First Industrial Realty Trust,
Inc.
12,500,000 Shares
Common Stock
J.P. Morgan
Securities Inc.
As Representative of the several Underwriters
named on Schedule I hereto
c/o J.P. Morgan Securities Inc.
383 Madison Avenue
New York, New York 10179
First Industrial
Realty Trust, Inc., a Maryland corporation (the “
Company ”), by this agreement (the “
Agreement ”) proposes to issue and sell to the several
underwriters listed in Schedule I hereto (the “
Underwriters ”), for whom you are acting as
representative (the “ Representative ”), an
aggregate of 12,500,000 shares of common stock (the “ Firm
Securities ”), par value $0.01 per share (“
Common Stock ”), and also proposes to issue and sell
to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 1,875,000 additional shares (“
Optional Securities ”) of Common Stock as set forth
below. The Firm Securities and the Optional Securities are herein
collectively called the “ Securities
.”
The Company and
First Industrial, L.P., a Delaware limited partnership whose sole
general partner is the Company (the “ Operating
Partnership ”), have prepared and filed with the
Securities and Exchange Commission (the “ Commission
”) in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “ Securities Act
”), a registration statement (file number 333-157771) on Form
S-3, including the related prospectus (the “ Base
Prospectus ”), 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, or proposes to file, with the
Commission pursuant to Rule 424 under the Securities Act
(“ Rule 424 ”) a prospectus supplement
specifically relating to the Securities (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 .” For purposes of this Agreement, “
Effective Time ” with respect to the Registration
Statement means if the Company has advised the Underwriters that it
does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to
Rule 462(c). Any reference in this Agreement to the
Registration
Statement, the
Prospectus as defined hereunder or any preliminary prospectus (a
“ preliminary prospectus ”), as the case may be,
previously filed with the Commission pursuant to Rule 424
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 or the Prospectus, as the case
may be; and any reference to “amend,”
“amendment” or “supplement” with respect to
the Registration Statement 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 or the Prospectus, as the case may be, which are deemed
to be incorporated by reference therein. “Registration
Statement” without reference to a time means the Registration
Statement as of its Effective Time. “Registration
Statement” as of any specified time means the Registration
Statement in the form then filed with the Commission immediately
prior to that time, including any amendment thereto or any document
incorporated by reference therein and any prospectus deemed or
retroactively deemed to be a part thereof that has not been
superseded or modified. For purposes of the previous sentence,
information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A shall be
considered to be included in the Registration Statement as of the
time specified in Rule 430A. “ Statutory
Prospectus ” as of any specified time means the
prospectus included in the Registration Statement immediately prior
to that time, including any document incorporated by reference
therein and any prospectus supplement deemed or retroactively
deemed to be a part thereof that has not been superseded or
modified. For purposes of the preceding sentence, information
contained in a form of prospectus that is deemed retroactively to
be a part of the Registration Statement pursuant to Rule 430A
shall be considered to be included in the Statutory Prospectus as
of the actual time that form of prospectus is filed with the
Commission pursuant to Rule 424(b) (“ Rule 424(b)
”) under the Securities Act. “ Prospectus
” means the Statutory Prospectus in the form first used (or
made available upon request of purchasers pursuant to
Rule 173) in connection with confirmation of sales of the
Securities that discloses the public offering price and other final
terms of the Securities and otherwise satisfies Section 10(a) of
the Securities Act. “ Issuer Free Writing Prospectus
” means any “issuer free writing prospectus,” as
defined in Rule 405, relating to the Securities in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g). “ General Use Issuer
Free Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified as such in
Schedule II to this Agreement. “ Limited Use
Issuer Free Writing Prospectus ” means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus, including the electronic road show related to the
Securities posted on http://www.netroadshow.com on
September 29, 2009. “ Applicable Time ”
means 5:15 P.M. (Eastern time) on the date of this Agreement. All
references in this Agreement to financial statements and schedules
and other information which is “contained,”
“included,” “described” or
“stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in the Registration Statement or
Prospectus, as the case may be.
At or prior to the
Applicable Time, the Company had prepared the following
information, (the “ Applicable Time Information
”): (1) any Issuer Free Writing Prospectus referenced on
Schedule II hereto, (2) the preliminary Prospectus
Supplement dated September 29, 2009 together with the Base
Prospectus and (3) any filing under the Exchange Act which is
deemed incorporated by reference in the Base Prospectus, the
preliminary Prospectus Supplement or the Registration
Statement.
