SALES AGREEMENT

 

 

 

 

                                                                     Exhibit 1.1

 

 

 

                                                                  EXECUTION COPY

 

 

 

                          CONTROLLED EQUITY OFFERINGSM

 

                                  SALES AGREEMENT

 

 

September 16, 2004

 

CANTOR FITZGERALD & CO.

135 East 57th Street

New York, NY 10022

 

Dear Sirs/Ladies:

 

     First Industrial Realty Trust, Inc., a Maryland corporation (the "Company")

and First Industrial, L.P., a Delaware limited partnership (the "Operating

Partnership"), each confirm its agreement (this "Agreement") with Cantor

Fitzgerald & Co. ("CF&Co."), as follows:

 

     1. Issuance and Sale of Shares. The Company agrees that, from time to time

during the term of this Agreement, on the terms and subject to the conditions

set forth herein, it may issue and sell through CF&Co., acting as agent and/or

principal, up to 3,900,000 shares ("Shares") of the Company's common stock,

$0.01 par value ("Common Stock"); provided, however, that in no event shall the

aggregate market value of the Shares sold in an "at the market" offering (as

defined in Section 3 below) exceed 10% of the aggregate market value of the

Company's outstanding voting stock held by non-affiliates of the Company

(calculated as of a date within 60 days prior to the date of filing of the

Registration Statement). Notwithstanding anything to the contrary contained

herein and provided that CF&Co. complies with the Placement Notice (as herein

defined), the parties hereto agree that compliance with the limitations set

forth in this Section 1 on the number and aggregate market value of Shares

issued and sold under this Agreement shall be the sole responsibility of the

Company, and CF&Co. shall have no obligation in connection with such compliance.

The issuance and sale of Shares through CF&Co. will be effected pursuant to the

Registration Statement (as defined below) filed by the Company and declared

effective by the Securities and Exchange Commission (the "Commission").

 

     The Company and the Operating Partnership have prepared and filed with the

Commission in accordance with the provisions of Securities Act of 1933, as

amended, and the rules and regulations of the Commission thereunder

(collectively, the "Securities Act"), a registration statement on Form S-3 (File

No. 333-117842), relating to certain securities (the "Shelf Securities") to be

issued from time to time by the Company or the Operating Partnership, as the

case may be. The Company also has filed with, or proposes to file with, the

Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a

prospectus supplement specifically relating to the Shares (a "Prospectus

Supplement"). The registration statement as amended to the date of this

Agreement and including any registration statement filed pursuant to Rule 462(b)

under the Securities Act (a "Rule 462(b) Registration Statement") is hereinafter

referred to as the "Registration Statement," and the related prospectus covering

the Shelf Securities in the form first used to confirm sales of the Shares is

hereinafter referred to as the "Base Prospectus." The Base Prospectus as

supplemented by any applicable Prospectus Supplement specifically relating to

the Shares in the form first used to confirm sales of the Shares is hereinafter

referred to as the "Prospectus." Any reference in this Agreement to the

Registration Statement, the Base Prospectus, any preliminary form of Prospectus

(a "preliminary prospectus") previously filed with the Commission pursuant to

Rule 424 or

 

 

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the Prospectus shall be deemed to refer to and include the documents

incorporated by reference therein pursuant to Item 12 of Form S-3 under the

Securities Act which were filed under the Securities Exchange Act of 1934, as

amended, and the rules and regulations of the Commission thereunder

(collectively, the "Exchange Act") on or before the date of this Agreement or

the date of the Registration Statement, the Base Prospectus, any preliminary

prospectus or the Prospectus, as the case may be; and any reference to "amend,"

"amendment" or "supplement" with respect to the Registration Statement, the Base

Prospectus, any preliminary prospectus or the Prospectus shall be deemed to

refer to and include any documents filed under the Exchange Act after the date

of this Agreement, or the date of the Registration Statement, the Base

Prospectus, any preliminary prospectus or the Prospectus, as the case may be,

which are deemed to be incorporated by reference therein. For purposes of this

Agreement, all references to the Registration Statement, the Prospectus, or to

any amendment or supplement thereto shall be deemed to include any copy filed

with the Commission pursuant to its Electronic Data Gathering Analysis and

Retrieval System ("EDGAR").

 

     2. Placements. Each time that the Company wishes to issue and sell Shares

hereunder (each, a "Placement"), it will notify CF&Co. of the proposed terms of

such Placement. If CF&Co. wishes to accept such proposed terms (which it may

decline to do for any reason in its sole discretion) or, following discussions

with the Company, wishes to accept amended terms, CF&Co. will, prior to 4:30

p.m., New York time, on the Business Day next following the Business Day that

the notice is received by CF&Co., issue to the Company a written notice (a

"Placement Notice"), the form of which is attached hereto as Schedule 1, setting

forth the terms that CF&Co. is willing to accept, including without limitation

the number of Shares ("Placement Shares") to be issued, the manner(s) in which

sales are to be made, the date or dates on which such sales are anticipated to

be made, any minimum price below which sales may not be made, and the capacity

in which CF&Co. may act in selling Shares hereunder (as principal, agent or

both). The amount of compensation to be paid by the Company to CF&Co. shall be

two percent (2%) of the gross proceeds of any sale of Shares hereunder. The

terms set forth in a Placement Notice will not be binding on the Company or

CF&Co. unless and until the Company delivers written notice of its acceptance of

all of the terms of such Placement Notice (an "Acceptance"), the form of which

is included in Schedule 1 hereto; provided, however, that neither the Company

nor CF&Co. will be bound by the terms of a Placement Notice unless the Company

delivers to CF&Co. an Acceptance with respect thereto prior to 4:30 p.m. (New

York time) on the Business Day (as defined below) following the Business Day on

which such Placement Notice is delivered to the Company. It is expressly

acknowledged and agreed that neither the Company nor CF&Co. will have any

obligation whatsoever with respect to a Placement or any Placement Shares unless

and until CF&Co. delivers a Placement Notice to the Company and the Company

accepts such Placement Notice by means of an Acceptance, and then only upon the

terms specified therein and herein. In the event of a conflict between the terms

of this Agreement and the terms of a Placement Notice, the terms of the

Placement Notice will control.

