SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: April 7, 1998
Date of earliest event reported: March 26, 1998
First Industrial, L.P.
(Exact name of registrant as specified in its charter)
Delaware 333-21873 36-3924586
(State or other (Reporting File (I.R.S. Employer
jurisdiction of organization) Number) Identification No.)
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 344-4300
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit
Number Exhibit
1.1 Underwriting Agreement, dated March 26, 1998, relating to 6 1/2% Dealer
remarketable securities due April 5, 2011, between First Industrial, L.P.
(the "Company"), J.P. Morgan Securities Inc., Donaldson, Lufkin & Jenrette
Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated
and UBS Securities LLC.
1.2 Remarketing Agreement, dated March 31, 1998, relating to the 6 1/2% Dealer
remarketable securities due April 5, 2011, between the Company and J.P.
Morgan Securities Inc.
4.1 Supplemental Indenture No. 4, dated as of March 26, 1998, between the
Company and First Trust National Association, relating to the 6 1/2% Dealer
remarketable securities due April 5, 2011
4.2 6 1/2% Dealer remarketable securities due April 5, 2011
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
By: /s/ Michael J. Havala
-----------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer,
Treasurer and Secretary
Date: April 6, 1998
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Exhibit Index
Exhibit
Number Exhibit
1.1 Underwriting Agreement, dated March 26, 1998, relating to 6 1/2% Dealer
remarketable securities due April 5, 2011, between First Industrial, L.P.
(the "Company"), J.P. Morgan Securities Inc., Donaldson, Lufkin & Jenrette
Securities Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated
and UBS Securities LLC.
1.2 Remarketing Agreement, dated March 31, 1998, relating to the 6 1/2% Dealer
remarketable securities due April 5, 2011, between the Company and J.P.
Morgan Securities Inc.
4.1 Supplemental Indenture No. 4, dated as of March 26, 1998, between the
Company and First Trust National Association, relating to the 6 1/2% Dealer
remarketable securities due April 5, 2011
4.2 6 1/2% Dealer remarketable securities due April 5, 2011
EXHIBIT 1.1
First Industrial, L.P.
$100,000,000 of 6 1/2% Dealer remarketable securitiessm* ("Drs.sm") due 2011
Underwriting Agreement
March 26, 1998
J.P. MORGAN SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
First Industrial, L.P., a Delaware limited partnership (the "Operating
Partnership"), by this agreement (the "Agreement") proposes to issue and sell to
the underwriters named in Schedule II hereto (collectively, the "Underwriters"),
the principal amount of its debt securities identified in Schedule I hereto (the
"Securities"), each as specified in Schedule I hereto, to be issued under the
indenture as supplemented by the fourth supplemental indenture thereto
(collectively, the "Indenture") between the Operating Partnership and First
Trust National Association, as trustee (the "Trustee").
The Operating Partnership and First Industrial Realty Trust, Inc., a
Maryland corporation and the sole general partner of the Operating Partnership
(the "Company"), have prepared and filed with the Securities and Exchange
Commission (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 (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company
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* "Dealer remarketable(sm)" securities" and "Drs.sm" are service marks of
J.P. Morgan Securities Inc.
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or the Operating Partnership, as the case may be. The Operating
Partnership 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 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" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus." The Basic Prospectus as
supplemented by any applicable Prospectus Supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus." Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or 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 Basic 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
Basic 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 Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
Each of the Company and the Operating Partnership hereby severally agrees
with the Underwriters as follows:
1. The Operating Partnership agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Operating Partnership the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto plus accrued interest, if any, from the
date specified in Schedule I hereto to the date of payment and delivery.
2. The Operating Partnership understands that the several Underwriters
intend (i) to make a public offering of their respective portions of the
Securities and (ii) initially to offer the Securities upon the terms set forth
in the Prospectus.
3. Payment for the Securities shall be made to the Operating Partnership or
to its order in immediately available funds on the date and at the time and
place set forth in Schedule I hereto (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 Operating Partnership may agree in
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writing). Such payment will be made upon delivery to, or to you for the
respective accounts of, 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 Operating
Partnership. 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 Securities are referred to herein as the "Closing Date." The Securities
will be delivered through the book entry facilities of The Depository Trust
Company ("DTC") and will be made available for inspection by you by 1:00 P.M.
New York City time on the Business Day prior to the Closing Date at such place
in New York City as you, DTC and the Operating Partnership shall agree.
4. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and the Closing
Date that:
(a) The Company and the Operating Partnership meet the requirements
for use of Form S-3, and the Registration Statement has been declared
effective by the Commission;
(b) The Registration Statement and the Prospectus, including the
financial statements, schedules and related notes included in the
Prospectus and, if applicable, any Term Sheet to 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
462(b) Registration Statement becomes effective or any amendment or
supplement to the Prospectus is filed with the Commission, did or will
comply in all material respects with all applicable provisions of the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (the "TIA") and will
contain all statements required to be stated therein in accordance with the
Securities Act and the TIA. The Prospectus, including the financial
statements, schedules and related notes included or incorporated by
reference in the Prospectus, and if applicable, any Term Sheet to the
Prospectus, as of the date hereof and at the time the Registration
Statement became effective, and at the Closing Date, and when any
post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement to
the Prospectus is filed with the Commission, did or will comply in all
material respects with all applicable provisions of the Securities Act and
the TIA and will contain all statements required to be stated therein in
accordance with the Securities Act and the TIA. 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 and on the Closing
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 or-
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der 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
and at the Closing 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
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 4(b) do not apply to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility and Qualification under the TIA (the "Form T-1"), and (ii) any
statements or omissions made in reliance on and in conformity with
information relating to any Underwriter 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
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);
(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; 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 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 and as of the Closing Date, or during the period specified
in Section 5(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 fore-
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going representations and warranties in this Section 4(d) do not apply to
the Form T-1 or to any statements or omissions made in reliance on and in
conformity with information relating to any Underwriter 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;
(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 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
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services, L.P. ("DSG") and First Industrial
Pennsylvania Partnership, L.P. ("FIP") (the Financing Partnership,
Securities, L.P., the Mortgage Partnership, FII, FIH, DSG 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. F.R. Development Services, L.L.C. ("FRDS") has been duly
organized and is validly existing as a limited liability corporation in
good standing under and by virtue of the laws of its jurisdiction of
organization. Each of First Industrial Securities Corporation ("FISC"),
First Industrial Finance Corporation ("FIFC"), First Industrial Mortgage
Corporation ("FIM"), First Industrial Pennsylvania Corporation ("FIPC"),
First Industrial Indianapolis Corporation ("FIIC"), First Industrial
Harrisburg Corporation ("FIHC"), FI Development Services Corporation
("FIDSC"), FR Acquisitions, Inc. ("FRA") and First Industrial Management
Corporation ("FIMC," and together with FISC, FIFC, FIM, FIPC, FIIC, FIHC,
FIDSC and FRA 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"),
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
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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. FIDSC is
a wholly-owned subsidiary of the Company and is the sole general partner of
DSG. FRDS 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 Company, the Operating
Partnership and each of the Subsidiaries has, and at the Closing Date will
have, full corporate or partnership power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate
all the properties and other assets owned, leased or operated by it and to
conduct its business in which it engages or proposes to engage as described
in the Registration Statement or the Prospectus and the transactions
contemplated hereby and thereby. The Company and each of the Corporate
Subsidiaries is, and at the Closing Date will be, duly qualified or
registered to do business and in good standing as a foreign corporation in
all jurisdictions in which the nature of the activities conducted by it or
the character of the properties and assets owned, leased or operated by it
makes such qualification or registration necessary, except where failure to
obtain such qualifications or registration will not have a material adverse
effect on (i) the condition, financial or otherwise, or the earnings,
assets or business affairs or prospects of the Operating Partnership,
Company and their Subsidiaries, taken as a whole or on the 493 in service
properties owned, directly or indirectly, by the Company as of September
30, 1997, (the "Properties") taken as a whole, (ii) the issuance, validity
or enforceability of the Securities or the enforceability of the Indenture
or (iii) the consummation of any of the transactions contemplated by this
Agreement and/or the Indenture (each a "Material Adverse Effect"), which
jurisdictions of foreign qualification or registration are attached on
Schedule IV hereto. The Operating Partnership and each of the Partnership
Subsidiaries is, and at the 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 qualifications or registration will not have a Material
Adverse Effect, which jurisdictions of foreign qualification or
registration are attached on Schedule IV 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 the Underwriters or their
counsel have been delivered to the Underwriters or their counsel;
(f) The Securities have been duly authorized by the Company, as
general partner of the Operating Partnership, and, when authenticated and
delivered by the Trustee in accordance with the terms of the Indenture, and
paid for by the Under-
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writers pursuant to this Agreement, such Securities will be valid and
legally binding unsecured obligations of the Operating Partnership entitled
to the benefit of the Indenture and enforceable against the Operating
Partnership in accordance with their respective terms, subject to (i) the
effect of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors and (ii) the effect of
general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before
which any proceeding therefor may be brought; the Indenture has been duly
qualified under the Trust Indenture Act and prior to the issuance of the
Securities will be duly authorized, executed and delivered by the Operating
Partnership and the Company, and assuming due authorization, execution and
delivery thereof by the Trustee, will constitute a valid and legally
binding obligation of the Operating Partnership and the Company,
enforceable in accordance with its terms subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; the Securities will conform, and the
Indenture will conform, to the statements relating thereto contained in the
Prospectus; and the Securities are in the form contemplated by the
Indenture;
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as general partner and a limited partner and the partnership
agreement of each Partnership Subsidiary will have been duly authorized,
validly executed and delivered by each partner thereto and (assuming in the
case of the Operating Partnership the due authorization, execution and
delivery of the partnership agreement by each limited partner other than
the Company) each such partnership agreement will be a valid, legally
binding and enforceable in accordance with its terms immediately following
the 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 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
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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);
(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 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 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 ratio of earnings to fixed
charges included in the Prospectus and in Exhibit 12 to the Registration
Statement have 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 Act or the Exchange Act to be
included in the Registration Statement or the Prospectus. Coopers & Lybrand
L.L.P. (the "Accountants") who have reported on such financial statements,
schedules and related notes, are independent public accountants 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
Closing Date,
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(i) there has not been and will not have been, except as set forth in or
contemplated by the Registration Statement and the Prospectus, any change
in the capitalization, long term or short term debt or in the capital stock
or equity of each of the Operating Partnership and the Company or any of
the Subsidiaries which would be material to the Operating Partnership, the
Company 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 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
Prospectus, 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 (the "Common
Stock"), and the dividends on the shares of the Company's (a) Series A
Cumulative Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), (b) Depositary Shares each representing 1/100 of a share
of 8 3/4 Series B Cumulative Preferred Stock (the "Series B Preferred
Stock"), (c) Depositary Shares each representing 1/100 of a share of 8_
Series C Cumulative Preferred Stock (the "Series C Preferred Stock"), (d)
Depositary Shares each representing 1/100 of a share of 7.95% Series D
Cumulative Preferred Stock (the "Series D Preferred Stock") and (e)
Depositary Shares each representing 1/100 of a share of 7.90% Series E
Cumulative Preferred Stock (the "Series E 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