The Company hereby
agrees with the Underwriters as follows:
2
1. The
Company agrees to issue and sell the Securities to each Underwriter
as hereinafter provided, and each Underwriter, on the basis of the
representations, warranties and agreements herein contained, but
subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Company the number of
Securities set forth opposite such Underwriters’ name in
Schedule I hereto at a purchase price per share of
$5.026875 (the “ Purchase Price ”).
2. The
Company understands that the several Underwriters intend
(i) to make a public offering (the “ Offering
”) of their respective portions of the Securities as soon
after the execution of this Agreement as in the judgment of the
Underwriters is advisable and (ii) initially to offer the
Securities upon the terms to be set forth in the
Prospectus.
3. (a) Payment
for the Firm Securities shall be made to the Company or to its
order in immediately available funds at the offices of Clifford
Chance US LLP, 31 West 52nd Street, New York, New York 10019, at
10:00 A.M., New York City time, on October 5, 2009 (or at
such other time and place on the same or such other date, not later
than the third Business Day thereafter, as you and the Company may
agree in writing). Such payment will be made upon delivery to the
Underwriters of the Securities registered in such names and in such
denominations as you shall request not less than two full Business
Days prior to the date of delivery, with any transfer taxes payable
in connection with transfer to the Underwriters duly paid by the
Company. As used herein, the term “ Business Day
” means any day other than a day on which banks are permitted
or required to be closed in New York City or the City of Chicago.
The time and date of such payment and delivery with respect to the
Firm Securities are referred to herein as the “ First
Closing Date .” The Firm Securities will be delivered
through the book-entry facilities of The Depository Trust Company
(“ DTC ”).
(b) In
addition, the Underwriters may exercise the option to purchase the
Optional Securities at any time, in whole, or from time to time in
part, at the Purchase Price, on or before the 30th day following
the date of the Prospectus, by written notice from the
Representative to the Company; provided that the Purchase
Price for any Optional Securities shall be reduced by an amount per
share equal to any dividends or distributions declared by the
Company and payable on the Firm Securities but not payable on such
Optional Securities. The Company agrees to sell to the Underwriters
the number of shares of Optional Securities specified in such
notice, and the Underwriters agree to purchase such Optional
Securities. Such Optional Securities shall be purchased by you only
for the purpose of covering over-allotments made in connection with
the sale of the Firm Securities. No Optional Securities shall be
sold or delivered unless the Firm Securities previously have been,
or simultaneously are, sold and delivered. The right to purchase
the Optional Securities or any portion thereof may be exercised
once and to the extent not previously exercised may be surrendered
and terminated at any time upon notice by the Underwriters to the
Company.
(c) The
time for the delivery of and payment for the Optional Securities
(the “ Optional Closing Date ”) which may be the
First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a “
Closing Date ”), shall be determined by the
Underwriters but shall be not later than five full Business Days
after written notice of election to purchase Optional Securities is
given.
(d) Payment
for the Optional Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time
and place set forth in the written notice set forth in Section 3(a)
above (or at such other time and place on the same or such other
date, not later than the third Business Day thereafter, as you and
the Company may agree in writing). Such payment will be made upon
delivery to the Underwriters of the Securities registered in such
names and in such denominations as you shall request not less than
two full Business days prior to the date of delivery,
with
3
any transfer
taxes payable in connection with transfer to the Underwriters duly
paid by the Company. The Optional Securities will be delivered
through the book entry facilities of DTC.