 

     3. Sale of Placement Shares by CF&Co. Subject to the terms and conditions

of this Agreement, provided that an Acceptance has been delivered to CF&Co. and

unless the sale of the Placement Shares described therein has been suspended or

otherwise terminated in accordance with the terms of this Agreement, CF&Co., for

the period specified in the Placement Notice, will use its commercially

reasonable efforts consistent with its normal trading and sales practices and

the Placement Notice to sell such Placement Shares up to the amount specified

in, and otherwise in accordance with the terms of, such Placement Notice. CF&Co.

will provide written confirmation to the Company no later than the opening of

the Trading Day next following the Trading Day on which it has made sales of

Placement Shares hereunder setting forth the number of Placement Shares sold on

such day, the compensation payable by the Company to CF&Co. with respect to such

sales, and the Net Proceeds (as defined below) payable to the Company, with an

itemization of the deductions made by CF&Co. (as set forth in Section 5(a)) from

the gross proceeds that it receives from such sales. After consultation to the

Company and subject to the terms of the Placement Notice, CF&Co. may sell

Placement Shares by any

 

 

 

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method permitted by law deemed to be an "at the market" offering as defined in

Rule 415 of the Securities Act, including without limitation sales made directly

on the New York Stock Exchange (the "Exchange"), on any other existing trading

market for the Common Stock or to or through a market maker. After consultation

with the Company and subject to the terms of the Placement Notice, CF&Co. may

also sell Placement Shares in privately negotiated transactions. The Company

acknowledges and agrees that (i) there can be no assurance that CF&Co. will be

successful in selling Placement Shares, and (ii) CF&Co. will incur no liability

or obligation to the Company if it does not sell Placement Shares for any reason

other than a failure by CF&Co. to use its commercially reasonable efforts

consistent with its normal trading and sales practices and the Placement Notice

to sell such Placement Shares as required under this Section 3. For the purposes

hereof, "Trading Day" means any day on which securities are purchased and sold

on the principal market on which the Common Stock is listed or quoted.

 

     4. Suspension of Sales. The Company or CF&Co. may, upon notice to the other

party in writing or by telephone (confirmed immediately by verifiable facsimile

transmission), suspend any sale of Placement Shares; provided, however, that

such suspension shall not affect or impair either party's obligations with

respect to any Placement Shares sold hereunder prior to the receipt of such

notice. Except as set forth in Section 12, the parties agree that no such notice

shall be effective against the other party unless it is made to one of the

individuals named on Schedule 2 hereto, as such Schedule may be amended from

time to time.

 

     5. Settlement.

 

      (a) Settlement of Placement Shares. Unless otherwise specified in the

applicable Placement Notice, settlement for sales of Placement Shares will occur

on the third (3rd) Business Day (as herein defined) (or such earlier day as is

industry practice for regular-way trading) following the date on which such

sales are made (each a "Settlement Date"). For purposes of this Agreement,

"Business Day" shall mean any day on which the Exchange and commercial banks in

the city of New York are open for business. The amount of proceeds to be

delivered to the Company on a Settlement Date against the receipt of the

Placement Shares sold ("Net Proceeds") will be equal to the aggregate sales

price at which such Placement Shares were sold plus payments to be made pursuant

to the last sentence of Section 6(i), if any, after deduction for (i) CF&Co.'s

commission or underwriting discount for such sales payable by the Company

pursuant to Section 2 hereof, (ii) any other amounts due and payable by the

Company to CF&Co. hereunder pursuant to Section 6(i) hereof, and (iii) any

transaction fees imposed by any governmental or self-regulatory organization in

respect of such sales.

 

     (b) Delivery of Shares. On or before each Settlement Date, the Company

will, or will cause its transfer agent to, electronically transfer the Placement

Shares being sold by crediting CF&Co.'s or its designee's account at The

Depository Trust Company through its Deposit Withdrawal Agent Commission System

or by such other means of delivery as may be mutually agreed upon by the parties

hereto and, upon receipt of such Placement Shares, which in all cases shall be

freely tradable, transferable, registered shares in good deliverable form,

CF&Co. will deliver the related Net Proceeds in same day funds delivered to an

account designated by the Company prior to the Settlement Date. If the Company

defaults in its obligation to deliver Placement Shares on a Settlement Date, the

Company agrees that, in addition to and in no way limiting the rights and

obligations set forth in Section 8(a) hereto, it will (i) hold CF&Co. harmless

against any loss, claim, damage, or expense (including reasonable out-of-pocket

fees and expenses of external counsel), as

 

 

 

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incurred, arising out of or in connection with such default by the Company and

(ii) pay to CF&Co. any underwriting commission and discount, to which it would

otherwise have been entitled absent such default. If CF&Co. defaults in its

obligation to deliver Net Proceeds on a Settlement Date, CF&Co. agrees that, in

addition to and in no way limiting the rights and obligations set forth in

Section 8(b) hereto, it will (i) hold the Company harmless against any loss,

claim, damage, or expense (including reasonable out-of-pocket fees and expenses

of external counsel), as incurred, arising out of or in connection with such

default by the CF&Co. and (ii) pay to the Company such Net Proceeds to which it

would otherwise have been entitled absent such default.