Units, the Operating Partnership has not paid any distributions of any kind
on its Units;
(j) Neither the Operating Partnership, the Company nor any of the
Subsidiaries is, or as of the Closing Date will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
(k) To the knowledge of the Company or the Operating Partnership,
except as set forth in the Registration Statement 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;
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(l) The Operating Partnership, the Company and each of the
Subsidiaries (i) has, and at the 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
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 the Closing Date will not be,
in breach of or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture, note
agreement, lease, contract, joint venture or partnership agreement or other
agreement or instrument (collectively, a "Contract or Other Agreement") or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of
its other assets or properties or by which the Properties are bound or
affected, except where such default, breach or failure will not, either
singly or in the aggregate, have a Material Adverse Effect. To the
knowledge of the Operating Partnership, the Company and each of the
Subsidiaries, after due inquiry, no other party under any Material contract
or other agreement to which it is a party is in default thereunder, except
where such default will not have a Material Adverse Effect. Neither the
Operating Partnership, the Company nor any of the Subsidiaries is, nor at
the Closing Date will any of them be, in violation of any provision of its
articles of incorporation, by-laws, certificate of limited partnership,
partnership agreement or other organizational document, as the case may be;
(m) No Material consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body or any
other entity is required in connection with the offering, issuance or sale
of the Securities hereunder except such as have been obtained under the
Securities Act, the Exchange Act and the TIA and such as may be required
under state securities, Blue Sky or real estate syndication laws or the
by-laws, the corporate financing rule or the conflict of interests rule of
the National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution by the Underwriters of the
Securities or such as have been received prior to the date of this
Agreement, and except for the filing of this Agreement and the Indenture
with the Commission as exhibits to a Form 8-K, which the Operating
Partnership and the Company agree to make in a timely manner;
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement and the
Remarketing Agreement between the Operating Partnership and J.P. Morgan
Securities Inc., as remarketing dealer with respect to the Purchased
Securities (as defined therein) (the "Remarketing Agreement"). Each of this
Agreement and the Remarketing Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, constitutes a valid and binding agree-
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<PAGE>
ment of the Company and the Operating Partnership and assuming due
authorization, execution and delivery by the Underwriters (in the case of
this Agreement) and J.P. Morgan Securities Inc. (in the case of the
Remarketing Agreement), is enforceable against the Operating Partnership in
accordance with the terms hereof and thereof subject to (i) the effect of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
the rights and remedies of creditors and (ii) the effect of general
principles of equity, whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any
proceeding therefor may be brought. The execution, delivery and performance
of this Agreement, the Remarketing Agreement and the Indenture and the
consummation of the transactions contemplated hereby and thereby, and
compliance by each of the Company, the Operating Partnership and the
Subsidiaries with its obligations hereunder and thereunder, will not result
in the creation or imposition of any lien, charge or encumbrance upon any
of the assets or properties of the Operating Partnership, the Company or
any of the Subsidiaries pursuant to the terms or provisions of, or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate
any of its obligations under, or result in the acceleration of any
obligation under, the certificate of incorporation, by-laws, certificate of
limited partnership, partnership agreement or other organizational
documents of the Operating Partnership, the Company or any of the
Subsidiaries, any Contract or Other Agreement to which the Operating
Partnership, the Company or any of the Subsidiaries is a party or by which
the Operating Partnership, the Company or any of the Subsidiaries or any of
their assets or properties are bound or affected, or violate or conflict
with any judgment, ruling, decree, order, statute, rule or regulation of
any court or other governmental agency (foreign or domestic) or body
applicable to the business or properties of the Operating Partnership, the
Company or any of the Subsidiaries or to the Properties, in each case
except for liens, charges, encumbrances, breaches, violations, defaults,
rights to terminate or accelerate obligations, or conflicts, the imposition
or occurrence of which would not have a Material Adverse Effect;
(o) As of the Closing Date, the Operating Partnership, the Company and
each of the Subsidiaries will have good and marketable title to all
properties and assets described in the Prospectus as owned by it, free and
clear of all liens, encumbrances, claims, security interests and defects,
except such as are described in the Registration Statement or the
Prospectus, or such as secure the Company's loan facilities of the
Operating Partnership, the Company and the Subsidiaries, or would not
result in a Material Adverse Effect;
(p) To the knowledge of the Company and the Operating Partnership: (i)
no lessee of any portion of the Properties is in default under any of the
leases governing such Properties and there is no event which, but for the
passage of time or
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<PAGE>
the giving of notice, or both, would constitute a default under any of such
leases, except in each case such defaults that would not have a Material
Adverse Effect; (ii) the current use and occupancy of each of the
Properties complies in all material respects with all applicable codes and
zoning laws and regulations, except for such failures to comply which would
not individually or in the aggregate have a Material Adverse Effect; and
(iii) there is no pending or threatened condemnation, zoning change,
environmental or other proceeding or action that will in any material
respect affect the size of, use of, improvements on, construction on, or
access to the Properties except such proceedings or actions that would not
have a Material Adverse Effect;
(q) The Operating Partnership, the Company and the Partnership
Subsidiaries have property, title, casualty and liability insurance in
favor of the Operating Partnership, the Company or the Partnership
Subsidiaries with respect to each of the Properties, in an amount and on
such terms as is reasonable and customary for businesses of the type
conducted by the Operating Partnership, the Company and the Partnership
Subsidiaries except in such instances where the tenant is carrying such
insurance or the tenant is self-insuring such risks;
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (i) to the knowledge of the Operating Partnership, the Company and
the Subsidiaries, after due inquiry, the operations of the Operating
Partnership, the Company and the Subsidiaries are in compliance with all
Environmental Laws (as defined below) and all requirements of applicable
permits, licenses, approvals and other authorizations issued pursuant to
Environmental Laws; (ii) to the knowledge of the Operating Partnership, the
Company and the Subsidiaries, after due inquiry, none of the Operating
Partnership, the Company or the Subsidiaries has caused or suffered to
occur any Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from any
Property, and no condition exists on, in, under or adjacent to any Property
that could reasonably be expected to result in the incurrence of
liabilities under, or any violations of, any Environmental Law or give rise
to the imposition of any Lien (as defined below), under any Environmental
Law; (iii) none of the Operating Partnership, the Company or the
Subsidiaries has received any written notice of a claim under or pursuant
to any Environmental Law or under common law pertaining to Hazardous
Substances on, in, under or originating from any Property; (iv) none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
of, or received any written notice from any Governmental Authority (as
defined below) claiming, any violation of any Environmental Law or a
determination to undertake and/or request the investigation, remediation,
clean-up or removal of any Hazardous Substance released into the
Environment on, in, under or from any Property; and (v) no Property is
included or, to the knowledge of the Operating Partnership, the Company or
the
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<PAGE>
Subsidiaries, after due inquiry, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA"), or included on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that any Property has otherwise been identified in a published writing by
the EPA as a potential CERCLA removal, remedial or response site or, to the
knowledge of the Company and its Subsidiaries, is included on any similar
list of potentially contaminated sites pursuant to any other Environmental
Law;
As used herein, "Hazardous Substance" shall include any hazardous
substance, hazardous waste, toxic substance, pollutant or hazardous
material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCB's, pesticides, explosives, radioactive materials, dioxins,
urea formaldehyde insulation or any constituent of any such substance,
pollutant or waste which is subject to regulation under any Environmental
Law (including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49 C.F.R.
ss. 172.101, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 302); "Environment" shall mean any surface
water, drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss.
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), and all other
federal, state and local laws, ordinances, regulations, rules and orders
relating to the protection of the environment or of human health from
environmental effects; "Governmental Authority" shall mean any federal,
state or local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law; "Lien"
shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such Property;
and "Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating or
disposing of any Hazardous Substance into the Environment, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or other
receptacles containing or previously containing and containing a residue of
any Hazardous Substance.
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<PAGE>
None of the environmental consultants which prepared environmental and
asbestos inspection reports with respect to any of the Properties was
employed for such purpose on a contingent basis or has any substantial
interest in the Operating Partnership, the Company or any of the
Subsidiaries, and none of them nor any of their directors, officers or
employees is connected with the Operating Partnership, the Company or any
of the Subsidiaries as a promoter, selling agent, voting trustee, director,
officer or employee.
(s) The Company, the Operating Partnership and the Subsidiaries are
organized and operate in a manner so as to qualify as a real estate
investment trust ("REIT") under Sections 856 through 860 of the Code, as
amended (the "Code"), and have elected to be taxed as a REIT under the Code
commencing with the taxable year ending December 31, 1994. The Company, the
Operating Partnership and the Subsidiaries intend to continue to qualify as
a REIT for the foreseeable future;
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, except for the filing of this Agreement and
the Indenture with the Commission as exhibits to a Form 8-K, which the
Company agrees to make in a timely manner, and the descriptions thereof or
references thereto are accurate in all material respects;
(u) None of the Operating Partnership, the Company or any of the
Subsidiaries is involved in any labor dispute nor, to the knowledge of the
Operating Partnership, the Company or the Subsidiaries, after due inquiry,
is any such dispute threatened which would be Material;
(v) The Operating Partnership, the Company and the Subsidiaries own,
or are licensed or otherwise have the full exclusive right to use, all
material trademarks and trade names which are used in or necessary for the
conduct of their respective businesses as described in the Prospectus. To
the knowledge of the Company or the Operating Partnership, no claims have
been asserted by any person to the use of any such trademarks or trade
names or challenging or questioning the validity or effectiveness of any
such trademark or trade name. The use, in connection with the business and
operations of the Operating Partnership, the Company and the Subsidiaries,
of such trademarks and trade names does not, to the Company's or the
Operating Partnership's knowledge, infringe on the rights of any person;
(w) Each of the Operating Partnership, the Company and the
Subsidiaries has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in which
the failure to so file would not result in a Material Adverse Effect) and
has paid all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the fore-
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<PAGE>
going would otherwise be delinquent, except, in all cases, for any such
tax, assessment, fine or penalty that is being contested in good faith and
except in any case in which the failure to so pay would not result in a
Material Adverse Effect;
(x) The Operating Partnership and each of the Partnership Subsidiaries
is properly treated as a partnership for federal income tax purposes and
not as a "publicly traded partnership";
(y) No relationship, direct or indirect, exists between or among the
Company, the Operating Partnership or the Subsidiaries on the one hand, and
the directors, officers, stockholders, customers or suppliers of the
Company, the Operating Partnership or the Subsidiaries on the other hand,
which is required by the Securities Act to be described in the Registration
Statement and the Prospectus which is not so described;
(aa) The Company and the Operating Partnership have not taken and will
not take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of
the price of the Securities, and the Company and the Operating Partnership
have not distributed and have agreed not to distribute any prospectus or
other offering material in connection with the offering and sale of the
Securities other than the Prospectus, any preliminary prospectus filed with
the Commission or other material permitted by the Securities Act (which
were disclosed to you and your counsel);
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets, financial and corporate books and records is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(cc) Any certificate or other document signed by any officer or
authorized representative of the Operating Partnership, the Company or any
Subsidiary, and delivered to the Underwriters or to counsel for the
Underwriters in connection with the sale of the Securities shall be deemed
a representation and warranty by such entity or person, as the case may be,
to each Underwriter as to the matters covered thereby;
(dd) The Securities will have an investment grade rating from one or
more nationally recognized statistical rating organization at each
applicable Representation Date as specified in Schedule I hereto; and
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<PAGE>
(ee) The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
issued and no proceeding for that purpose has been instituted, or to the
knowledge of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction. No
order preventing or suspending the use of the Prospectus or any preliminary
prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any jurisdiction.