4. Each of
the Company and the Operating Partnership severally covenants and
agrees with the Underwriters as follows:
(a) In
respect of the offering of the Securities, the Company will
(i) prepare a Prospectus Supplement setting forth the number
of Securities covered thereby, the name of the Underwriters
participating in the offering and the number of Securities which
each severally has agreed to purchase, the price at which the
Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the selling concession
and reallowance, if any, and such other information as the
Underwriters and the Company deem appropriate in connection with
the offering of the Securities, (ii) file the Statutory
Prospectus in a form approved by you pursuant to Rule 424
under the Securities Act within the applicable time period
prescribed by such rule for such filing (iii) file any Issuer
Free Writing Prospectus to the extent required by Rule 433
under the Securities Act; and file promptly all reports and any
definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities;
and (iv) furnish copies of the Statutory Prospectus to the
Underwriters and to such dealers as you 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
you may reasonably request. The Company has complied and will
comply with Rule 433;
(b) The
Company will comply with the Securities Act and the Exchange Act so
as to permit the completion of the distribution of the Securities
contemplated in this Agreement and in the Registration Statement
and the Prospectus. At any time when the Prospectus is (or but for
the exemption in Rule 172 would be) required to be delivered
under the Securities Act or the Exchange Act in connection with
sales of Securities, the Company will advise you promptly and, if
requested by you, 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 Securities
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, the Prospectus or the Applicable Time
Information untrue or which requires the making of any additions to
or changes in the Registration Statement, the Prospectus or the
Applicable Time Information in order to make the statements therein
not misleading. 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 you, 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, as you may reasonably
request. If applicable, the copies of the Registration Statement
and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed
with the Commission pursuant to the
4
Commission’s Electronic Data Gathering and
Retrieval System (“ EDGAR ”), except to the
extent permitted by Regulation S-T;
(d) At
any time when the Prospectus is (or but for the exemption in
Rule 172 would be) required to be delivered under the
Securities Act or the Exchange Act in connection with sales of
Securities, not to prepare, use, authorize, approve, refer to or
file any Issuer Free Writing Prospectus or 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 you
shall not previously have been advised or to which you or counsel
for the Underwriters shall reasonably object; and to prepare and
file with the Commission, promptly upon your reasonable request,
any amendment to the Registration Statement, Rule 462(b)
Registration Statement, Issuer Free Writing Prospectus, or
amendment or supplement to the Prospectus which, in the opinion of
counsel for the Underwriters, may be necessary in connection with
the distribution of the Securities by you, and to use its
reasonable best efforts to cause the same to become promptly
effective. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters 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)
(i) If, at any time when the Prospectus is (or but for the
exemption in Rule 172 would be) required to be delivered under
the Securities Act or the Exchange Act in connection with sales of
Securities, any event shall occur as a result of which, in the
opinion of counsel for the Underwriters, 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 forthwith prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus
(in form and substance reasonably satisfactory to counsel for the
Underwriters) 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 each
Underwriter and to such dealers as the Representative may
designate, such number of copies thereof as such Underwriter or
dealers may reasonably request and (ii) if any time prior to
each Closing Date (1) any event shall occur or condition shall
exist as a result of which the Applicable Time Information as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances,
not misleading or (2) it is necessary to amend or supplement
the Applicable Time Information to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above; file with the
Commission (to the extent required) and furnish to each Underwriter
and to such dealers as the Representative may designate, such
amendments or supplements to the Applicable Time Information as may
be necessary so that the statements in the Applicable Time
Information as so amended or supplemented will not, in the light of
the circumstances, be misleading or so that the Applicable Time
Information will comply with law;
(f) The
Company will use its reasonable best efforts, in cooperation with
the Underwriters, to qualify, register or perfect exemptions for
the Securities for offer and sale by the several Underwriters to
qualified institutions under the applicable state securities, Blue
Sky and real estate syndication laws of such jurisdictions as you
may reasonably request; provided , however , the
Company will not be required to qualify as a foreign corporation,
file a general consent to service of process in any such
jurisdiction, subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so
subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company
reasonably determines to be contrary to the best interests of the
Company and its stockholders. In each jurisdiction in which the
Securities have been so qualified or registered, the Company will
use all reasonable efforts to file such statements and reports as
may be
5
required by the
laws of such jurisdiction, to continue such qualification or
registration in effect for so long a period as the Underwriters may
reasonably request for the distribution of the Securities 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 40 days