 

     6. Covenants of the Company. The Company and the Operating Partnership

severally covenant and agree with CF&Co. that:

 

     (a) In respect of the offering of the Shares, the Company will (i) prepare

a Prospectus Supplement setting forth the number of Shares to be sold through

CF&Co. and the compensation payable by the Company to CF&Co., and such other

information as the Company deems appropriate in connection with the offering of

the Shares, (ii) file the Prospectus Supplement in a form approved by CF&Co.

pursuant to Rule 424 under the Securities Act within the applicable time period

prescribed by such rule for such filing (each and every filing under Rule 424, a

"Filing Date"), (iii) furnish to CF&Co. at the time of filing thereof a copy of

any document that upon filing is deemed to be incorporated by reference in the

Registration Statement or Prospectus, except for documents filed through EDGAR

and (iv) furnish copies of the Prospectus to CF&Co. as CF&Co. shall specify in

New York City prior to 10:00 A.M., New York City time as soon as practicable

after the date of this Agreement in such quantities as CF&Co. may reasonably

request;

 

     (b) At any time when the Prospectus is required to be delivered under the

Securities Act or the Exchange Act in connection with sales of Shares, the

Company will advise CF&Co. promptly and, if requested by CF&Co., confirm such

advice in writing, of (i) the effectiveness of any amendment to the Registration

Statement (ii) the transmittal to the Commission for filing of any Prospectus or

other supplement or amendment to the Prospectus to be filed pursuant to the

Securities Act, (iii) the receipt of any comments from the Commission relating

to the Registration Statement, any preliminary prospectus, the Prospectus or any

of the transactions contemplated by this Agreement, (iv) any request by the

Commission for post-effective amendments to the Registration Statement or

amendments or supplements to the Prospectus or for additional information, (v)

the issuance by the Commission of any stop order suspending the effectiveness of

the Registration Statement or of the suspension of qualification of the Shares

for offering or sale in any jurisdiction, or the initiation of any proceeding

for such purposes, and (vi) the happening of any event which makes any statement

of a material fact made in the Registration Statement or the Prospectus untrue

or which requires the making of any additions to or changes in the Registration

Statement or the Prospectus in order to make the statements therein not

misleading. At any time when the Prospectus is required to be delivered under

the Securities Act or the Exchange Act in connection with sales of Shares, the

Company will make every reasonable effort to prevent the issuance of any stop

order and, if at any time the Commission shall issue any stop order suspending

the effectiveness of the Registration Statement, the Company will make every

reasonable effort to obtain the withdrawal or lifting of such order at the

earliest possible time;

 

     (c) The Company will furnish to CF&Co. without charge, such number of

conformed copies of the Registration Statement as first filed with the

Commission and of each amendment to it, including all exhibits and documents

incorporated by reference except for exhibits and documents filed through EDGAR,

as CF&Co. may reasonably request. If applicable, the copies of the Registration

Statement and each amendment thereto furnished to CF&Co. will be identical to

the electronically transmitted copies thereof filed with the Commission pursuant

to EDGAR, except to the extent permitted by Regulation S-T;

 

     (d) At any time when the Prospectus is required to be delivered under the

Securities Act or the Exchange Act in connection with sales of Shares, not to

file any amendment to the Registration Statement or any Rule 462(b) Registration

Statement or to make any amendment or supplement to the Prospectus of which

CF&Co. shall not previously have been advised or to which CF&Co. or counsel for

CF&Co. shall reasonably object (provided, however, that the failure of CF&Co. to

make such objection

 

 

 

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shall not relieve the Company of any obligation or liability hereunder, or

affect CF&Co.'s right to rely on the representations and warranties made by the

Company in this Agreement); and to prepare and file with the Commission,

promptly upon CF&Co.'s reasonable request, any amendment to the Registration

Statement, Rule 462(b) Registration Statement or amendment or supplement to the

Prospectus which, in the opinion of counsel for CF&Co., may be necessary in

connection with the distribution of the Shares by CF&Co., and to use its best

efforts to cause the same to become promptly effective. If applicable, the

Prospectus and any amendments or supplements thereto furnished to CF&Co. will be

identical to the electronically transmitted copies thereof filed with the

Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T;

 

     (e) If, at any time when the Prospectus is required to be delivered under

the Securities Act or the Exchange Act in connection with sales of Shares, any

event shall occur as a result of which, in the opinion of counsel for CF&Co., it

becomes necessary to amend or supplement the Prospectus in order to make the

statements therein, in the light of the circumstances existing when the

Prospectus is delivered to a purchaser, not misleading, or if it is necessary to

amend or supplement the Prospectus to comply with any law, the Company will

promptly notify CF&Co. to suspend the offering of Shares and, if the Company

wishes to proceed with the offering, the Company will forthwith prepare and file

with the Commission an appropriate amendment or supplement to the Prospectus (in

form and substance reasonably satisfactory to counsel for CF&Co.) so that the

statements in the Prospectus, as so amended or supplemented, will not contain an

untrue statement of a material fact or omit to state a material fact necessary

in order to make the statements therein, in the light of the circumstances

existing when it is so delivered, not misleading, or so that the Prospectus will

comply with any law, and to furnish to CF&Co. as CF&Co. shall specify, such

number of copies thereof as CF&Co. may reasonably request; provided, however,

that the failure of CF&Co. to make such request shall not relieve the Company of

any obligation or liability hereunder, or affect CF&Co.'s right to rely on the

representations and warranties made by the Company in this Agreement;