5. Each of the Company and the Operating Partnership covenants and agrees
with each Underwriter as follows:
(a) In respect of the offering of the Securities, the Operating
Partnership will (i) prepare a Prospectus Supplement setting forth the
aggregate principal amount of Securities covered thereby and their terms
not otherwise specified in the Basic Prospectus pursuant to which the
Securities are being issued, the names of the Underwriters participating in
the offering and the aggregate principal amount of Securities which each
severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Operating
Partnership, the initial public offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters and the
Operating Partnership deem appropriate in connection with the offering of
the Securities, (ii) file the Prospectus in a form approved by you pursuant
to Rule 424 under the Securities Act no later than the Commission's close
of business on the second Business Day following the date of determination
of the offering price of the Securities and (iii) furnish copies of the
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;
(b) The Operating Partnership will comply with the Securities Act and
the Exchange Act so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Registration
Statement and the Prospectus. At any time when the Prospectus is required
to be delivered under the Securities Act or the Exchange Act in connection
with sales of Securities, the Operating Partnership 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-
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<PAGE>
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
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. The Operating Partnership 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 Operating Partnership will
make every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time;
(c) The Operating Partnership will furnish to you without charge, one
signed copy of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits and
documents incorporated by reference, and to furnish to you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it and document 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 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
Securities, 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 or any Term Sheet, if applicable, 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, Term Sheet, 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 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) 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
Securities, any event shall occur as a result of which, in the opinion of
counsel for the Underwrit-
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<PAGE>
ers, 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 Operating Partnership 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 you shall specify, such
number of copies thereof as such Underwriter or dealers may reasonably
request;
(f) The Operating Partnership will use its 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 Operating Partnership
will not be required to qualify as a foreign limited partnership, 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 partnership agreement that the general partner of the
Operating Partnership reasonably determines to be contrary to the best
interests of the Operating Partnership and its unitholders. In each
jurisdiction in which the Securities have been so qualified or registered,
the Operating Partnership 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 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 Operating Partnership will not be
required to qualify as a foreign limited partnership, 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 partnership agreement that the general partner of the Operating
Partnership reasonably determines to be contrary to the best interests of
the Operating Partnership and its unitholders;
(g) To make generally available to the holders of the Securities as
soon as reasonably practicable but not later than sixty days after the
close of the period covered thereby (ninety days in the event the close of
such period is the close of the Operating Partnership's fiscal year), an
earnings statement (in form complying with
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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 ninety days 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 Operating
Partnership under the Exchange Act covering the period when such earnings
statement is released;
(h) During the period of five years after the date of this Agreement,
the Company and the Operating Partnership will furnish to you as soon as
available (x) a copy of each regular and periodic report, financial
statement or other publicly available information of the Operating
Partnership, the Company and any Subsidiary mailed to the holders of the
Securities or filed with the Commission or any securities exchange and (y)
such other publicly available information concerning the Operating
Partnership, the Company and any Subsidiary as you may reasonably request;
(i) 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 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;
(j) The Operating Partnership 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), each preliminary
prospectus, the Prospectus and all amendments and supplements to any of
them prior to or during the period specified in Section 5(e), (ii) the
printing and delivery of this Underwriting Agreement, the Indenture, the
Remarketing Agreement, any Supplemental Indentures and the Blue Sky
Memorandum, (iii) the qualification or registration of the Securities for
offer and sale under certain limited securities, Blue Sky or real estate
syndication laws of certain states in accordance with Section 5(f) hereof,
(iv) the fee of and the filings and clearance, if any, with the NASD in
connection with the Offering, (v) the fees charged by nationally recognized
statistical rating organizations for the rating of the Securities, (vi)
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
Securities by the Underwriters or by dealers to whom Securities may be
sold, (vii) the preparation, issuance and delivery of certificates for the
Securities to the Underwriters, (viii) the costs and charges of any
transfer agent or registrar, (ix) the costs and expenses of the Trustee
under the Indenture, (x) any expenses incurred by the Operating Partnership
in connection with a "road show" presentation to potential investors, (xi)
any transfer taxes imposed on the sale by the Operating Partnership of the
Securities to
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the Underwriters and (xii) the fees and disbursements of the Operating
Partnership's counsel and accountants;
(k) The Operating Partnership will use its best efforts to do and
perform all things required to be done and performed under this Agreement
by the Operating Partnership prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Securities;
(l) The Operating Partnership will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus
Supplement under "Use of Proceeds";
(m) The Operating Partnership will prepare and file or transmit for
filing with the Commission in accordance with Rule 424(b) of the Securities
Act copies of the Prospectus;
(n) The Operating Partnership 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 Operating Partnership's general partner determines that it is no
longer in the best interests of the Operating Partnership to be so
qualified;
(o) To take all reasonable action necessary to enable Standard &
Poor's Corporation ("S&P"), Moody's Investors Service, Inc ("Moody's"),
Fitch Investors Services, L.P. or any other nationally recognized rating
organization to provide their respective credit ratings of the Securities,
as specified in Schedule I hereto; and
(p) The Operating Partnership and the Company will execute a
supplemental indenture (a "Supplemental Indenture") designating each series
of debt securities to be offered and its related terms and provisions in
accordance with the provisions of the Indenture.
6. The several obligations of the Underwriters hereunder shall be subject
to the performance by the Company and the Operating Partnership of their
respective obligations hereunder and to the following conditions:
(a) the Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus shall have
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by such Rule; no stop
order suspending the effectiveness of the Registration
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Statement or the Prospectus shall be in effect, and no proceedings for such
purpose shall have been commenced or shall be pending before or threatened
by the Commission to the knowledge, after due inquiry, of the Company or
the Operating Partnership; no stop order suspending the effectiveness of
the Registration Statement or the Prospectus shall be in effect and no
proceedings for such purpose shall have been commenced or shall be pending
before or threatened by the state securities authority of any jurisdiction,
to the knowledge of the Company or the Operating Partnership; and all
requests for additional information on the part of the Commission shall
have been complied with to your satisfaction;
(b) all the representations and warranties of the Company and the
Operating Partnership contained in this Agreement shall be true and
correct, in all material respects, on the Closing Date, with the same force
and effect as if made on and as of the Closing Date and the Company and the
Operating Partnership shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate an
improvement, in the rating accorded any securities of or guaranteed by the
Company or the Operating Partnership by any "nationally recognized
statistical rating organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus there shall not have been any
material change in the capital stock, partners' equity or long-term debt of
the Company, the Operating Partnership or any of the Subsidiaries on a
consolidated basis, except as described or contemplated in the Prospectus,
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, properties, financial position, stockholders'
equity, partners' equity or results of operations of the Company, the
Operating Partnership and the Subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus, the effect of which in
your judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities on the terms and in the
manner contemplated in the Prospectus and/or the Indenture; and other than
as set forth in the Prospectus, no proceedings shall be pending or, to the
knowledge of the Company or the Operating Partnership, after due inquiry,
threatened against the Operating Partnership or the Company or any Property
before or by any federal, state or other commission, board or
administrative agency, where an unfavorable decision, ruling or finding
could reasonably be expected to result in a Material Adverse Effect;
(e) you shall have received on and as of the Closing Date a
certificate signed by the Chairman of the Board of Directors or President
or Chief Executive Officer of the Company and the Chief Financial or
Accounting Officer of the Company, in their capacities as officers of the
Company, on behalf of the Company for
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itself and as general partner of the Operating Partnership, satisfactory to
you to the effect set forth in subsections (a) through (d) of this Section
and to the further effect that there has not occurred any material adverse
change, or any development involving a prospective material adverse change,
in or affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity, partners' equity or
results of operations of the Operating Partnership, the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f) you shall have received on the Closing Date, an opinion or
opinions (satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Cahill Gordon & Reindel, counsel for the Company and the
Operating Partnership, to the effect that:
(i) The Company is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule IV hereto. Each
of FIFC and FISC is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule IV hereto.
(ii) The Operating Partnership and each of the Financing
Partnership and Securities, L.P. has been duly formed and is validly
existing as a limited partnership in good standing under the laws of
its state of organization. The Operating Partnership and each of the
Financing Partnership and Securities, L.P. has all requisite
partnership power and authority to own, lease and operate its
properties and other assets, to conduct the business in which it is
engaged and proposes to engage, in each case, as described in the
Prospectus, and the Operating Partnership has the partnership power to
enter into and perform its obligations under this Agreement and the
Indenture. The Operating Partnership and each of the Financing
Partnership and Securities, L.P. is duly qualified or registered as a
foreign partnership and is in good standing in each jurisdiction
identified with an asterisk in Schedule IV hereto.
(iii) Intentionally omitted.
(iv) To the knowledge of such counsel, none of the Company, the
Operating Partnership, the Financing Partnership, Securities, L.P.,
FIFC or FISC is in violation of or default under its charter, by-laws,
certificate of limited partnership or partnership agreement, as the
case may be, and none of such entities is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any document (as in effect on the date of such
opinion) listed as an exhibit to the Registration Statement, each of
the
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Company's and the Operating Partnership's Annual Report on Form 10-K,
as amended, if applicable, and each of the Company's and the Operating
Partnership's most recent Quarterly Report on Form 10-Q, as amended,
if applicable, to which such entity is a party or by which such entity
may be bound, or to which any of the property or assets of such entity
or any Property is subject to or bound by (it being understood that
(i) such counsel need express no opinion with respect to matters
relating to any contract, indenture, mortgage, loan agreement, note
lease, joint venture or partnership agreement or other instrument or
agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document), except in each case for violations or defaults which in the
aggregate are not reasonably expected to have a Material Adverse
Effect.
(v) This Agreement was duly and validly authorized, executed and
delivered by each of the Company and the Operating Partnership.
(vi) The Remarketing Agreement has been duly authorized, executed
and delivered by the Operating Partnership and constitutes a valid and
legally binding instrument of it enforceable against it in accordance
with its terms, except that the enforceability thereof may be limited
by or subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally, (b)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) the
enforceability of rights in indemnity and contribution thereunder may
be limited by federal or state securities laws or principles of public
policy.
(vii) The issuance of the Securities has been duly authorized by
the Company on behalf of the Operating Partnership, and when executed
and authenticated by the Trustee in accordance with the terms of the
Indenture, and delivered to, and paid for by, the Underwriters in
accordance with the terms of this Agreement, such Securities will
constitute valid and legally binding obligations of the Operating
Partnership entitled to the benefits provided for in the Indenture,
enforceable against the Operating Partnership in accordance with their
terms.
(viii) The Indenture has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership
and assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and legally binding agreement of the
Company and the Operating Partnership, enforceable against the Company
and the Operating Partnership in ac-
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cordance with its terms; and the Indenture has been duly qualified
under the TIA.
(ix) The Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus under the captions "Description of Drs." and
"Description of Debt Securities."
(x) The Registration Statement has been declared effective under
the Securities Act and the Indenture has been qualified under the TIA,
the Prospectus was filed with the Commission pursuant to Rule 424
within the applicable time period prescribed by Rule 424 and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or the Prospectus has been issued and no
proceeding for that purpose is pending or threatened by the
Commission.
(xi) The execution and delivery of this Agreement, the Indenture
and the Remarketing Agreement, the issuance and sale of the Securities
and the performance by the Company and the Operating Partnership of
their respective obligations under the Securities, this Agreement, the
Indenture and the Remarketing Agreement and the consummation of the
transactions herein and therein contemplated will not require, to such
counsel's knowledge, any consent, approval, authorization or other
order of any court, regulatory body, administrative agency or other
governmental body (except such as may be required under the Securities
Act, the TIA and the state securities, Blue Sky or real estate
syndication laws in connection with the purchase and distribution of
the Securities by the Underwriters) and did not and do not conflict
with or constitute a breach or violation of or default under: (1) any
document (as in effect on the date of such opinion) listed as an
exhibit to the Registration Statement, each of the Company's and the
Operating Partnership's Annual Report on Form 10-K, as amended, if
applicable, and each of the Company's and the Operating Partnership's
most recent Quarterly Report on Form 10-Q, as amended, if applicable,
to which any such entity is a party or by which it or any of them or
any of their respective properties or other assets may be bound or
subject and of which such counsel is aware (it being understood that
(i) such counsel need express no opinion with respect to matters
relating to any contract, indenture, mortgage, loan agreement, note
lease, joint venture or partnership agreement or other instrument or
agreement relating to the acquisition, transfer, operation,
maintenance, management or financing of any property or assets of such
entity or any other Property and (ii) such counsel may assume
compliance with the financial covenants contained in any such
document); (2) the certificate of limited partnership or partnership
agreement, as the case may be, of the Operating Partnership, the
Financing Partnership, and Securities, L.P. or the articles of
incorporation or bylaws, as the case may be, of the Company, FIFC or
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FISC; (3) any applicable law, rule or administrative regulation,
except in each case for conflicts, breaches, violations or defaults
that in the aggregate would not have a Material Adverse Effect.
(xii) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any court or governmental
authority or agency or any other entity is required in connection with
the offering, issuance or sale of the Securities hereunder, except
such as may be required under the Securities Act, the TIA or the
by-laws, corporate financing rule and conflict of interest rule of the
NASD, or state securities, blue sky or real estate syndication laws,
or such as have been received prior to the date of such opinion.
(xiii) The Registration Statement, at the time it became
effective and the Prospectus, as of the date of the Prospectus
Supplement (in each case, other than the Form T-1 and the financial
statements and supporting schedule and other financial and statistical
data included or incorporated by reference therein, as to which no
opinion need be rendered), complied as to form in all material
respects with the requirements of the Securities Act and the Exchange
Act.
(xiv) Each of the Underwriters is receiving good, valid and
marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities if the Underwriters acquire such Securities in good faith and
without notice of any such security interests, mortgages, pledges,
liens, encumbrances, claims or equities.
(xv) Intentionally omitted.
(xvi) To such counsel's knowledge, there is no document or
contract of a character required to be described or referred to in the
Registration Statement and Prospectus or to be filed as exhibits
thereto by the Securities Act other than those described or referred
to therein or filed as exhibits thereto, and the descriptions thereof
or references thereto are accurate in all material respects.
(xvii) The partnership agreement of each of the Operating
Partnership, Securities, L.P. and the Financing Partnership has been
duly authorized, validly executed and delivered by each of the Company
and the Subsidiaries, to the extent they are parties thereto, and is
valid, legally binding and enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and of general principles
of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
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<PAGE>
(xviii) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on
Form S-3 under the Act.
(xix) None of the Company, the Corporate Subsidiaries or the
Partnership Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
In addition, Cahill Gordon & Reindel shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and permit the Underwriters to rely on such opinion as if it were
addressed to the Underwriters.