after the close of the period covered thereby (60 days (or
75 days in the event Company is no longer a “large
accelerated filer” as defined in Rule 12b-2 of the
Exchange Act) in the event the close of such period is the close of
the Company’s fiscal year), an earning 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 60 days (or 75 days in the event
the Company is no longer a “large accelerated filer” as
defined in Rule 12b-2 of the Exchange Act) after such date)
which shall satisfy the provisions of Section 11(a) of the
Securities Act, and, if 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 earning statement is
released;
(h) During
the period when the Prospectus is (or but for the exemption in
Rule 172 would be) required to be delivered under the
Securities Act or the Exchange Act in connection with sales of the
Securities, 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;
(i) The
Company will use its reasonable best efforts to do and perform all
things required to be done and performed under this Agreement by
the Company prior to each Closing Date and to satisfy all
conditions precedent to the delivery of the Securities;
(j) The
Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Registration
Statement, the Applicable Time Information and the Prospectus
Supplement under “Use of Proceeds;”
(k) The
Company will use its best efforts to continue to qualify as a real
estate investment trust (“ REIT ”) under
Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (the “ Code ”), unless the
Company’s board of directors determines that it is no longer
in the best interests of the Company to be so qualified;
(l) The
Company will not, at any time, directly or indirectly, take any
action intended, or which might reasonably be expected to cause or
result in, or which will constitute stabilization of the price of
the Securities to facilitate the sale or resale of any Securities
in violation of the Securities Act;
(m) The
Company will cooperate with the Representative and use commercially
reasonable efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC;
(n) The
Company will use its best efforts to list, subject to notice of
issuance, the Securities on The New York Stock Exchange, Inc. (the
“ NYSE ”);
6
(o) For
the period specified below (the “ Lock-Up Period
”), the Company will not (i) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise
transfer or dispose of directly or indirectly, or file with the
Commission a registration statement under the Securities Act
relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of
its Securities, or publicly disclose the intention to make any such
offer, sale, pledge, disposition or filing, or (ii) enter into
any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities or
any such other securities, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery
of Securities or such other securities, in cash or otherwise,
without the prior written consent of the Representative, except
issuances of Securities pursuant to the conversion or exchange of
convertible or exchangeable securities pursuant to the contractual
terms of those securities or the exercise of warrants or options or
vesting of restricted stock units, in each case outstanding on the
date hereof, sales of Common Stock under the Company’s
Dividend Reinvestment and Direct Stock Purchase Plan, grants of
Common Stock, employee stock options or restricted stock units
pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options or
the exercise of any other employee stock options outstanding on the
date hereof or the redemption, repurchase or other acquisition by
the Company or the Operating Partnership of any of their
outstanding debt securities (including, without limitation, the
Operating Partnership’s Exchangeable Senior Notes due 2011).
The initial Lock-Up Period will commence on the date hereof and
will continue and include the date 60 days after the date of
the Prospectus or such earlier date that the Representative
consents to in writing; provided , however , that if
(1) during the last 17 days of the initial Lock-Up Period, the
Company releases earnings results or material news or a material
event relating to the Company occurs or (2) prior to the
expiration of the initial Lock-Up Period, the Company announces
that it will release earnings results during the 16-day period
beginning on the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be extended until the expiration
of the 18-day period beginning on the date of release of the
earnings results or the occurrence of the material news or material
event, as applicable, unless the Representative waives, in writing,
such extension. The Company will provide the Representative with
notice of any announcement described in clause (2) of the
preceding sentence that gives rise to an extension of the Lock-Up
Period;
(p) The
Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 424(b) of the Securities Act the
Prospectus;
(q) For
12 months after the date hereof, the Company will furnish to
the Representative, as soon as they are available, copies of all
reports or other communications (financial or other) furnished to
holders of the Securities, and copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange or automatic quotation system;
provided the Company will be deemed to have furnished such
reports and financial statements to the Representative to the
extent they are filed on EDGAR; and
(r) The
Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is
not filed with the Commission in accordance with Rule 433
under the Securities Act.
5. Free
Writing Prospectuses . The Company represents and agrees that,
unless it obtains the prior consent of the Underwriters, and the
Underwriters represent and agree that, unless they obtain the prior
consent of the Company, neither the Company nor the Underwriters
have made nor will make any offer relating to the Securities that
would constitute an Issuer Free Writing Prospectus, or that would
otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by the Company and
the Underwriters is
7
hereinafter
referred to as a “ Permitted Free Writing Prospectus
.” The Company represents that it has treated and agrees that
it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely Commission filing where
required, legending and record keeping.