 

     (f) The Company will use its best efforts, in cooperation with CF&Co., to

qualify, register or perfect exemptions for the Shares for offer and sale by

CF&Co. under the applicable state securities, Blue Sky and real estate

syndication laws of such jurisdictions as CF&Co. may reasonably request;

provided, however, the Company will not be required to qualify as a foreign

corporation, file a general consent to service of process in any such

jurisdiction, subject itself to taxation in respect of doing business in any

jurisdiction in which it is not otherwise so subject, or provide any undertaking

or make any change in its charter or by-laws that the Board of Directors of the

Company reasonably determines to be contrary to the best interests of the

Company and its stockholders. In each jurisdiction in which the Shares have been

so qualified or registered, the Company will use all reasonable efforts to file

such statements and reports as may be required by the laws of such jurisdiction,

to continue such qualification or registration in effect for so long a period as

CF&Co. may reasonably request for the distribution of the Shares and to file

such consents to service of process or other documents as may be necessary in

order to effect such qualification or registration; provided, however, the

Company will not be required to qualify as a foreign corporation, file a general

consent to service of process in any such jurisdiction, subject itself to

taxation in respect of doing business in any jurisdiction in which it is not

otherwise so subject, or provide any undertaking or make any change in its

charter or by-laws that the Board of Directors of the Company reasonably

determines to be contrary to the best interests of the Company and its

stockholders;

 

     (g) To make generally available to the Company's stockholders as soon as

reasonably practicable but not later than sixty days after the close of the

period covered thereby (90 days in the event the close of such period is the

close of the Company's fiscal year), an earnings statement (in form complying

with the provisions of Rule 158 of the Securities Act) covering a period of at

least twelve months after the effective date of the Registration Statement (but

in no event commencing later than 90 days after such date) which shall satisfy

the provisions of Section 11(a) of the Securities Act, and, if

 

 

 

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<PAGE>

 

required by Rule 158 of the Securities Act, to file such statement as an exhibit

to the next periodic report required to be filed by the Company under the

Exchange Act covering the period when such earnings statement is released;

 

     (h) During the period when the Prospectus is required to be delivered under

the Securities Act or the Exchange Act in connection with sales of the Shares,

to file all documents required to be filed by it with the Commission pursuant to

Section 13, 14 or 15 of the Exchange Act within the time periods required by the

Exchange Act and will also furnish copies of such documents and the Prospectus

to the Exchange or any other exchange or market on which sales of the Shares may

be made to the extent required by the Exchange or such exchange or market;

 

     (i) The Company will pay all costs, expenses, fees and taxes incident to

(i) the preparation, printing, filing and distribution under the Securities Act

of the Registration Statement and any amendment thereto (including financial

statements and exhibits), the Prospectus and all amendments and supplements to

any of them prior to or during the period specified in Section 6(e), (ii) the

printing and delivery of this Agreement and any Blue Sky Memorandum, (iii) the

qualification or registration of the Shares for offer and sale under the state

securities, Blue Sky or real estate syndication laws of the several states in

accordance with Section 6(f) hereof, (iv) the fee of and the filings and

clearance, if any, with the National Association of Securities Dealers, Inc.

(the "NASD") in connection with the offering, (v) furnishing such copies of the

Registration Statement, the preliminary prospectus, the Prospectus and all

amendments and supplements thereto as may be requested for use in connection

with the offering or sale of the Shares by CF&Co., (vi) the costs and charges of

any transfer agent or registrar, (vii) the preparation, issuance and delivery of

certificates for the Shares to CF&Co., (viii) any transfer taxes imposed on the

sale by the Company of the Shares to CF&Co., (ix) the fees and disbursements of

the Company's counsel, and (x) any listing or other fees in connection with the

listing of the Shares on the Exchange. CF&Co., (i) upon the sale and settlement

of at least half of the Shares will reimburse to the Company all fees and

expenses payable to the Company's accountants incident to the issuance of the

Comfort Letters (as hereinafter defined) issued as of such date and (ii) the

sale and settlement of the remainder of the Shares will reimburse to the Company

all fees and expenses, payable to the Company's accountants incident to the

issuance of the Comfort Letters issued pursuant to this Agreement that have not

been previously reimbursed;

 

     (j) The Company will use its best efforts to do and perform all things

required to be done and performed under this Agreement by the Company prior to

any Settlement Date and to satisfy all conditions precedent to any delivery of

the Shares;

 

     (k) The Company will use the net proceeds received by it from the sale of

the Shares in the manner specified in the Prospectus under "Use of Proceeds";

 

     (l) The Company will use its best efforts to continue to qualify as a real

estate investment trust ("REIT") under Sections 856 through 860 of the Internal

Revenue Code of 1986, as amended (the "Code"), unless the Company's board of

trustees determines that it is no longer in the best interests of the Company to

be so qualified;

 