In addition, Cahill Gordon & Reindel shall state that it has participated
in conferences with officers and other representatives of the Company, the
Operating Partnership and the Subsidiaries, representatives of the independent
public accountants for the Company and the Operating Partnership and the
Subsidiaries and representatives of the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed. On the basis thereof, but without independent verification by such
counsel of, and without passing upon or assuming any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or any amendments or supplements
thereto, no facts have come to the attention of such counsel that lead them to
believe that (i) the Registration Statement, including the documents
incorporated therein by reference, at the time such Registration Statement
became effective, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or (ii) the Prospectus, as of its
date or at the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements, schedules and other financial
and statistical data included in the Registration Statement or the Prospectus or
the Form T-1).
In giving its opinion, such counsel may rely (i) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Operating Partnership,
the Corporate Subsidiaries and the Partnership Subsidiaries, (ii) as to matters
of Maryland law, on the opinion of McGuire, Woods, Battle & Boothe, L.L.P.,
Baltimore, Maryland, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, (iii) as to matters of Illinois
law, on the opinion of Barack Ferrazzano Kirschbaum, Perlman & Nagelberg,
Chicago, Illinois, which opinion shall be in form and substance reasonably
satisfactory to counsel for the Underwriters, and (iv) as to the good standing
and qualification of the Company, the Operating Partnership, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate government officials or opinions
of counsel in such jurisdictions. Counsel need express no opinion (A) as to the
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<PAGE>
enforceability of forum selection clauses in the federal courts or (B) with
respect to the requirements of, or compliance with, any state securities or
"Blue Sky" or real estate syndication laws;
(g) You shall have received on the Closing Date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of McGuire, Woods, Battle & Boothe, L.L.P., special
Maryland counsel for the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its respective jurisdiction of
incorporation.
(ii) Each of the Company and the Corporate Subsidiaries has
corporate power and authority to own, lease and operate its
properties and other assets and to conduct the business in which
it is engaged or proposes to engage, in each case, as described
in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this
Agreement and the Indenture.
(iii) The issuance of Securities have been duly authorized
by the Company on behalf of the Operating Partnership.
(iv) Each of this Agreement, the Indenture and the
Remarketing Agreement was duly and validly authorized, executed
and delivered by the Company, on behalf of itself and the
Operating Partnership.
(v) The execution and delivery of this Agreement and the
Indenture, the performance of the obligations and the
consummation of the transaction set forth herein and therein by
the Company will not require, to the knowledge of such counsel,
any consent, approval, authorization or other order of any
Maryland court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
Securities Act or other securities laws) and did not and do not
conflict with or constitute a breach or violation of or default
under: (A) the charter or by-laws, as the case may be, of the
Company; and (B) any applicable Maryland law, rule or
administrative regulation or any order or administrative or court
decree of which such counsel is aware, except in each case for
conflicts, breaches, violations or defaults that in the aggregate
would not have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material
authorization, approval, consent or order of any Maryland court,
governmental authority, agency or other entity is required in
connection with the offering, issuance or
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<PAGE>
sale of the Securities hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication
laws.
(vii) The information in the Prospectus under "Description
of Debt Securities," "Certain Provisions of Maryland Law and The
Company's Articles of Incorporation and Bylaws" and "Restrictions
on Transfers of Capital Stock" and in Part II of the Registration
Statement under Item 15, to the extent that it constitutes
statements of law, descriptions of statutes, rules or
regulations, summaries of documents or legal conclusions, has
been reviewed by such counsel and, as to Maryland law, is correct
in all material respects and presents fairly the information
required to be disclosed therein.
(viii) The Company and each of the Corporate Subsidiaries
was authorized to enter into the partnership agreement of each
Partnership Subsidiary for which the Company or such Corporate
Subsidiary, as the case may be, is the general partner.
(h) You shall have received on the Closing date, an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Barack Ferrazzano Kirschbaum Perlman & Nagelberg,
special Illinois counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company,
FRA, the Operating Partnership, FIMC, the Mortgage Partnership,
FIH, FII, FIHC and FIIC is in violation of, or default in
connection with the performance or observance of any obligation,
agreement, covenant or condition contained in any or all of (A)
the consummation of (1) a certain revolving credit facility made
available to the Operating Partnership by The First National Bank
of Chicago and Union Bank of Switzerland, New York Branch
("UBS"), on behalf of themselves and as agents for various
co-lenders; and (2) a certain mortgage loan made available to the
Mortgage Partnership by Nomura Asset Capital Corporation; (B) the
assumption by the Operating Partnership of a certain mortgage
loan from PFL Life Insurance Company made available to Fourth
Brookville Associates Limited Partnership; (C) the assumption by
the Operating Partnership of a certain loan from Monumental Life
Insurance Company made available to Lincoln Center Associates
Limited Partnership; (D) the assumption by the Operating
Partnership of a certain loan from Sun Life Assurance Company of
Canada made available to Sealy James Park, L.L.C.; (E) the
assumption by the Operating Partnership of a certain mortgage
loan from American National Insurance Company made available to
American National Bank and Trust Company of Chicago, as Trustee
under Trust No. 113913-07; (F) the assumption by the Operating
Partnership of a certain mortgage loan from State Street Bank and
Trust Company, as Trustee for Holders of Commercial Mortgage
Pass-Through Certificates, acting by
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<PAGE>
and through Lutheran Brotherhood, its duly authorized
Attorney-in-Fact, made available to Walglen Investments Limited;
(G) the origination of a certain mortgage loan made available to
the Operating Partnership and Indianapolis, L.P. by Connecticut
General Life Insurance Company; and (H) the acquisition of
property by the Operating Partnership subject to a certain
mortgagee loan from Smithkline Beecham Clinical Laboratories,
Inc. made available to 290 Industrial Co., LLC (all such
indebtedness referenced in (A) through (H), collectively, the
"Credit Documents") and (b) various pending agreements of
purchase and sale into which FR Acquisitions, Inc. has entered
into for the purchase of certain real properties (collectively,
the "Pending Contracts"), except in each case for defaults that,
in the aggregate, are not reasonably expected to have a Material
Adverse Effect.
(ii) The execution and delivery of this Agreement and the
Indenture and the performance of the obligations set forth herein
and therein by the Company and the Operating Partnership did not
and do not conflict with, or constitute a breach or violation of,
or default under: (A) any or all of the Credit Documents and the
Pending Contracts; (B) any applicable law, rule or administrative
regulation of the federal government (or agency thereof) of the
United States; or (C) any order or administrative or court decree
issued to or against, or concerning any or all of the Company,
FRA, the Operating Partnership, FIH, FII, the Mortgage
Partnership, FIHC, FIMC and FIIC, of which, in the cases of
clauses (B) and (C) above, such counsel is aware, except in each
case for conflicts, breaches, violations or defaults that, in the
aggregate, would not have a Material Adverse Effect.
(iii) To the knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened that do, or are
likely to, have a Material Adverse Effect.
(iv) The information in the Prospectus Supplement under
"Prospectus Supplement Summary--Recent Developments" and in the
10-K under Item 2 "The Properties--Mortgage Loans" (other than
information relating to a certain mortgage loan made available to
First Industrial Financing Partnership, L.P. by Nomura Asset
Capital Corporation) to the extent that it constitutes statements
of law, descriptions of statutes, summaries of principal
financing terms of Credit Documents or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects and presents fairly the information disclosed therein.
(i) On the date hereof, Coopers & Lybrand L.L.P. shall have
furnished to the Underwriters a letter, dated the date of its
delivery, addressed to the Underwriters and in form and substance
satisfactory to the Underwriters (and to its counsel), confirming that
they are independent public accountants with respect to the Op-
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<PAGE>
erating Partnership, the Company and the Subsidiaries as required by
the Securities Act and with respect to the financial and other
statistical and numerical information contained in the Registration
Statement and the Prospectus and containing statements and information
of the type ordinarily included in accountants' "comfort letters" as
set forth in the AICPA's Statement on Auditing Standards 72. At the
Closing Date, Coopers & Lybrand L.L.P. shall have furnished to the
Underwriters a letter, dated the date of its delivery, which shall
confirm, on the basis of a review in accordance with the procedures
set forth in the letter from it, that nothing has come to its
attention during the period from the date of the letter referred to in
the prior sentence to a date (specified in the letter) not more than
five days prior to the Closing Date, which would require any change in
its letter dated the date hereof if it were required to be dated and
delivered at the Closing Date;
(j) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Rogers & Wells LLP ("Rogers & Wells"), counsel
for the Underwriters, as to the matters referred to in clause (i)
(with respect to the Company only) of Section 6(g) and clauses (ii)
(with respect to the Operating Partnership and the first sentence
only), (v), (vii) (with respect to the first subclause only), (viii),
(ix) (with respect to "Description of Debt Securities" only) (xiii)
and (xiv) of Section 6(f) and in addition, Rogers & Wells shall make
statements similar to those contained in the second paragraph
following Section 6(f)(xix) hereto and shall be entitled to rely on
those persons described in the third paragraph following Section
6(f)(xix) hereto with respect to the matters described therein.
(k) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Davis, Polk & Wardwell, special counsel to the
Underwriters, as to the matters referred to in clauses (vii) (except
for the first subclause thereof), (ix) (with respect to the
"Description of Drs. only) and (xvi) (with respect to "Certain United
States Federal Income Tax Considerations" and "Description of
Drs.-General,-Mandatory Tender of Drs.,-Remarketing,-Repurchase and
-Redemption" only) of Section 6(f).
(l) On or prior to the Closing Date, the Operating Partnership
shall have executed and delivered the Remarketing Agreement in a form
and manner acceptable to J.P. Morgan Securities Inc., as remarketing
dealer thereunder.
(m) At the Closing Date, the Securities shall have the ratings
accorded by any "nationally recognized statistical organization," as
defined by the Commission for purposes of Rule 436(g)(2) under the Act
if and as specified in Schedule I hereto, and the Operating
Partnership shall have delivered to J.P. Morgan Securities Inc. a
letter, dated as of such date, from each such rating organization, or
other evidence satisfactory J.P. Morgan Securities Inc., confirming
that the Securities have such ratings. Since the date hereof, there
shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company's securities or the Oper-
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<PAGE>
ating Partnership's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of the Securities or any of the Company's securities or the
Operating Partnership's other securities.
(n) If the Registration Statement or an offering of Securities
has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(o) At the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Securities, as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Operating Partnership and the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to Rogers & Wells, counsel for the
Underwriters.
7. The Company and the Operating Partnership, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company or the Operating
Partnership shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company or the
Operating Partnership in writing by such Underwriter through you expressly for
use therein; provided, that the foregoing indemnity with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of the person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities
if such untrue statement or omission or alleged untrue statement or omission
made in such preliminary prospectus or preliminary prospectus supplement is
eliminated or
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remedied in the Prospectus (as amended or supplemented if the Company or the
Operating Partnership shall have furnished any amendments or supplements
thereto) and, if required by law, a copy of the Prospectus (as so amended or
supplemented) shall not have been furnished to such person at or prior to the
written confirmation of the sale of such Securities to such person, provided
further that the Company and the Operating Partnership shall have complied with
their obligations under Section 5(a) hereof with respect to the Prospectus (as
so amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company and the Operating Partnership, and the Company's and the
Operating Partnership's officers and directors who sign the Registration
Statement and each person who controls the Company or the Operating Partnership
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
the Operating Partnership to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company and the
Operating Partnership in writing by such Underwriter through you expressly for
use in the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. For purposes of this Section 7 and
Section 4(b), the only written information furnished by the Underwriters to the
Company expressly for use in the Registration Statement and the Prospectus is
(a) the names of the Underwriters on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
stabilization on the inside front cover page of the Prospectus specifically
relating to the Securities, (c) the information in the second paragraph on page
S-12, and (d) the information in the chart, and the third and sixth paragraphs
under the caption "Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with
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any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by J.P.
Morgan Securities Inc. and any such separate firm for the Company, the Operating
Partnership, their directors, their officers who sign the Registration Statement
and such control persons of the Company and the Operating Partnership or
authorized representatives shall be designated in writing by the Company or the
Operating Partnership. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. If it is ultimately determined that an Indemnified Person was not
entitled to indemnification hereunder, such Indemnified Person shall be
responsible for repaying or reimbursing the Indemnifying Person for any amounts
so paid or incurred by such Indemnifying Person pursuant to this paragraph. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (a) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Operating Partnership on the one hand and the Underwrit-
-33-
<PAGE>
ers on the other hand from the offering of the Securities or (b) if the
allocation provided by clause (a) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (a) above but also the relative fault of the Company and
the Operating Partnership on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the net proceeds from the offering of
such Securities (before deducting expenses) received by the Company and the
Operating Partnership and the total underwriting discounts and the commissions
received by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company and the Operating Partnership on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Operating Partnership on
the one hand or by the Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Operating Partnership and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint,
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full force
and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company or the Operating Partnership and (c)
acceptance of and payment for any of the Securities.
