Attached files
file | filename |
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8-K - FORM 8-K - FIRST INDUSTRIAL REALTY TRUST INC | c63304e8vk.htm |
EX-5.1 - EX-5.1 - FIRST INDUSTRIAL REALTY TRUST INC | c63304exv5w1.htm |
EX-10.1 - EX-10.1 - FIRST INDUSTRIAL REALTY TRUST INC | c63304exv10w1.htm |
EX-99.1 - EX-99.1 - FIRST INDUSTRIAL REALTY TRUST INC | c63304exv99w1.htm |
Exhibit 8.1
Barack Ferrazzano Kirschbaum & Nagelberg llp
200 WEST MADISON STREET, SUITE 3900
CHICAGO, ILLINOIS 60606
Telephone (312) 984-3100
Facsimile (312) 984-3150
CHICAGO, ILLINOIS 60606
Telephone (312) 984-3100
Facsimile (312) 984-3150
February 28, 2011
First Industrial Realty Trust, Inc.
311 S. Wacker Drive
Suite 3900
Chicago, Illinois 60606
311 S. Wacker Drive
Suite 3900
Chicago, Illinois 60606
Re: First Industrial Realty Trust, Inc. |
Ladies and Gentlemen:
We have acted as tax counsel to First Industrial Realty Trust, Inc., a Maryland corporation
(the Company), in connection with the issuance and sale by the Company from time to time of shares of common stock, par value $0.01 per share, of the Company
having an aggregate offering price of up to $100,000,000.00 (the Common Stock)
through an at the market equity offering program as
contemplated by (i) the registration statement on Form S-3 (Registration No. 333-157771), including
the related base prospectus, filed with the Securities and Exchange Commission (SEC) under the
Securities Act of 1933, as amended (the Act), by the Company and First Industrial, L.P., a
Delaware limited partnership whose sole general partner is the Company (the Operating
Partnership), on March 6, 2009, which registration statement was declared effective by the SEC on
September 18, 2009, and (ii) the prospectus supplement dated February 28, 2011 specifically relating to the
Common Stock (collectively, the Registration Statement). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Registration Statement.
You have requested our opinion regarding certain U.S. federal income tax considerations
relating to the Companys qualification as a real estate investment trust (REIT) under the
Internal Revenue Code of 1986, as amended (the Code). In rendering this opinion, we have
examined and relied upon the descriptions of the Company, the Operating Partnership, their
subsidiaries, and their respective investments, as well as their respective proposed investments,
activities, operations, and governance, as set forth or incorporated in the Registration Statement.
We have reviewed originals or copies, certified or otherwise identified to our satisfaction, of
such documents, agreements, and information as we have deemed necessary for purposes of rendering
the opinion contained herein. For purposes of such examination, we have assumed the authenticity
of all documents submitted to us as originals, the conformity to authentic original documents of
all documents submitted to us as copies, the legal capacity of natural persons executing such
documents, and the genuineness of all signatures on originals or copies.
The opinion set forth herein is premised on certain factual representations made by the
Company, the Operating Partnership, and their subsidiaries through a certificate of an officer of
the Company, dated as of the date hereof (the Officers Certificate) and is also premised on an
assumption that if the Company ultimately were found not to have satisfied the REIT gross income
requirements for any of the taxable years between 2000 and 2003 as a result of certain
Barack Ferrazzano Kirschbaum & Nagelberg llp
First Industrial Realty Trust, Inc.
February 28, 2011
Page 2
February 28, 2011
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development
agreements entered into by the Company during those years, such failure was due to reasonable cause
and not due to willful neglect. Although we have made such inquiries as we have deemed necessary
for purposes of rendering this opinion, we have not made an independent investigation of all of the
facts set forth in the aforementioned documents, including, without limitation, the Registration
Statement and the Officers Certificate. We have consequently relied upon your representations
that the information presented in such documents or otherwise furnished to us accurately and
completely describes all material facts relevant to this opinion. We are not aware, however, of
any facts inconsistent with the statements and representations in the Officers Certificate.
Our opinion is based upon the current provisions of the Code, Treasury regulations promulgated
thereunder, current administrative rulings, judicial decisions, and other applicable authorities,
all as in effect on the date hereof. All of the foregoing authorities are subject to change or new
interpretation, both prospectively and retroactively, and such changes or interpretation, as well
as changes in the facts as they have been represented to us or assumed by us, could affect our
opinion. Our opinion is rendered only as of the date hereof and we undertake no responsibility to
update this opinion after this date. Our opinion does not foreclose the possibility of a contrary
determination by the Internal Revenue Service (the IRS) or by a court of competent jurisdiction,
or of a contrary position by the IRS or Treasury Department in regulations or rulings issued in the
future.
Based on the foregoing, and subject to the limitations, qualifications and exceptions set
forth herein, we are of the opinion that:
1. Commencing with the Companys initial taxable year ended December 31, 1994, the Company has
been organized and has operated in conformity with the requirements for qualification as a REIT
under the Code, and the Companys current and proposed method of operation (as represented by the
Company in the Officers Certificate) will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code; and
2. The discussion in the Registration Statement under the heading Certain U.S. federal income
tax considerations, to the extent that it constitutes statements of law, descriptions of statutes,
rules or regulations, or summaries of legal conclusions, has been reviewed by us and is correct in
all material respects.
The Companys qualification and taxation as a REIT depend upon the Companys ability to meet,
on a continuing basis, through actual annual operating and other results, the various requirements
under the Code and described in the Registration Statement with regard to, among other things, the
sources of its gross income, the composition of its assets, the level of its distributions to
stockholders, and the diversity of its stock ownership. Barack Ferrazzano Kirschbaum & Nagelberg
LLP undertakes no responsibility to, and will not, review the Companys compliance with these
requirements on a continuing basis. Accordingly, no
Barack Ferrazzano Kirschbaum & Nagelberg llp
First Industrial Realty Trust, Inc.
February 28, 2011
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February 28, 2011
Page 3
assurance can be given that the actual results
of the Companys operations for any particular taxable year will satisfy the requirements under the
Code for qualification and taxation of the Company as a REIT.
Other than as expressly stated above, we express no opinion on any issue relating to the
Company, the Operating Partnership, or any of their subsidiaries or any investment therein.
This opinion is being delivered to you solely for use in connection with the Registration
Statement as of the date hereof. This opinion is solely for the benefit of the above-named
addressee and may not be relied upon by any other person in any manner whatsoever without our prior
written permission. Notwithstanding the foregoing, we hereby consent to the reference to our firm
in the Registration Statement under the captions Certain U.S. federal income tax considerations
and Legal Matters and to the inclusion of this opinion as an exhibit to the Registration
Statement. Our consent to such reference does not constitute a consent under Section 7 of the Act
as in consenting to such reference we have not certified any part of the Registration Statement and
do not otherwise come within the categories of persons whose consent is required under Section 7 of
the Act or under the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Barack Ferrazzano Kirschbaum & Nagelberg LLP