     (m) During the period beginning on the date on which any Acceptance is

delivered to CF&Co. hereunder and ending on the final Settlement Date with

respect to Shares sold pursuant to such Placement Notice, the Company will not,

at any time, directly or indirectly, (i) take any action intended, or which

might reasonably be expected to cause or result in, or which will constitute

stabilization of the price of the Common Stock to facilitate the sale or resale

of any Shares in violation of the Securities Act or (ii) sell, bid for, or

purchase the Shares, or pay anyone any compensation for soliciting purchases of

the Shares other than CF&Co.,

 

 

 

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     (n) The Company will cooperate with CF&Co. and use commercially reasonable

efforts to permit the Shares to be eligible for clearance and settlement through

the facilities of DTC;

 

     (o) The Company will use commercially reasonable efforts to cause the

Shares to be listed on the Exchange;

 

     (p) Without the written consent of CF&Co., the Company will not, directly

or indirectly, offer to sell, sell, contract to sell, grant any option to sell

or otherwise dispose of any shares of Common Stock (other than the Shares

offered pursuant to the provisions of this Agreement), or securities convertible

into or exchangeable for Common Stock, warrants or any rights to purchase or

acquire, Common Stock during the period beginning on the date on which any

Acceptance is delivered to CF&Co. hereunder and ending on the fifth (5th)

Trading Day immediately following the final Settlement Date with respect to

Shares sold pursuant to such Placement Notice provided, however, that such

restrictions will not be required in connection with the Company's issuance or

sale of (i) Common Stock, options to purchase shares of Common Stock or Common

Stock issuable upon the exercise of options, pursuant to any employee or

director stock option or benefits plan, stock ownership plan or dividend

reinvestment plan (but not shares subject to a waiver to exceed plan limits in

its stock purchase plan) of the Company now in effect (ii) Common Stock issuable

upon the redemption or conversion of limited partnership units of the Operating

Partnership and (iii) except as disclosed in writing to CF&Co., Common Stock

issuable upon conversion of securities or the exercise of warrants, options or

other rights in effect or outstanding;

 

     (q) The Company will, during the period beginning on the date on which any

Acceptance is delivered to CF&Co. hereunder and ending on the final Settlement

Date with respect to Shares sold pursuant to such Placement Notice, advise

CF&Co. promptly after it shall have received notice or obtained knowledge

thereof, of any information or fact that would alter or affect any opinion,

certificate, letter or other document provided to CF&Co. pursuant to this

Agreement;

 

     (r) The Company will cooperate with any due diligence review conducted by

CF&Co. or its agents, including, without limitation, providing information and

making available documents and senior corporate officers, as CF&Co. may

reasonably request; provided, however, that the Company shall be required to

make available documents and senior corporate officers only (i) at the Company's

principal offices and (ii) during the Company's ordinary business hours;

 

     (s) On the date hereof and each time that (i) the Registration Statement

shall be amended or the Prospectus supplemented in connection with the sale of

Shares (other than a supplement filed pursuant Rule 424(b) under the Securities

Act that contains solely the information required pursuant to Section 6(a)

above) or (ii) there is filed with the Commission any Annual Report on Form 10-K

or 10-K/A, any Quarterly Report on Form 10-Q or 10-Q/A and any Current Report on

Form 8-K that contains audited, unaudited or pro forma financial statements, the

Company shall furnish or cause to be furnished to CF&Co. forthwith a certificate

dated the date of filing with the Commission of such amendment, supplement, or

other document, or the date hereof, as the case may be, in the form attached

hereto as Exhibit 6(s).

 

     (t) On the date hereof the Company shall furnish or cause to be furnished

forthwith to CF&Co. a written opinion or opinions of Cahill Gordon & Reindel

LLP, counsel to the Company ("Company Counsel"), McGuireWoods LLP, special

Maryland counsel to the Company, and Barack Ferrazzano Kirschbaum Perlman &

Nagelberg LLP, special Illinois counsel to the Company, or other counsels

satisfactory to CF&Co., dated the date hereof in form and substance satisfactory

to CF&Co. and its counsel, substantially the forms attached hereto as Exhibits

6(t)(1), 6(t)(2) and 6(t)(3), respectively; and each time that (i) the

Registration Statement is amended or the Prospectus supplemented in connection

with the sale of Shares (other than a supplement filed pursuant Rule 424(b)

under the

 

 

 

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Securities Act that contains solely the information required pursuant to Section

6(a) above) or (ii) there is filed with the Commission any Annual Report on Form

10-K or 10-K/A (other than a 10-K/A to include the information required by Part

III of Form 10-K or to restate or amend the historical financial statements of

the Company), the Company shall furnish or cause to be furnished forthwith to

CF&Co. a written opinion or opinions of Company Counsel or other counsel

satisfactory to CF&Co. dated the date of filing with the Commission of such

amendment or supplement or 10-K or 10-K/A, as the case may be, in form and

substance satisfactory to CF&Co. and its counsel, in substantially the form

attached hereto as Exhibit 6(t)(4), but modified as necessary to relate to the

Registration Statement and the Prospectus, as amended and supplemented to the

time of delivery of such opinion.