-34-
<PAGE>
8. Notwithstanding anything herein contained, this Agreement may be
terminated in your absolute discretion by notice given to the Operating
Partnership, if after the execution and delivery of this Agreement and prior to
the Closing Date (a) the Company and the Operating Partnership shall have
failed, refused or been unable, at or prior to the Closing Date, to perform any
agreements on its part to be performed hereunder, (b) any other conditions to
the Underwriters' obligations hereunder are not fulfilled, (c) trading generally
shall have been suspended or materially limited on or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the
Chicago Mercantile Exchange or the Chicago Board of Trade, (d) trading of any
securities of or guaranteed by the Company and the Operating Partnership shall
have been suspended on any exchange or in any over-the-counter market, (e) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities; or (f) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, in your judgment, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the non-defaulting Underwriters
may specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Underwriter
has agreed to purchase pursuant to Section 1 be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased, and arrangements satisfactory to the
Underwriters and the Operating Partnership for the purchase of such Securities
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Operating
Partnership. In any such case either you or the Company and the Operating
Partnership shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
-35-
<PAGE>
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company and the
Operating Partnership to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company and the Operating
Partnership shall be unable to perform their obligations under this Agreement or
any condition of the Underwriters' obligations cannot be fulfilled, the Company
and the Operating Partnership agree to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections 5(k) and
7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Operating Partnership, the Underwriters, any controlling
persons referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by J.P. Morgan Securities Inc. alone on behalf of the Underwriters, and any such
action taken by you jointly or by J.P. Morgan Securities Inc. alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Underwriters, c/o J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260, Attention: Syndicate Department,
with a copy to Rogers & Wells LLP, 200 Park Avenue, New York, New York 10166,
Attention: Robert E. King, Jr., Esq. Notices to the Company shall be given to it
at First Industrial Realty Trust, Inc., 311 South Wacker Drive, Suite 4000,
Chicago, Illinois, 60606, Attention: Michael T. Tomasz, with a copy to Cahill
Gordon & Reindel, 80 Pine Street, New York, New York, 10005, Attention: Gerald
S. Tanenbaum, Esq.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
-36-
<PAGE>
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
-----------------------------------------
Name: Gary H. Heigl
Title: Senior Vice President - Capital
Markets
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its sole general partner
By: /s/ Gary H. Heigl
-----------------------------------------
Name: Gary H. Heigl
Title: Senior Vice president - Capital
Markets
Accepted: March 26, 1998
J.P. MORGAN SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
UBS SECURITIES LLC
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
By: J.P. MORGAN SECURITIES INC., on behalf of itself and
the several Underwriters listed in Schedule II hereto
By: /s/ Patricia Lunka
-------------------------------
Name: Patricia Lunka
Title: Vice President
-37-
<PAGE>
SCHEDULE I
Underwriters: J.P. Morgan Securities Inc.
Donaldson, Lufkin & Jenrette
Securities Corporation Merrill
Lynch, Pierce Fenner & Smith
Incorporated UBS Securities
LLC
Underwriting Agreement dated: March 26, 1998
Registration Statement No.: 333-43641
Title of Securities: 6 1/2% Dealer remarketable
securities ("Drs.") due 2011
Aggregate principal amount: $100,000,000
Price to Public: 99.753% of the principal
amount of the Drs., plus
accrued interest, if any,
from March 31, 1998.
Purchase Price: 99.303% of the principal
amount of the Drs., plus
accrued interest, if any,
from March 31, 1998.
Indenture: Indenture dated as of May 13,
1997 and the Fourth
Supplemental Indenture to be
dated as of March 31, 1998,
both between the Company,
the Operating Partnership and
the Trustee.
Maturity: April 5, 2011
Interest Rate: 6 1/2% until the Remarketing
Date. Thereafter, if the Drs.
remain outstanding, they
will bear interest at the
Interest Rate to Maturity
determined in accordance with
the procedures described
in the Prospectus Supplement
dated March 26, 1998 to
the Prospectus dated
January 27, 1998.
Interest Payment Dates: April 5 and October 5, com-
mencing October 5, 1998.
<PAGE>
Remarketing/Mandatory
Repurchase Provisions
The Drs. are subject to
mandatory tender on April 5,
2001 (the "Remarketing Date").
If J.P. Morgan Securities
Inc., as Remarketing Dealer
(the "Remarketing Dealer"),
has elected to remarket the
Drs. as described in the
Prospectus, the Drs. will be
subject to mandatory tender to
the Remarketing Dealer at 100%
of the principal amount there-
of for remarketing on the
Remarketing Date. If the Re-
marketing Dealer elects not to
remarket the Drs., or for
any reason does not purchase
all of the Drs. on the Remar-
keting Date, the Company will
be required to purchase on the
Remarketing Date any Drs. that
have not been purchased by the
Remarketing Dealer at 100% of
the principal amount thereof
plus accrued interest, if any.
Redemption: The Drs. will be redeemable on
the Remarketing Date on the
terms described in the
Prospectus.
Sinking Fund Provisions: None
Remarketing Agreement: The Company and the Remarket-
ing Dealer shall execute and
deliver a remarketing agree-
ment on or prior to the
Closing Date. In considera-
tion therefor, the Remarketing
Dealer shall make a payment to
the Company on the Closing
Date equal to 2.760% of the
principal amount of the Drs.
Other Significant Provisions: As set forth in the
Prospectus.
Ratings: Standard & Poor's - "BBB"
Fitch Investor Service, L.P.-
"BBB+" Moody's Investors
Service - "Baa2" Duff & Phelps
- "BBB"
Closing Date and Time of Delivery: The Closing will be held at
9:00 A.M. (E.S.T.) on
March 31, 1998, with the
Securities being delivered
through the book-entry
facilities of The Depository
Trust Company ("DTC") and
-2-
<PAGE>
made available for checking by
DTC and the Trustee at least
24 hours prior to the Closing
Date.
Closing Location: Rogers & Wells LLP
200 Park Avenue
New York, NY 10166
-3-
<PAGE>
SCHEDULE II
Principal Amount
of Drs. To Be
Underwriters Purchased
J.P. Morgan Securities Inc........................... $60,000,000
Donaldson, Lufkin & Jenrette
Securities Corporation............................. $10,000,000
Merrill Lynch, Pierce Fenner
& Smith Incorporated............................... $15,000,000
UBS Securities LLC................................... $15,000,000
-----------
Total.............................................. $100,000,000
============
<PAGE>
SCHEDULE III
SUBSIDIARIES
First Industrial Securities Corporation
First Industrial Securities, L.P.
First Industrial Mortgage Corporation
First Industrial Mortgage Partnership, L.P.
First Industrial Financing Corporation
First Industrial Financing Partnership, L.P.
First Industrial Indianapolis Corporation
First Industrial Indianapolis, L.P.
First Industrial Harrisburg Corporation
First Industrial Harrisburg, L.P.
First Industrial Development Services Group, L.P.
FI Development Services Corporation
First Industrial Pennsylvania Corporation
First Industrial Pennsylvania Partnership, L.P.
FR Acquisitions, Inc.
First Industrial Management Corporation
FR Development Services, L.L.C.
FR Development Services, Inc.
<PAGE>
SCHEDULE IV
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
First Industrial, L.P. Georgia*
Illinois*
Indiana*
Iowa
Michigan
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois*
Michigan*
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
<PAGE>
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Georgia
Illinois
Iowa
Michigan
Minnesota
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial (Atlanta) Management Corporation Georgia
Illinois
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
-2-
<PAGE>
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia
Illinois
Michigan
Minnesota
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
- --------------------------
* Denotes jurisdictions on which counsel is opining.
-3-
EXHIBIT 1.2
REMARKETING AGREEMENT
between
FIRST INDUSTRIAL, L.P.
and
J.P. MORGAN SECURITIES INC.
as Remarketing Dealer
<PAGE>
TABLE OF CONTENTS
--------------
PAGE
SECTION 1. Definitions..................................................2
SECTION 2. Representations and Warranties...............................5
SECTION 3. Covenants of the Company.....................................6
SECTION 4. Appointment and Obligations of the Remarketing Dealer........9
SECTION 5. Fees and Expenses...........................................12
SECTION 6. Resignation of the Remarketing Dealer.......................12
SECTION 7. Dealing in the Drs.; Purchase of Drs.by the Company.........12
SECTION 8. Conditions to Remarketing Dealer's Obligations..............13
SECTION 9. Indemnification.............................................15
SECTION 10. Termination of Remarketing Agreement........................18
SECTION 11. Remarketing Dealer's Performance; Duty of Care..............20
SECTION 12. Governing Law...............................................20
SECTION 13. Term of Agreement...........................................20
SECTION 14. Successors and Assigns......................................20
SECTION 15. Headings....................................................21
SECTION 16. Severability................................................21
SECTION 17. Counterparts................................................21
SECTION 18. Amendments; Waivers.........................................21
SECTION 19. Notices.....................................................21
<PAGE>
REMARKETING AGREEMENT dated as of March 31, 1998 (the "Agreement") between
First Industrial, L.P., a Delaware limited partnership (the "Company"), and J.P.
Morgan Securities Inc. ("JPMSI" and, in its capacity as the remarketing dealer
hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $100,000,000 aggregate principal amount of
its 6 1/2% Dealer remarketable securities_("Drs."_) pursuant to an Indenture
dated as of May 13, 1997, as supplemented (the "Indenture"), from the Company to
First Trust, National Association, as trustee (the "Trustee"); and
WHEREAS, the Drs. are being sold initially pursuant to an Underwriting
Agreement dated as of March 26, 1998 (the "Underwriting Agreement") between the
Company and JPMSI, Donaldson, Lufkin & Jenrette Securities Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and UBS Securities LLC, as
Underwriters; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-43641) under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the offering
of debt securities, including the Drs., which registration statement was
declared effective by order of the Commission, and has filed such amendments
thereto and such amended or supplemented prospectuses as may have been required
to the date hereof, and will file such additional amendments and supplements
thereto and such additional amended or supplemented prospectuses as may
hereafter be required (such registration statement, including any amendments and
supplements thereto, and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Securities Act, or otherwise,
are referred to herein as the "Registration Statement"); all preliminary and
final prospectuses relating to such Registration Statement used in connection
with the offering of Drs., including the documents incorporated by reference
therein, are referred to herein collectively as the "Prospectus"; provided that,
if any new or revised prospectus shall be provided to the Remarketing Dealer by
the Company for use in connection with the remarketing of the Drs. which differs
from the Prospectus filed with the Commission at the time of the initial
issuance of the Drs. (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) under the Securities Act), the term
"Prospectus" shall refer to such new or revised prospectus from and after the
time it is first provided to the Remarketing Dealer for such use, and
"Registration Statement" shall refer to the Registration Statement as deemed
amended by the prospectus so provided or any new registration statement of which
such prospectus is a part; and
- ----------
- -"Dealer remarketable securities_" and "Drs._" are service marks of J.P. Morgan
Securities Inc.
<PAGE>
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect to
the remarketing of the Drs. on April 5, 2001 (the "Remarketing Date") pursuant
to the terms of, but subject to the conditions set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions.
(a) The following terms have the following meanings:
"Base Rate" means 5.67% per annum.
"Business Day" means any day other than a Saturday or Sunday or other day
on which banking institutions in the City of New York or Chicago are authorized
or obligated by law, executive order or governmental decree to be closed.
"Call Price" means the fair market value of the embedded interest rate
option implicit in the Remarketing Dealer's right to purchase and remarket on
the Remarketing Date, pursuant to this Agreement, the Unremarketable Drs. The
Call Price in respect of any Unremarketable Drs. shall equal:
(i) if the Remarketing Dealer's request for a Call Price payment is
made prior to the Determination Date, the Commercially Reasonable Option
Value on the date of such request.
(ii) if the Remarketing Dealer's request for a Call Price payment is
made on or after the Determination Date, an amount (if positive) equal to
(x) the Dollar Price less (y) the aggregate principal amount of the Drs.
originally issued.
"Commercially Reasonable Option Value" means, on any date, the amount
determined by the Remarketing Dealer on such date under Section 6(e) of the
Master Agreement on a "Market Quotation" basis in respect of the embedded
interest rate option implicit in the Remarketing Dealer's option to purchase, at
100% of the aggregate principal amount thereof, the Unremarketable Drs. as if a
"Termination Event" had occurred on such date under such interest rate option
with respect to the Company under the Master Agreement and the Company was the
"Affected Party".