6. The
Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and
at each Closing Date that:
(a) The
Company and the Operating Partnership meet the requirements for use
of Form S-3. The Registration Statement was filed by the Company
and the Operating Partnership with the Commission not earlier than
three years prior to the date hereof and has been declared
effective by the Commission;
(b) As
of the applicable effective date of the Registration Statement and
any post-effective amendment thereto, the Registration Statement
and any such post-effective amendment complied and will comply in
all material respects with all applicable provisions of the
Securities Act, and did not and will not contain any 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. As of the date of the Prospectus
and any amendment or supplement thereto, the First Closing Date and
any Optional Closing Date, as the case may be, the Prospectus will
comply in all material respects with all applicable provisions of
the Securities Act and will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If a Rule 462(b)
Registration Statement is filed in connection with the offering and
sale of the Securities, 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 6(b) do not apply to any statements or omissions
made in reliance on and in conformity with information relating to
any Underwriters furnished in writing to the Company or the
Operating Partnership by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any
amendment or supplement thereto. Neither the Company nor the
Operating Partnership has distributed, and prior to the later of
the First Closing Date and the completion of the distribution of
the Securities, will not distribute, any offering material in
connection with the offering or sale of the Securities 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 the Underwriters and the
Underwriters’ counsel and are listed on
Schedule II hereof);
(c) Each
preliminary prospectus supplement, filed pursuant to Rule 424
under the Securities Act complied or will comply when so filed in
all material respects with all applicable provisions of the
Securities Act; 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 the Underwriters for use in connection with
the offering of Securities 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 Registration Statement, the Prospectus and the Applicable Time
Information 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 Registration
8
Statement, the
Prospectus and the Applicable Time Information, at the time the
Registration Statement became effective, as of the date of the
Prospectus, the Applicable Time and as of each Closing Date, or
during the period specified in Section 4(e) 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 6(d) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to any
Underwriters furnished in writing to the Company or the Operating
Partnership by the Underwriters specifically for inclusion in the
Registration Statement, Prospectus or the Applicable Time
Information or any amendment or supplement thereto;
(e) At
the time of filing the Registration Statement and at the date of
this Agreement, each of the Company and the Operating Partnership
was not and is not an “ineligible issuer,” as defined
in Rule 405, including as a result of (x) the Company,
the Operating Partnership or any other subsidiary in the preceding
three years having been convicted of a felony or misdemeanor or
having been made the subject of a judicial or administrative decree
or order as described in Rule 405 and (y) the Company or
the Operating Partnership in the preceding three years having been
the subject of a bankruptcy petition or insolvency or similar
proceeding, having had a registration statement be the subject of a
proceeding under Section 8 of the Securities Act or being the
subject of a proceeding under Section 8A of the Securities Act
in connection with the offering of the Securities, all as described
in Rule 405;
(f) As
of the Applicable Time, neither the Applicable Time Information,
nor any individual Limited Use Issuer Free Writing Prospectus,
included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from any prospectus included in the
Applicable Time Information or any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information
furnished to the Company by the Representative specifically for use
therein, it being understood and agreed that the only such
information furnished by the Underwriters consists of the
information described in the second paragraph of Section 7
hereof. No statement of material fact included in the Prospectus
has been omitted from the Applicable Time Information and no
statement of material fact included in the Applicable Time
Information that is required to be included in the Prospectus has
been omitted therefrom;
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the Securities or until any earlier date that the Company
notified or notifies the Underwriters as described in the second
following sentence, will comply in all material respects with all
applicable provisions of the Securities Act and will not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Securities or until any earlier date
that the Company notified or notifies the Underwriters as described
in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any
time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading,
(i) the Company has promptly notified or will promptly notify
the Underwriters and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus in reliance
upon and in
9
conformity with
written information furnished to the Company by the Underwriters
specifically for use therein, it being understood and agreed that
the only such information furnished by the Underwriters consists of
the information described as such in the second paragraph of
Section 7 hereof;
(h) The
Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not made, used,
prepared, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any Issuer Free Writing
Prospectus other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities
Act or Rule 134 under the Securities Act, (ii) any
documents listed on Schedule II hereto and other written
communications approved in writing in advance by the Representative
or (iii) the electronic road show related to the Securities
posted on http://www.netroadshow.com on September 29, 2009.