 

     (u) On the date hereof and each time that (i) the Registration Statement is

amended or the Prospectus supplemented in connection with the sale of Shares to

include additional amended financial information or (ii) there is filed with the

Commission any Annual Report on Form 10-K or 10-K/A that contains audited

financial statements and any Current Report on Form 8-K that contains audited,

unaudited or pro forma financial statements, the Company shall cause its

independent registered public accounting firm reasonably satisfactory to CF&Co.,

forthwith to furnish CF&Co. letters (the "Comfort Letters"), dated the date

hereof, or the date of filing of such amendment, supplement or other document

with the Commission, as the case may be, in form and substance satisfactory to

CF&Co., (A) confirming that it is an independent registered public accounting

firm in accordance with the standards of the Public Company Accounting Oversight

Board and within the meaning of the Securities Act and is in compliance with the

applicable requirements relating to the qualification of accountants under Rule

2-01 of Regulation S-X of the Commission, (B) containing statements and

information of the type ordinarily included in accountants "comfort letters" as

set forth in the AICPA's Statement on Audit Standards 72 to underwriters in

connection with registered public offerings (the first such letter, the "Initial

Comfort Letter") and (C) updating the Initial Comfort Letter with any

information which would have been included in the Initial Comfort Letter had it

been given on such date and modified as necessary to relate to the Registration

Statement and the Prospectus, as amended and supplemented to the date of such

letter.

 

     7. Representations and Warranties of the Company and the Operating

Partnership. The Company and the Operating Partnership, jointly and severally,

represent and warrant to, and agree with, CF&Co. that:

 

     (a) The Common Stock is registered pursuant to Section 12(g) or 12(b) of

the Exchange Act and the Company and the Operating Partnership has filed all

reports, schedules, forms, statements and other documents required to be filed

by it with the Commission (the "Commission Documents") for at least two (2)

years, and all of such filings have been made on a timely basis. The Common

Stock is currently listed on the Exchange under the trading symbol "FR". The

Company and the Operating Partnership meet the requirements for use of Form S-3

under the Securities Act, including but not limited to the transaction

requirements for a primary offering;

 

     (b) The Registration Statement and the Prospectus, including the financial

statements, schedules and related notes included in the Prospectus as of the

date hereof and at the time the Registration Statement became effective, and

when any post effective amendment to the Registration Statement or Rule 162(b)

Registration Statement becomes effective or any amendment or supplement to the

Prospectus is filed with the Commission or at the time of the filing of the

Company's Annual Report on Form 10-K (the "10-K"), did or will comply in all

material respects with all applicable provisions of the Securities Act and will

contain all statements required to be stated therein in accordance with the

Securities Act. The Prospectus, including the financial statements, schedules

and related notes included or incorporated by reference in the Prospectus as of

the date hereof and at the time the Registration Statement became effective, and

at any Settlement Date, and when any post-effective amendment to the

Registration Statement or Rule 462(b) Registration Statement becomes effective

or any amendment or

 

 

 

                                      -8-

<PAGE>

 

supplement to the Prospectus is filed with the Commission or at the time of the

filing of the 10-K, did or will comply in all material respects with all

applicable provisions of the Securities Act and will contain all statements

required to be stated therein in accordance with the Securities Act. On the date

the Registration Statement was declared effective, on the date hereof, on the

date of filing of any Rule 462(b) Registration Statement, on the date of the

filing of the 10-K and on the Settlement Date, no part of the Registration

Statement or any amendment did or will contain an untrue statement of a material

fact or omit to state a material fact required to be stated therein or necessary

in order to make the statements therein not misleading. On the date the

Registration Statement was declared effective, on the date hereof, as of its

date, on the date of filing of any Rule 462(b) Registration Statement, on the

date of the filing of the 10-K and at any Settlement Date, the Prospectus did

not and will not contain an untrue statement of a material fact or omit to state

a material fact necessary to make the statements therein, in light of the

circumstances under which they were made, not misleading. If a Rule 462(b)

Registration Statement is filed in connection with the offering and sale of the

Shares, the Company and the Operating Partnership will have complied or will

comply with the requirements of Rule 111 under the Securities Act relating to

the payment of filing fees therefor. The foregoing representations and

warranties in this Section 7(b) do not apply to any statements or omissions made

in reliance on and in conformity with information relating to CF&Co. furnished

in writing to the Company or the Operating Partnership by CF&Co. specifically

for inclusion in the Registration Statement or Prospectus or any amendment or

supplement thereto. Neither the Company nor the Operating Partnership has

distributed any offering material in connection with the offering or sale of the

Shares other than the Registration Statement, the preliminary prospectus, the

Prospectus or any other materials, if any, permitted by the Securities Act

(which were disclosed to CF&Co. and CF&Co.'s counsel);

 

     (c) Any preliminary prospectus supplements filed pursuant to Rule 424 under

the Securities Act and each 462(b) Registration Statement, if any, complied or

will comply when so filed in all material respects with all applicable

provisions of the Securities Act and did not contain an untrue statement of a

material fact or omit to state a material fact necessary to make the statements

therein, in the light of the circumstances under which they were made, not

misleading; each preliminary prospectus and the Prospectus delivered to CF&Co.

for use in connection with the offering of Shares will, at the time of such

delivery, be identical to the electronically transmitted copies thereof filed

with the Commission pursuant to EDGAR, except to the extent permitted by

Regulation S-T;

 

     (d) The documents incorporated or deemed to be incorporated by reference in

the Prospectus pursuant to Item 12 of Form S-3 under the Securities Act, at the

time they were, or hereafter are, filed with the Commission, complied and will

comply in all material respects with the requirements of the Exchange Act, and,

when read together with other information included in, and incorporated by

reference in, the Prospectus, at the time the Registration Statement became

effective, as of the date of the Prospectus, at the time of the filing of the

10-K and as of the Settlement Date, or during the period specified in Section

6(h), did not and will not include an untrue statement of a material fact or

omit to state a material fact necessary to make the statements therein, in the

light of the circumstances under which they were made, not misleading. The

foregoing representations and warranties in this Section 7(d) do not apply to

any statements or omissions made in reliance on and in conformity with

information relating to CF&Co. furnished in writing to the Company or the

Operating Partnership by CF&Co. specifically for inclusion in the Registration

Statement or Prospectus or any amendment or supplement thereto;

 

     (e) The Company has been duly organized and is validly existing as a

corporation under and by virtue of the laws of the State of Maryland, and is in

good standing with the State Department of Assessments and Taxation of Maryland.