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated maturity on such Determination
Date) comparable to the remaining term of the Drs.
2
<PAGE>
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, then (i) if the Remarketing
Dealer obtains four or five Reference Treasury Dealer Quotations, the average of
such Reference Treasury Dealer Quotations for such Remarketing Date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations
(unless there is more than one highest or lowest quotation, in which case only
one such highest and/or lowest quotation shall be excluded), or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations. The
Remarketing Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
Maturity Date and (z) bearing interest from the Remarketing Date, payable
semi-annually (assuming a 360-day year consisting of twelve 30-day months) on
the interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"Reference Corporate Dealer" means J.P. Morgan Securities Inc., and four
other leading dealers of publicly-traded debt securities of the Company
acceptable to JPMSI and the Company.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) for settlement on the
Remarketing Date, quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Stated Maturity Date" means April 5, 2011.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price specified in
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Jones Markets Limited.
3
<PAGE>
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
"Unremarketable Drs." means any Drs. that are unavailable for any reason
for remarketing by the Remarketing Dealer on the Remarketing Date (whether due
to termination of this Agreement according to its terms, purchase of Drs. by the
Company prior to the Remarketing Date, or otherwise).
(b) The following additional terms are defined in the following Sections:
Defined Term Section
------------ -------
Commission Preamble
Company Preamble
Determination Date 4(d)
Drs. Preamble
DTC 4(e)
Exchange Act Preamble
Exchange Act Documents 2(a)
Indemnified Person 9(c)
Indemnifying Person 9(c)
Indenture Preamble
Interest Rate to Maturity 4(d)
Investment Grade 8(c)
JPMSI Preamble
Master Agreement 8(c)
Notification Date 4(c)
Prospectus Preamble
Registration Statement Preamble
Remarketing Date Preamble
Remarketing Dealer Preamble
Remarketing Materials 3(c)
Representation Date 2(a)
Securities Act Preamble
Trustee Preamble
Underwriting Agreement Preamble
4
<PAGE>
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Remarketing Dealer as of the
date hereof, the Notification Date (as defined below), the Determination Date
(as defined below) and the Remarketing Date (each of the foregoing dates being
hereinafter referred to as a "Representation Date"), as follows:
(i) It has filed 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 (collectively, the
"Exchange Act Documents").
(ii) The applicable Remarketing Materials (as defined below) will not,
as of their date or the Remarketing Date, include 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, in the light
of the circumstances under which they were made, not misleading.
(iii) The representations and warranties contained in the Underwriting
Agreement are true and correct with the same force and effect as though
expressly made at and as of each Representation Date; except that for
purposes of this Agreement, representations and warranties in the
Underwriting Agreement relating to the Registration Statement and the
Prospectus (as defined therein) shall be made with respect to such
documents as deemed modified by the Exchange Act Documents, as well as any
new or revised registration statement and new or revised prospectus
required by subsection 3(f) herein, and the date as of which such
representations and warranties are made shall include each Representation
Date.
(iv) Since the respective dates as of which information is given in
the Remarketing Materials or the Exchange Act Documents, there has not been
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Remarketing Materials or
the Exchange Act Documents.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The issue and sale of the Drs. and the performance by the Company
of all of its obligations under the Drs., the Indenture and this Agreement
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to
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which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, except for
such conflicts, breaches or defaults which individually or in the aggregate
would not have a Material Adverse Effect (as defined in the Underwriting
Agreement) nor will any such action result in any violation of the
provisions of the Partnership Agreement of the Company or any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties. No consent, approval,
authorization, order, license, registration or qualification of or with any
such court or governmental agency or body is required for the issue and
sale of the Drs. or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such as have
already been obtained and except as may be required under the blue sky laws
of any jurisdiction.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Remarketing Dealer or to counsel for
the Remarketing Dealer in connection with the remarketing of the Drs. shall be
deemed a representation and warranty by the Company to the Remarketing Dealer as
to the matters covered thereby.
SECTION 3. Covenants of the Company.
The Company covenants with the Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Remarketing Dealer of the occurrence:
(i) at any time, of any event set forth in clause (i) or (ii) of
subsection 8(c) or of any amendment of any kind to the Indenture (including
the Drs.); and
(ii) on or after the Notification Date, of any event set forth in
clauses (i) or (ii) of subsection 8(d).
(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the
Drs. (including in each case any amendment or supplement thereto and each
document incorporated therein by reference), other than Exchange Act
Documents publicly available on the Commission's internet website, and
(ii) in connection with the remarketing of Drs. such other publicly
available written information as the Remarketing Dealer may reasonably
request from time to time, other than Exchange Act Documents publicly
available on the Commission's internet website.
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The Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing written materials and other Company-approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of Drs. and consents to the use thereof for such purpose.
(c) If, at any time within three months of the Remarketing Date, any event
or condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could reasonably be expected to
cause any of the materials or information referred to in subsection 3(b) above,
any Exchange Act Documents or any document incorporated therein by reference
(collectively, the "Remarketing Materials") to contain an untrue statement of a
material fact or omit to state a material fact, the Company shall promptly
notify the Remarketing Dealer in writing of the circumstances and details of
such event or condition.
(d) So long as the Drs. are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
so as to permit the completion of the remarketing of the Drs. as contemplated in
(i) this Agreement, (ii) the Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and (iii) the prospectus, if any, used in
connection with the remarketing.
(f) If a new or amended Registration Statement in respect of the Drs. is in
the opinion of counsel for the Remarketing Dealer or for the Company necessary
to sell Drs. on an unrestricted basis on the Remarketing Date, then the Company,
at its expense, will, on or before such date:
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Drs.
by the Remarketing Dealer, and cause such Registration Statement to become
effective on or prior to the Remarketing Date;
(ii) furnish to the Remarketing Dealer such number of copies of such
Prospectus as the Remarketing Dealer may reasonably request;
(iii) furnish to the Remarketing Dealer an officers' certificate, an
opinion, including a statement as to the absence of material misstatements
in or omissions from the Registration Statement and the Prospectus, of
Cahill Gordon & Reindel or such other counsel to the Company reasonably
satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case dated as of the Remarketing
Date and in form and substance satisfactory to the Remarketing Dealer, of
the same tenor as the officers' certificate, opinion and comfort letter,
re-
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spectively, delivered to satisfy the closing conditions of the Underwriting
Agreement, but modified to relate to such new or amended Registration
Statement and the Prospectus; and
(iv) provide to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. the opportunity to conduct an
underwriters' due diligence investigation of the Company in a scope
customarily provided in connection with a public offering of the Company's
debt securities.
Furthermore, if at any time when, in the opinion of counsel for the
Remarketing Dealer, a prospectus is required by the Securities Act to be
delivered in connection with remarketing of the Drs., any event shall occur or
condition shall exist as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus in order that such
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Prospectus to comply with law, the Company, at its expense, will promptly
furnish to the Remarketing Dealer such amendments or supplements to the
Prospectus as may be needed so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
The Company agrees to reimburse the Remarketing Dealer, to a maximum of
$25,000, for half of its reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) incurred in connection with any remarketing
under circumstances described in this subsection 3(f). Notwithstanding the
preceding sentence, if at the time of such remarketing, the Company or its
affiliates hold Drs. which would not have had to have been registered but for
the fact that the Company or such affiliates hold such Drs., then the Company
shall pay all of the Remarketing Dealer's reasonable out-of-pocket expenses in
connection with the remarketing of the Drs.
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. prior to the Remarketing Date,
other than
(i) a repurchase of the Drs. in accordance with subsection 4(g);
(ii) a redemption of the Drs. in accordance with subsection 4(h); or
(iii) a purchase by the Company of Drs.; provided that if the Company
purchases Drs. pursuant to this subsection (g), it agrees (x) to ensure
that such Drs. remain at all times outstanding and held through the
facilities of DTC, (y) to ensure that none of such Drs. are at any time
subject to any liens or encumbrances of any nature whatsoever and (z) if
the Remarketing Dealer elects to remarket the Drs. on the Remarket-
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ing Date, to tender such Drs. to the Remarketing Dealer on the Remarketing
Date in accordance with the procedures described in this Agreement.
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the remarketing, the Company will use its best
efforts to qualify the Drs. for sale under the laws of such jurisdictions
as the Remarketing Dealer may designate, and will maintain such
qualifications in effect so long as required for the remarketing of the
Drs.; provided, however, the Company will not be required to qualify as a
foreign limited partnership, 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 partnership agreement
that the general partner of the Company reasonably determines to be
contrary to the best interests of the Company and its unitholders. The
Company will pay all expenses in connection with such qualification,
including the fees and disbursements of counsel for any dealers
participating in the remarketing in connection with such qualification and
in connection with blue sky and legal investment surveys.
(j) During the five Business Day period ending on the Remarketing Date, the
Company will not, without the consent of the Remarketing Dealer, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the public offering of, any debt securities issued or guaranteed by the Company.
SECTION 4. Appointment and Obligations of the Remarketing Dealer.
(a) Unless this Agreement is otherwise terminated in accordance with
Section 10 hereof, the Company hereby appoints JPMSI, and JPMSI hereby accepts
such appointment, in accordance with the terms but subject to the conditions of
this Agreement, as the exclusive Remarketing Dealer with respect to the Drs.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Drs. on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket the Drs. are conditioned
on:
(i) the issuance and delivery of such Drs. pursuant to the terms and
conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Drs. for remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in Section 8 hereof shall
have been fully and completely met to the satisfaction of the Remarketing
Dealer.
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(c) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase the Drs. on the
Remarketing Date. If, and only if, the Remarketing Dealer so elects, the Drs.
shall be subject to mandatory tender to the Remarketing Dealer for purchase and
remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein. The purchase price of the Drs. shall be equal to
100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate on
the Drs. as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submits
a bid). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over the Base Rate) based on the
following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. Subject only to
subsection 4(e), below, the Remarketing Dealer shall have the discretion to
select the time at which the Interest Rate to Maturity is determined on the
Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to subsection 4(d). If two or more Reference Corporate Dealers submit equivalent
bids which constitute the lowest firm, committed bid, the Remarketing Dealer may
in its sole discretion elect to sell the Drs. to any such Reference Corporate
Dealer.
(e) If the Remarketing Dealer has elected to remarket the Drs. as provided
in subsections 4(c) and 4(d), then it shall notify the Company, the Trustee and
The Depository Trust Company ("DTC") by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 5:00 p.m., New York
City time, on the Determination Date
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of the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
(f) If the Drs. are remarketed as provided herein, then, subject to Section
8 hereof, the Remarketing Dealer will make, or cause the Trustee to make,
payment to DTC by the close of business on the Remarketing Date against delivery
through DTC of the tendered Drs., of the purchase price for all of the tendered
Drs. The purchase price of the tendered Drs. will be equal to 100% of the
principal amount thereof and shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Drs. for
remarketing pursuant to subsection 4(c), (ii) determines in its sole discretion
that one or more of the conditions in Section 8 hereof have not been fulfilled
by the required time, or (iii) for any other reason does not remarket the Drs.,
then the Company shall repurchase on the Remarketing Date all then outstanding
Drs. at a price equal to 100% of the principal amount of such Drs. plus all
accrued interest, if any, on such Drs. to (but excluding) the Remarketing Date.
(h) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Drs., in whole but not in
part, from the Remarketing Dealer on the Remarketing Date at the greater of (x)
100% of the aggregate principal amount of the Drs. and (y) the Dollar Price, by
giving notice of such election to the Remarketing Dealer
(i) no later than the Business Day immediately prior to the
Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
If the Company exercises its right to redeem the Drs. pursuant to clause
4(h)(ii) above, it shall promptly reimburse the Remarketing Dealer for any and
all expenses (including any and all hedge losses resulting from intra-day
hedging associated with the determination of the Dollar Price on the
Determination Date by the Remarketing Dealer) incurred by the Remarketing Dealer
in connection with its having to break such associated intra-day hedging
transactions to enable the Company to exercise such redemption right. If any
such broken hedges result in a profit to the Remarketing Dealer, the Remarketing
Dealer shall promptly pay such profit over to the Company. The amount of any
hedge losses or profits shall be determined solely by the Remarketing Dealer, on
a reasonable basis.
