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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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
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<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.
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<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;
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<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
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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");
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<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