The Operating Partnership has been duly organized and is validly existing as a

limited partnership in good standing under and by virtue of the Delaware Revised

Uniform Limited Partnership Act. Each of First Industrial Financing Partnership,

L.P.

 

 

 

                                      -9-

<PAGE>

 

(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, FIH, FII and

FIP are referred to collectively herein as the "Partnership Subsidiaries") has

been duly organized and is validly existing as a limited partnership in good

standing under and by virtue of the laws of its jurisdiction of organization.

Each of First Industrial Securities Corporation ("FISC"), First Industrial

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," and the Partnership

Subsidiaries and the Corporate 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 and the Partnership Subsidiaries, no entities in which

the Company owns any equity securities constitute, individually or in the

aggregate, a "significant subsidiary" under Rule 1-02 of Regulation S-X

promulgated under the Exchange Act. The Company is the sole general partner of

the Operating Partnership. FIFC is a wholly-owned subsidiary of the Company and

is the sole general partner of the Financing Partnership. FIM is a wholly-owned

subsidiary of the Company and is the sole general partner of the Mortgage

Partnership. FISC is a wholly-owned subsidiary of the Company and is the sole

general partner of Securities, L.P. The Operating Partnership and FISC are the

only limited partners of Securities, L.P. FIPC is a wholly-owned subsidiary of

the Company and is the sole general partner of FIP. FIIC is a wholly-owned

subsidiary of the Company and is the sole general partner of FII. FIHC is a

wholly-owned subsidiary of the Company and is the sole general partner of FIH.

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.). The Operating Partnership, the Company and each of the

Subsidiaries has, and at any Settlement Date will 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 as described in the

Prospectus and the transactions contemplated hereby and thereby. The Company and

each of the Corporate Subsidiaries is, and at any Settlement Date will be, duly

qualified or registered to do business and in good standing as a foreign

corporation in all jurisdictions in which the nature of the activities conducted

by it or the character of the properties and assets owned, leased or operated by

it makes such qualification or registration necessary, except where failure to

obtain such qualifications or registration will not have a material adverse

effect on (i) the condition, financial or otherwise, or the earnings, assets or

business affairs or prospects of the Operating Partnership, Company and their

Subsidiaries, taken as a whole or on the 814 in service properties owned,

directly or indirectly, by the Company as of June 30, 2004 (the "Properties")

taken as a whole, (ii) the issuance, validity or enforceability of 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 3 hereto. The Operating Partnership

and each of the Partnership Subsidiaries is, and at any Settlement 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 3 hereto. Complete and correct copies of the articles of

incorporation and of the by-laws of the Company, the certificate of limited

partnership and agreement of limited partnership of the Operating Partnership

and the charter documents, partnership agreements and other organizational

documents of the Subsidiaries and all amendments thereto as have been requested

by CF&Co. or CF&Co.'s counsel have been delivered to CF&Co. or CF&Co.'s counsel;

 

 

 

                                      -10-

<PAGE>

 

     (f) The Company's authorized capitalization consists of 10,000,000 shares

of preferred stock, par value $.01 per share, 100,000,000 shares of common

stock, par value $.01 per share, and 65,000,000 shares of excess stock, par

value $.01 per share. All of the Company's issued and outstanding shares of

common stock and preferred stock have been duly authorized and are validly

issued, fully paid and non-assessable and will have been offered and sold in

compliance, in all material respects, with all applicable laws (including,

without limitation, federal or state securities laws). The Shares have been duly

authorized for issuance and sale to CF&Co. or to purchasers identified by CF&Co.

pursuant to this Agreement and, when validly issued and delivered pursuant to

this Agreement against payment of the Net Proceeds, will be duly authorized,

validly issued, fully paid and non-assessable and will not be subject to any

preemptive or similar right and will have been offered and sold in compliance,

in all material respects, with all applicable laws (including, without

limitation, federal or state securities laws). The description of the Shares,

and the statements related thereto, contained in the Registration Statement or

the Prospectus are, and the Prospectus at any Settlement Date will be, complete

and accurate in all material respects. Upon payment of the Net Proceeds and

delivery of certificates representing the Shares in accordance herewith, CF&Co.

or such other purchaser will receive good, valid and marketable title to the

Shares, free and clear of all security interests, mortgages, pledges, liens,

encumbrances, claims and equities. No shares of common or preferred stock of the

Company are reserved for any purpose other than securities to be issued pursuant

to this Agreement and except as disclosed in the Prospectus other than shares

reserved for issuance pursuant to the Company's Shareholder Rights Plan;

 