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(i) In accordance with the terms and provisions of the Drs., the tender and
settlement procedures set forth in this Section 4, shall be subject to
modification without the consent of the holders of the Drs., to the extent
required by DTC or, if the book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required to facilitate the
tendering and remarketing of Drs. in certificated form. In addition, the
Remarketing Dealer may, without the consent of the holders of the Drs., modify
the settlement procedures set forth in the Indenture and/or the Drs. in order to
facilitate the settlement process.
(j) In accordance with the terms and provisions of the Drs., the Company
hereby (i) agrees that at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the Drs. in book-entry
form and (ii) waives any discretionary right it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
SECTION 5. Fees and Expenses.
Subject to subsection 3(f), the last paragraph of subsection 4(h), and
Section 10 hereof, the Remarketing Dealer will not receive any fees or
reimbursement of expenses from the Company for its remarketing services set
forth herein.
SECTION 6. Resignation of the Remarketing Dealer.
The Remarketing Dealer may resign and be discharged from its duties and
obligations hereunder at any time prior to its giving notice of its intention to
remarket the Drs., such resignation to be effective ten Business Days after
delivery of a written notice to the Company and the Trustee of such resignation.
The Remarketing Dealer also may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be effective immediately,
upon termination of this Agreement in accordance with subsection 10(b) hereof.
The Company shall have the right, but not the obligation, to appoint a successor
Remarketing Dealer.
SECTION 7. Dealing in the Drs.; Purchase of Drs. by the Company.
(a) JPMSI, when acting as the Remarketing Dealer or in its individual or
any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Drs. JPMSI, as holder or beneficial owner of the Drs., may
exercise any vote or join as a holder or beneficial owner, as the case may be,
in any action which any holder or beneficial owner of Drs. may be entitled to
exercise or take pursuant to the Indenture with like effect as if it did not act
in any capacity hereunder. The Remarketing Dealer, in its capacity either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
(b) The Company may purchase Drs. in the remarketing, provided that the
Interest Rate to Maturity established with respect to Drs. in the remarketing is
not different
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from the Interest Rate to Maturity that would have been established if the
Company had not purchased such Drs.
SECTION 8. Conditions to Remarketing Dealer's Obligations.
The obligations of the Remarketing Dealer to purchase the Drs. on the
Remarketing Date in accordance with the provisions of this Agreement, to
determine the Interest Rate to Maturity pursuant to subsection 4(d), and to
remarket the Drs. have been undertaken in reliance on, and are subject to, the
following conditions:
(a) the due performance in all material respects by the Company of its
obligations and agreements as set forth in this Agreement and the accuracy of
the representations and warranties in this Agreement and any certificate
delivered pursuant hereto;
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy as of the dates
specified therein of the representations and warranties contained in, the
Underwriting Agreement;
(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) an Event of Default (as defined in the Indenture), or any event
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default thereunder, with respect to the Drs. shall
have occurred and be continuing;
(ii) an Event of Default or a Termination Event (each as defined in
the form of ISDA Master Agreement attached as Exhibit A hereto (the "Master
Agreement")) shall have occurred and be continuing under the Master
Agreement; or
(iii) without the prior written consent of the Remarketing Dealer, the
Indenture (including the Drs.) shall have been amended in any manner, or
otherwise contain any provision not contained therein as of the date
hereof, that in either case in the judgment of the Remarketing Dealer
materially changes the nature of the Drs. or the remarketing procedures;
(d) none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to purchase the Drs.:
(i) there shall have occurred any downgrading, or any notice shall
have been given of (A) any downgrading, (B) any intended or potential
downgrading or (C) any review or possible change that does not indicate an
improvement, in the rating accorded any debt securities of, or guaranteed
by, the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
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(ii) trading of any securities of, or guaranteed by, the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole, in each case otherwise than as set forth or contemplated in the
Prospectus the effect of which is such as to make it, in the judgment of
the Remarketing Dealer, impracticable or inadvisable to remarket the Drs.;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the remarketing of the Drs., the Company shall
fail to furnish to the Remarketing Dealer on the Remarketing Date the
officers' certificate, opinion and comfort letter referred to in subsection
3(f) of this Agreement and such other documents and opinions as Davis Polk
& Wardwell, as special counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale of
Drs. in the remarketing as herein contemplated and related proceedings, or
in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained;
(v) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers,
Inc.; or a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities;
(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse
and which, in the judgment of the Remarketing Dealer, makes it
impracticable to remarket the Drs. or to enforce contracts for the sale of
the Drs.;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Drs. in accordance with subsection 4(d) hereof;
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Drs. and in any event prior to
the Determination Date) a certificate of any of the Chairman of the Board of
Directors, President, Chief Operating Officer or Chief
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Financial or Accounting Officer of the Company, satisfactory to the Remarketing
Dealer, dated as of the Notification Date, to the following effect:
(i) the Company has, prior to the Remarketing Dealer's election on the
Notification Date to remarket the Drs., provided the Remarketing Dealer
with notice of all events as required under subsection 3(a) of this
Agreement;
(ii) the representations and warranties in this Agreement are true and
correct in all material respects at and as of the Notification Date; and
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date a
certificate of any of the Chief Financial Officer, the Treasurer or the
Controller of the Company, satisfactory to the Remarketing Dealer, dated as of
the Remarketing Date, to the following effect:
(i) the representations and warranties in this Agreement are true and
correct in all material respects with the same force and effect as though
made at and as of the Remarketing Date;
(ii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, shall have occurred since the date of the most recent financial
statements of the Company filed with the Commission; and
(iv) the conditions specified in clauses 8(c)(i) and 8(c)(ii) and
clauses 8(d)(i) and 8(d)(ii) of this Agreement have been satisfied.
SECTION 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Dealer and each person, if any, who controls the Remarketing Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted):
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(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Drs., if required, or
the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to provide the Remarketing Dealer
with a prospectus for delivery,
(ii) caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to the Remarketing Dealer furnished to the Company in writing by
the Remarketing Dealer expressly for use therein, or
(iii) the acts or omissions of the Remarketing Dealer in connection
with its duties and obligations hereunder, except to the extent finally
judicially determined to be due primarily to its gross negligence or
willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Remarketing Dealer in subsection 9(a)(ii) of this Agreement, but only with
reference to information relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer expressly for use in any of the
Remarketing Materials.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
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(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Remarketing
Dealer and its directors and officers shall be designated in writing by it and
any such separate firm for the Company, its directors and its officers who sign
the Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.
(d) Notwithstanding the foregoing subsection 9(c), if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by such
subsection 9(c), the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to, then each Indemnifying Person, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Remarketing Dealer, on the other, from the remarketing of the Drs. or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and the Remarketing Dealer, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
17
<PAGE>
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the Remarketing
Dealer, on the other, shall be deemed to be in the same respective proportions
as the aggregate principal amount of the Drs. bears to the amount, if any, by
which the price at which the Drs. are sold by the Remarketing Dealer in the
remarketing exceeds the price paid by the Remarketing Dealer for the Drs.
tendered on the Remarketing Date. The relative fault of the Company on the one
hand and the Remarketing Dealer on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Remarketing Dealer and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall the
Remarketing Dealer be required to contribute any amount in excess of the amount
by which the total price at which the Drs. remarketed by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Remarketing Dealer has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law of in equity.
(h) The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person controlling the Remarketing
Dealer or by or on behalf of the Company, its officers or directors or any other
person controlling the Company.
SECTION 10. Termination of Remarketing Agreement.
(a) This Agreement shall terminate as to the Remarketing Dealer on the
earliest of
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(i) the effective date of the resignation of the Remarketing Dealer
pursuant to Section 6 hereof;
(ii) the occurrence of any event described in clause (i) or (ii) of
subsection 4(g) hereof; or
(iii) the date the Company gives notice of its intention to redeem all
of the outstanding Drs. in accordance with subsection 4(h).
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
if:
(i) any of the conditions referred to or set forth in subsection 8(a)
or (b) hereof have not been met or satisfied in full or any of the events
set forth in subsection 8(c) or 8(d) shall have occurred; or
(ii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
that, in the case of a termination resulting from a failure to observe the
conditions set forth in subsections 8(a) or 8(b), or the occurrence of any of
the events set forth in subsection 8(c) or clauses 8(d)(i) through 8(d)(iv), the
Company shall reimburse the Remarketing Dealer for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Remarketing Dealer. Section 9 and subsections 3(f), 4(h), 10(c)
and 10(d) shall survive such termination and remain in full force and effect.
(d) Upon the termination of this Agreement pursuant to subsection 10(b)
(except as a result of an event described in subsection 8(d)(vii)), then, upon
the request of the Remarketing Dealer, the Company shall pay to the Remarketing
Dealer, in same-day funds by wire transfer to an account designated by the
Remarketing Dealer, the Call Price. The Call Price shall be paid as soon as
practicable after the Remarketing Dealer has determined the Call Price and
notified the Company of the Call Price, but in any case no later than the
earlier of (x) three Business Days after written notification to the Company and
(y) the Remarketing Date.
The Remarketing Dealer shall promptly notify the Company of the Call Price
by telephone, confirmed in writing (which may include facsimile or other
electronic transmission). The Call Price, absent manifest error, shall be
binding and conclusive upon the parties hereto.
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(e) This Agreement shall not be subject to termination by the Company.
SECTION 11. Remarketing Dealer's Performance; Duty of Care.
The duties and obligations of the Remarketing Dealer shall be determined
solely by the express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read into
this Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any beneficial owner or holder of Drs.
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except as a result of its
gross negligence or willful misconduct.
SECTION 12. Governing Law.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the conflicts of laws
provisions thereof.
SECTION 13. Term of Agreement.
Unless otherwise terminated in accordance with the provisions hereof, this
Agreement shall remain in full force and effect from the date hereof until the
earlier of the first day thereafter on which no Drs. are outstanding or the
completion of the remarketing of the Drs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of each of the parties pursuant to Section 9
and of the Company pursuant to subsections 3(f), 4(h), 10(c) and 10(d) hereof
shall remain operative and in full force and effect until fully satisfied.
SECTION 14. Successors and Assigns.
The rights and obligations of the Company hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Remarketing Dealer. The rights and obligations of the Remarketing Dealer
hereunder may not be assigned or delegated to any other person (other than an
affiliate of the Remarketing Dealer) without the prior written consent of the
Company. This Agreement shall inure to the benefit of and be binding upon the
Company and the Remarketing Dealer and their respective successors and assigns,
and will not confer any benefit upon any other person, partnership, association
or corporation
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<PAGE>
other than persons, if any, controlling the Remarketing Dealer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or
any other indemnified party to the extent provided in Section 9 hereof. The
terms "successors" and "assigns" shall not include any purchaser of any Drs.
merely because of such purchase.
SECTION 15. Headings.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
SECTION 16. Severability.
If any provision of this Agreement shall be held or deemed to be or shall,
in fact, be invalid, inoperative or unenforceable as applied in any particular
case in any or all jurisdictions because it conflicts with any provision of any
constitution, statute, rule or public policy or for any other reason, such
circumstances shall not have the effect of rendering the provision in question
invalid, inoperative or unenforceable in any other case, circumstance or
jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
SECTION 17. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be regarded as an original and all of which shall constitute one and the same
document.
SECTION 18. Amendments; Waivers.
This Agreement may be amended or portions thereof may be waived by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended or the provisions as so waived are not inconsistent with
the Indenture in effect as of the date of any such amendment or waiver.
SECTION 19. Notices.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder or pursuant hereto shall be made in
writing (which may include facsimile or other electronic transmission) and shall
be deemed to have been validly given or made when delivered or, if earlier,
three days after it was mailed, registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
(a) to the Company:
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First Industrial, L.P.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Michael T. Tomasz
Facsimile No.: (312) 922-9851
(b) to JPMSI:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
Facsimile No.: (212) 648-5909
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
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<PAGE>
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this Remarketing Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
its sole General Partner
By: /s/ Michael J. Havala
-----------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer, Treasurer
and Secretary
J.P. MORGAN SECURITIES INC.
By: /s/ Patricia Lunka
-----------------------------------------
Name: Patricia Lunka
Title: Vice President
EXHIBIT 4.1
- -------------------------------------------------------------------------------
FIRST INDUSTRIAL, L.P.
Issuer
to
FIRST TRUST NATIONAL ASSOCIATION
Trustee
-------------------------
Supplemental Indenture No. 4
Dated as of March 26, 1998.