Each such Issuer Free Writing Prospectus complied in all material
respects with the Securities Act, has been filed in accordance with
the Securities Act (to the extent required thereby) and did not,
and at each Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in
any Issuer Free Writing Prospectus;
(i) 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. (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
”), FI Development Services, L.P. (“ FIDS
”), First Industrial Texas, L.P. (“ FIT ”)
and First Industrial Indianapolis, L.P. (“ FII
”), FR FirstCal, LLC (“ FRFC ”), First
Industrial Investment II, LLC (successor by merger to First
Industrial Investment, Inc.) (“ FIII ”) and FR
Investment Properties, LLC (“ FRIP ”) (the
Financing Partnership, Securities, L.P., the Mortgage Partnership,
FIP, FIH, FIDS, FIT, FII, FRFC, FIII and FRIP 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
Harrisburg Corporation (“FIHC”), First Industrial
Securities Corporation (“ FISC ”), First
Industrial Indianapolis Corporation (“ FIIC ”),
First Industrial Finance Corporation (“ FIFC ”),
First Industrial Mortgage Corporation (“ FIMC
”), FI Development Services Corporation (“ FIDSC
”), First Industrial Pennsylvania Corporation (“
FIPC ”) and First Industrial Investment Properties,
Inc. (“ FIIP ”) (FIHC, FISC, FIIC, FIFC, FIMC,
FIDSC, FIPC and FIIP 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 or limited
liability company, as the case may be, in good standing under and
by virtue of the laws of its jurisdiction of incorporation or
formation. Other than the Subsidiaries, no entity in which the
Company owns any equity securities constitutes, individually or in
the aggregate, a “significant subsidiary” under
Rule 1-02 of Regulation S-X (substituting “net
income” for “income from continuing operations”)
promulgated under the Exchange Act. 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. FIMC 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. 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
10
wholly-owned
subsidiary of the Company and is the sole general partner of FIH.
FIDSC is a wholly-owned subsidiary of the Company and is the sole
general partner of FIDS. The Operating Partnership is the sole
limited partner of each Partnership Subsidiary. The Company, the
Operating Partnership and each of the Subsidiaries has, and at each
Closing Date will have, full corporate, limited 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. The Company and each of the
Corporate Subsidiaries is, and at each Closing Date will be, duly
qualified or registered to do business and in good standing as a
foreign corporation or limited liability company, as the case may
be, 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 788 in service properties owned, directly or indirectly, by
the Company as of June 30, 2009 (the “ Properties
”), taken as a whole, (ii) the issuance, validity or
enforceability of the Securities or (iii) the consummation of
any of the transactions contemplated by this Agreement (each a
“ Material Adverse Effect ”). The Operating
Partnership and each of the Partnership Subsidiaries is, and at
each Closing Date will be, duly qualified or registered to do
business and in good standing as a foreign limited partnership in
all jurisdictions in which the nature of the activities conducted
by it or the character of the assets owned, leased or operated by
it makes such qualification or registration necessary, except where
failure to obtain such qualification or registration will not have
a Material Adverse Effect. Complete and correct copies of the
charter documents, partnership agreements and other organizational
documents of the Company and its Subsidiaries and all amendments
thereto as have been requested by the Underwriters or their counsel
have been delivered to the Underwriters or their
counsel;
(j) The
Company’s authorized capitalization consists of 10,000,000
shares of preferred stock, par value $0.01 per share, 100,000,000
shares of Common Stock and 65,000,000 shares of excess stock, par
value $0.01 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
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when validly issued
and delivered pursuant to this Agreement against payment of the
Purchase Price, will be duly authorized, validly issued, fully paid
and non-assessable and will not be subject to any preemptive or
similar right and will have been offered and sold in compliance, in
all material respects, with all applicable laws (including, without
limitation, federal or state securities laws). The description of
the Securities, and the statements related thereto, contained in
the Registration Statement or the Prospectus are, and at each
Closing Date, will be, complete and accurate in all material
respects. Upon payment of the Purchase Price and delivery of
certificates representing the Securities in accordance herewith,
each of the Underwriters will receive good, valid and marketable
title to the Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The
form of certificate to be used to evidence the Securities will be
in due and proper form and will comply, in all material respects,
with all applicable legal requirements. 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;
(k) The
partnership agreement of the Operating Partnership is duly
authorized, executed and delivered by the Company, as general
partner and a limited partner, and the partnership agreement of
each Partnership Subsidiary is 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
11
partnership
agreement by each limited partner other than the Company) each such
partnership agreement will be a valid, legally binding and
enforceable in accordance with its terms immediately following each
Closing Date subject to (i) the effect of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law, and the discretion
of the court before which any proceeding therefor may be brought.