     (g) As of the Settlement Date, the partnership agreement of the Operating

Partnership will have been duly authorized, executed and delivered by the

Company, as general partner and a limited partner and the partnership agreement

of each Partnership Subsidiary, will have been duly authorized, validly executed

and delivered by each partner thereto and (assuming in the case of the Operating

Partnership the due authorization, execution and delivery of the partnership

agreement by each limited partner other than the Company) each such partnership

agreement will be a valid, legally binding and enforceable in accordance with

its terms immediately following the Settlement Date subject to (i) the effect of

bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or

other similar laws now or hereafter in effect relating to or affecting the

rights and remedies of creditors and (ii) the effect of general principles of

equity, whether enforcement is considered in a proceeding in equity or at law,

and the discretion of the court before which any proceeding therefor may be

brought. All of the issued and outstanding shares of capital stock of the

Company and each Corporate Subsidiary, all of the outstanding units of general,

limited and/or preferred partner interests of the Operating Partnership and each

Partnership Subsidiary will have been duly authorized and are validly issued,

fully paid and non-assessable; and (except as described in the Prospectus) will

be owned directly or indirectly (except in the case of the Company) by the

Operating Partnership or the Company, 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 Operating Partnership, the Company and the

Subsidiaries), and all of the partnership interests in each Partnership

Subsidiary will have been duly authorized and are validly issued, fully paid,

and (except as described in the Prospectus) will be owned directly or indirectly

by the Operating Partnership or the Company, free and clear of all security

interests, liens and encumbrances (except for pledges in connection with the

loan agreements of the Operating Partnership, the Company and the Subsidiaries);

 

     (h) The financial statements, supporting schedules and related notes

included in, or incorporated by reference in, the Registration Statement and the

Prospectus comply in all material respects with the requirements of the

Securities Act and the Exchange Act, as applicable, and present fairly the

consolidated financial condition of the entity or entities or group presented or

included therein, as of the respective dates thereof, and its consolidated

results of operations and cash flows for the respective periods covered thereby,

are all in conformity with generally accepted accounting principles applied on a

consistent basis throughout the entire period involved, except as otherwise

disclosed in the Prospectus. The financial information and data included in the

Registration Statement and the Prospectus

 

 

 

                                      -11-

<PAGE>

 

present fairly the information included or incorporated by reference therein and

have been prepared on a basis consistent, except as may be noted therein, with

that of the financial statements, schedules and notes included or incorporated

by reference in the Registration Statement and the Prospectus and the books and

records of the respective entity or entities or group presented or included

therein. Except as otherwise noted in the Prospectus, pro forma and/or as

adjusted financial information included or incorporated by reference in the

Prospectus has been prepared in accordance with the applicable requirements of

the Securities Act, the Public Company Accounting Oversight Board and the

American Institute of Certified Public Accountants ("AICPA") guidelines with

respect to pro forma and as adjusted financial information, and includes all

adjustments necessary to present fairly the pro forma and/or as adjusted

financial condition of the entity or entities or group presented or included

therein at the respective dates indicated and the results of operations and cash

flows for the respective periods specified. The Company's ratio of earnings to

fixed charges in Exhibits 12.1 to the Registration Statement has been calculated

in compliance with Item 503(d) of Regulation S-K of the Commission. No other

financial statements (or schedules) of the Company, the Operating Partnership

and the Partnership Subsidiaries or any predecessor of the Company and/or the

Operating Partnership and the Partnership Subsidiaries are required by the

Securities Act or the Exchange Act to be included in the Registration Statement

and the Prospectus. PricewaterhouseCoopers LLP, which has reported on such

financial statements, schedules and related notes, is an independent registered

public accounting firm in accordance with the standards of the Public Company

Accounting Oversight Board with respect to the Company, the Operating

Partnership and the Partnership Subsidiaries as required by the Securities Act;

 

     (i) Subsequent to the respective dates as of which information is given in

the Registration Statement and the Prospectus and prior to the Settlement Date,

(i) there has not been and will not have been, except as set forth in or

contemplated by the Registration Statement, the Prospectus and this Agreement,

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 Company, the Operating Partnership and the Subsidiaries,

considered as one enterprise, being hereinafter referred to as "Material"), (ii)

except as described in the Prospectus, neither the Company, the Operating

Partnership nor any of the Subsidiaries has incurred nor will any of them incur

any liabilities or obligations, direct or contingent, which would be Material,

nor has any of them entered into nor will any of them enter into any

transactions, other than pursuant to this Agreement and the transactions

referred to herein or as contemplated in the Registration Statement, the

Prospectus and this Agreement, which would be Material, (iii) there has not been

any Material Adverse Effect, (iv) except for regular quarterly distributions on

the Company's shares of common stock, par value $0.01 per share, and the

dividends on, and any distributions on redemption of, the shares of the

Company's (a) Depositary Shares each representing 1/100 of a share of 85/8%

Series C Cumulative Preferred Stock, (b) Depositary Shares each representing

1/100 of a share of 6.236% Series F Cumulative Preferred Stock, (c) Depositary

Shares each representing 1/100 of a share of 7.236% Series G Cumulative

Preferred Stock and (d) Depositary Shares each representing 1/100 of a share of

Series H Cumulative Preferred Stock having a variable dividend rate which is

initially London Interbank Offered Rate (LIBOR) plus 1.65% through August 31,

2004, 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;

 

     (j) Neither the Company, the Operating Partnership nor any of the

Subsidiaries is, or as of the Settlement Date will be, required to be registered

under the Investment Company Act of 1940, as amended (the "1940 Act");

 

 

 

                                       -12-

<PAGE>

 

     (k) To the knowledge of the Company or the Operating Partnership, after due

inquiry, except as set forth in the Registration Statement and the Prospectus,

there are no actions, suits, proceedings, investigations or inquiries, pending

or, threatened against or affecting the Company, the Operating Partnership or

any of the Subsidiaries or any of their respective officers or directors in

their capacity as such