,”
to the
extent that such information constitutes statements of law, descriptions of
statutes, summaries of principal financing terms of Credit Documents or legal
conclusions, has been reviewed by us, and is correct in all material respects,
and presents fairly the information disclosed therein.
Our
opinions set forth herein are based upon the current status of Illinois law.
Whenever our opinion is indicated to be “to our knowledge” or “to the best of
our knowledge,” it should be understood that, during the course of our
representation (as special real estate counsel) of the Company, the Operating
Partnership, FRA, FIMP, FIP, FIFP, FISP, FIHP, FIIP and the Corporate GPs,
we
have not undertaken any independent investigation to determine the existence
or
absence of facts. The words “to our knowledge,” and similar language used in
certain of the opinions expressed above, are limited to the knowledge of those
lawyers within our firm who have had primary responsibility for our firm’s work
on the transactions that are the subject of the Credit Documents and the Pending
Contracts. In addition, in connection with our opinion expressed in paragraph
(i) above, we wish to advise you that we are not involved in the day-to-day
conduct of the business of any or all of the Company, the Partnership
Subsidiaries and the Corporate Subsidiaries (as those latter two terms are
defined in the Purchase Agreement) and, accordingly, there may be either or
both
facts and contracts of which we are not aware, but which might cause us to
alter
the statements made in such paragraph. We are making no undertaking to hereafter
advise you of any changes in factual or legal matters that might contradict
the
opinions set forth herein.
The
foregoing opinions are limited to the matters expressly stated herein, and
are
made solely for the benefit of the Initial Purchaser and the firms of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, which latter firms may rely
on this opinion for purposes of the issuance of their opinions to the Initial
Purchaser pursuant to the Purchase Agreement. No other party shall be entitled
to rely on this opinion, and it may not be disclosed, circulated, disseminated
or quoted from, without the prior written consent of this firm.
Very
truly yours,
BARACK
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP
By:_____________________________
B-3-3