All of the issued and outstanding shares of capital stock of the
Company and each Corporate Subsidiary, 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 Company or the Operating Partnership, as the case may be, free
and clear of all security interests, liens and encumbrances (except
for pledges in connection with the loan agreements of the Company,
the Operating Partnership and the Subsidiaries), 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 Company or the Operating Partnership, free and clear of all
security interests, liens and encumbrances (except for pledges in
connection with the loan agreements of the Company, the Operating
Partnership and the Subsidiaries);
(l) The
financial statements, supporting schedules and related notes
included in, or incorporated by reference in, the Registration
Statement, the Applicable Time Information 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, the Applicable Time Information and the Prospectus
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, the Applicable Time
Information 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 Registration Statement,
the Applicable Time Information and the Prospectus, pro forma
and/or as adjusted financial information included or incorporated
by reference in the Registration Statement, Applicable Time
Information and the Prospectus has been prepared in accordance with
the applicable requirements of the Securities Act 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 and the Operating Partnership’s respective
ratio of combined fixed charges and preferred stock dividends to
earnings included in the Prospectus and in Exhibit 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, the Applicable Time
Information or the Prospectus. PricewaterhouseCoopers LLP (the
“ Accountants ”) who have reported on such
financial statements, schedules and related notes, are independent
registered public accountants with respect to the Company, the
Operating Partnership and the Partnership Subsidiaries with the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) (“
PCAOB ”) and as required by the Securities Act, and
there have been no disagreements
12
with any
accountants or “reportable events” (as defined in
Item 304 of Regulation S-K promulgated by the Commission)
required to be disclosed in the Prospectus or elsewhere pursuant to
such Item 304 which have not been so disclosed;
(m) Subsequent
to the respective dates as of which information is given in the
Registration Statement, the Applicable Time Information and the
Prospectus and prior to each Closing Date, (i) there has not been
and will not have been, except as set forth in or contemplated by
the Registration Statement, the Applicable Time Information, 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 Operating Partnership, the
Company and the Subsidiaries, considered as one enterprise, being
hereinafter referred to as “ Material ”),
(ii) except as described in the Registration Statement, the
Applicable Time Information or the Prospectus, neither the
Operating Partnership, the Company nor any of the Subsidiaries has
incurred nor will any of them incur any liabilities or obligations,
direct or contingent, which would be Material, nor has any of them
entered into nor will any of them enter into any transactions,
other than pursuant to this Agreement and the transactions referred
to herein or as contemplated in the Registration Statement, the
Applicable Time Information, 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, and
the dividends on, and any distributions on redemption of, the
shares of the Company’s (a) 6.236% Series F
Flexible Cumulative Redeemable Preferred Stock, (b) 7.236%
Series G Flexible Cumulative Redeemable Preferred Stock,
(c) Series J Cumulative Redeemable Preferred Stock, or
(d) Series K Cumulative Redeemable Preferred Stock, the
Company has not paid or declared and will not pay or declare any
dividends or other distributions of any kind on any class of its
capital stock, and (v) except for distributions in connection
with regular quarterly distributions on partnership units, the
Operating Partnership has not paid any distributions of any kind on
its partnership units;
(n) None
of the Company, the Operating Partnership or any of the
Subsidiaries is, or as of each Closing Date will be, required to be
registered under the Investment Company Act of 1940, as amended
(the “ 1940 Act ”);
(o) To
the knowledge of the Company or the Operating Partnership, after
due inquiry, except as set forth in the Registration Statement, the
Applicable Time Information and the Prospectus, there are no
actions, suits, proceedings, investigations or inquiries, pending
or, after due inquiry, threatened against or affecting the
Operating Partnership, the Company or any of the Subsidiaries or
any of their respective officers or directors in their capacity as
such or of which any of their respective properties or assets or
any Property is the subject or bound, before or by any Federal or
state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding would reasonably be
expected to have a Material Adverse Effect;
(p) The
Company, the Operating Partnership and each of the Subsidiaries
(i) has, and at each Closing Date will have, (A) all
governmental licenses, permits, consents, orders, approvals and
other authorizations necessary to carry on its business as
contemplated in the Registration Statement, the Applicable Time
Information or the Prospectus and are in material compliance with
such, and (B) complied in all material respects with all laws,
regulations and orders applicable to it or its business and
(ii) are not, and at each Closing Date will not be, in breach
of or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement, lease, contract, joint venture or
partnership agreement or other agreement or instrument
(collectively, a “ Contract or
13
Other
Agreement ”) or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which
any of its other assets or properties or by which the Properties
are bound or affected, except where such default, breach or failure
will not, either singly or in the aggregate, have a Material
Adverse Effect. To the knowledge of the Operating Partnership,
the
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