-------------------------
$100,000,000
of
6 1/2% Dealer remarketable securities due April 5, 2011
- -------------------------------------------------------------------------------
<PAGE>
SUPPLEMENTAL INDENTURE NO. 4, dated as of March 26, 1998 (the "Supplemental
Indenture"), between FIRST INDUSTRIAL, L.P., a limited partnership duly
organized and existing under the laws of the State of Delaware (herein called
the "Operating Partnership"), and First Trust National Association, a national
organization duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership has heretofore delivered to the Trustee an
Indenture dated as of May 13, 1997 (the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit incorporated by reference to the Operating
Partnership's Registration Statement on Form S-3 (Registration No. 333-43641),
providing for the issuance from time to time of Debt Securities of the Operating
Partnership (the "Securities").
Section 301 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides for the Operating Partnership and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of the
series of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes or of either series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Indenture; and
<PAGE>
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means (i) the aggregate interest
expense for such period in respect of, and the amortization during such period
of any original issue discount of, Indebtedness of the Operating Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock and (ii) so long as First
Securities, L.P. ("Securities, L.P.") is a Subsidiary of the Operating
Partnership, distributions which are payable during such period in respect of
any preference equity interests of Securities, L.P.
"Base Rate" means 5.67%.
"Business Day" means any day, other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York or The City of Chicago are
authorized or obligated by law, executive order or governmental decree to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated maturity on such Determination
Date) comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500, adjusted to reflect
settlement on the Remarketing Date if prices quoted on Telerate Page 500 are for
settlement on any date other than the Remarketing Date, or (b) if such page (or
any successor page) is not displayed or does not contain such offer prices on
such Business Day, then (i) if the Remarketing Dealer obtains four or five
Reference Treasury Dealer Quotations, the average of such Reference Treasury
Dealer Quotations for such Remarketing Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations (unless there is more than
one highest or lowest quotation, in which case only one such highest and/or
lowest quotation shall be excluded), or (ii) if the Remarketing Dealer obtains
fewer than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. The Remar-
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<PAGE>
keting Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Operating Partnership and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Indebtedness of the
Operating Partnership and its Subsidiaries, (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income, (iii) amortization
of debt discount, (iv) provisions for gains and losses on properties and
property depreciation and amortization, (v) the effect of any noncash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period, (vi) amortization of deferred charges and (vii)
interest income related to investments irrevocably deposited with an agent of
the Operating Partnership or any of its Subsidiaries, as the case may be, for
the purpose of defeasing any indebtedness or any other obligation (whether
through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at One Illinois Center, 111 East
Wacker Drive, Suite 3000, Chicago, Illinois 60601.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the maturity price or redemption price
of which may, at the option of such Person, be paid in Capital Stock which is
not Disqualified Stock), (ii) is convertible into or exchangeable or exercisable
for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity Date of the Drs.
"Determination Date" has the meaning specified in Section 2.6(a) hereof.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
Maturity Date and (z) bearing interest from the Remarketing Date, payable
semi-annually (assuming a 360-day year consisting of twelve 30-day months) on
the interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"Drs." has the meaning specified in Section 2.1 hereof.
"DTC" means The Depository Trust Company or its successor.
3
<PAGE>
"Earnings from Operations" for any period means net income excluding gains
and losses on sales of investments, extraordinary items and property valuation
losses, net as reflected in the financial statements of the Operating
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP (except that for purposes hereof, each Subsidiary
of the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
"Encumbrance" means any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind; provided, however, that the term "Encumbrance"
shall not include any mortgage, lien, charge, pledge or security interest
securing any indebtedness or any other obligation which has been defeased
(through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used in the United
States applied on a consistent basis as in effect from time to time; provided
that solely for purposes of any calculation required by the financial covenants
contained herein, "GAAP" shall mean generally accepted accounting principles as
used in the United States on the date hereof, applied on a consistent basis.
"Indebtedness" of the Operating Partnership or any of its Subsidiaries
means any indebtedness of the Operating Partnership or any of its Subsidiaries,
whether or not contingent, in respect of (a) borrowed money or evidenced by
bonds, notes, debentures or similar instruments whether or not such indebtedness
is secured by any Encumbrance existing on property owned by the Operating
Partnership or any of its Subsidiaries, (b) indebtedness for borrowed money of a
Person other than the Operating Partnership or a Subsidiary of the Operating
Partnership which is secured by any Encumbrance existing on property owned by
the Operating Partnership or any of its Subsidiaries, to the extent of the
lesser of (x) the amount of indebtedness so secured and (y) the fair market
value of the property subject to such Encumbrance, (c) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, except any such balance that
constitutes an accrued expense or trade payable, and all conditional sale
obligations or obligations under any title retention agreement, (d) the
principal amount of all obligations of the Operating Partnership or any of its
Subsidiaries with respect to redemption, repayment or other repurchase of any
Disqualified Stock, (e) any lease of property by the Operating Partnership or
any of its Subsidiaries as lessee which is reflected on the Operating
Partnership's consolidated balance sheet determined in accordance with GAAP
(except that for the purposes hereof, each Subsidiary of the Operating
Partnership
4
<PAGE>
shall be treated as if such Subsidiary were a subsidiary under GAAP) as a
capitalized lease, or (f) interest rate swaps, caps or similar agreements and
foreign exchange contracts, currency swaps or similar agreements, and (ii) the
liquidation preference on any issued and outstanding preferred equity interests
of Securities, L.P., to the extent, in the case of items of indebtedness under
(i)(a) through (c) above, that any such items (other than letters of credit)
would appear as a liability on the Operating Partnership's consolidated balance
sheet determined in accordance with GAAP (except that for the purposes hereof,
each Subsidiary of the Operating Partnership shall be treated as if such
Subsidiary were a subsidiary under GAAP), and also includes, to the extent not
otherwise included, any obligation by the Operating Partnership or any of its
Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Operating Partnership or any of
its Subsidiaries) (it being understood that Indebtedness shall be deemed to be
incurred by the Operating Partnership or any of its Subsidiaries whenever the
Operating Partnership or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof) provided, however, that the term
"Indebtedness" shall not include any indebtedness or any other obligation that
has been defeased (through a covenant defeasance or otherwise) pursuant to the
terms of such indebtedness or other obligation or the terms of any instrument
creating or evidencing it.
"Interest Payment Date" shall have the meaning set forth in Section 2.3.
"Notification Date" shall have the meaning specified in Section 2.5(a).
"Principal Repayment Date" means the date on which all principal and
interest in respect of the Drs. would have been payable to a holder if such
redemption had not been made, namely (i) in the case of a redemption of Drs. at
any time prior to the Remarketing Date, the Remarketing Date, and (ii) in the
case of a redemption of Drs. at any time after the Remarketing Date, the Stated
Maturity Date.
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Operating
Partnership acceptable to J.P. Morgan Securities Inc. and the Operating
Partnership.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) for settlement
on the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the Determination
Date.
"Regular Record Date" shall have the meaning specified in Section 2.3.
"Remarketing Agreement" means the Remarketing Agreement dated as of March
31, 1998 between the Operating Partnership and J.P. Morgan Securities Inc., as
Remarketing Dealer, as such agreement may be amended from time to time.
"Remarketing Date" shall have the meaning specified in Section 2.3 hereof.
"Remarketing Dealer" means J.P. Morgan Securities Inc. or its successor and
assigns under the Remarketing Agreement.
5
<PAGE>
"Stated Maturity Date" shall have the meaning specified in Section 2.3.
"Subsidiary" means, (i) with respect to any Person, corporation,
partnership or other entity of which a majority of (a) the voting power of the
voting equity securities or (b) the outstanding equity interests of which are
owned, directly or indirectly, by such Person and (ii) with respect to the
Operating Partnership, Securities, L.P., so long as the Operating Partnership
owns, directly or indirectly, a majority of the outstanding non-preference
equity interests thereof. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price specified in
clause (a) of the definition of Comparable Treasury Price, as may replace Dow
Jones Markets Limited.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Operating Partnership and its
Subsidiaries determined in accordance with GAAP (except that for the purposes
hereof, each Subsidiary of the Operating Partnership shall be treated as if such
Subsidiary were a subsidiary under GAAP), but excluding accounts receivable and
intangibles; provided, however, that the term "Total Assets" shall not include
any assets which have been deposited in trust to defease any indebtedness or any
other obligation (whether through a covenant defeasance or otherwise) pursuant
to the terms of such indebtedness or other obligation or the terms of any
instrument creating or evidencing it.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Operating Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (except that
for the purposes hereof, each Subsidiary of the Operating Partnership shall be
treated as if such Subsidiary were a subsidiary under GAAP), but excluding
accounts receivable and intangibles; provided, however, that the term "Total
Unencumbered Assets" shall not include any assets which have been deposited in
trust to defease any indebtedness or any other obligation (whether through a
covenant defeasance or otherwise) pursuant to the terms of such indebtedness or
other obligation or the terms of any instrument creating or evidencing it.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Operating
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with
6
<PAGE>
GAAP (except for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under
GAAP).
"Unsecured Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Operating Partnership or any of
its Subsidiaries.
ARTICLE TWO
THE SERIES OF SECURITIES
SECTION 2.1. Title of the Securities.
There shall be Securities designated the "6 1/2% Dealer remarketable
securities due April 5, 2011" (the "Drs.")
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Drs. shall be limited to
$100,000,000, and, except as provided in this Section and in Section 306 of the
Indenture, the Operating Partnership shall not execute and the Trustee shall not
authenticate or deliver Drs. in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Drs., is intended to or shall limit execution by the
Operating Partnership or authentication or delivery by the Trustee of Drs. under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Drs.
The Drs. will bear interest from March 31, 1998 or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on April 5 and October 5 of each year,
commencing October 5, 1998 (each, an "Interest Payment Date"), to the Persons in
whose name such Drs. are registered on the fifteenth calendar (whether or not a
Business Day), immediately preceding the related Interest Payment Date (each, a
"Regular Record Date"). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The interest so payable on any Drs. which is
not punctually paid or duly provided for on any Interest Payment Date shall be
payable to the Person in whose name such Drs. is registered on the relevant
Regular Record Date, at the close of business by notice by or on behalf of the
Operating Partnership to the holders of the Drs., mailed by first class mail not
less than 15 days prior to the Regular Record Date to their last address as they
shall appear upon the Securities Register not less than five days preceding the
date of payment. Payment may be made by check mailed to the holder's address as
it appears on the Securities Register.
The Drs. will bear interest at the rate of 6 1/2% per annum to April 5,
2001 (the "Remarketing Date"). If pursuant to the Remarketing Agreement, the
Remarketing Dealer elects to
7
<PAGE>
remarket the Drs., then except as otherwise provided (i) the Drs. shall be
subject to mandatory tender to the Remarketing Dealer at 100% of the principal
amount thereof for remarketing on the Remarketing Date subject to the terms and
conditions provided for in Section 2.5 herein and (ii) on and after the
Remarketing Date, the Drs. shall bear interest at a rate determined by the
Remarketing Dealer in accordance with the procedures set forth in Section 2.6
herein.
If any Interest Payment Date or the Stated Maturity Date falls on a day
that is not a Business Day, the required payment shall be made on the next
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date, as the case may be.
The Drs. will mature on April 5, 2011 (the "Stated Maturity Date").
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness, other than intercompany Indebtedness
(representing Indebtedness to which the only parties are the Operating
Partnership and any of its Subsidiaries (but only so long as such Indebtedness
is held solely by any of the Operating Partnership and any of its
Subsidiaries)), if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that for purposes hereof, each Subsidiary of the
Operating Partnership shall be treated as if such Subsidiary were a subsidiary
under GAAP) is greater than 60% of the sum of (without duplication) (i) the
Total Assets as of the end of the calendar quarter covered in the Operating
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee) prior to the incurrence
of such additional Indebtedness and (ii) the purchase price of any real estate
assets or mortgages receivable acquired, and the amount of any securities
offering proceeds received (to the extent such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Indebtedness), by
the Operating Partnership or any of its Subsidiaries since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(b) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Operating Partnership and its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Indebtedness, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Operating Partnership and its Subsidiaries since the first
day of such four-quarter period had been repaid or retired at the beginning of
such period (except that, in making such computation, the amount of In-
8
<PAGE>
debtedness under any revolving credit facility shall be computed based upon the
average daily balance of such Indebtedness during such period); (iii) in the
case of Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
calculation; and (iv) in the case of any acquisition or disposition by the
Operating Partnership or its Subsidiaries of any asset or group of assets since
the first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Indebtedness had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
(c) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur Indebtedness secured by any Encumbrance upon any of the
property of the Operating Partnership or any of its Subsidiaries if, immediately
after giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Operating Partnership and its Subsidiaries on a
consolidated basis determined in accordance with GAAP (except that for the
purposes hereof, each Subsidiary of the Operating Partnership shall be treated
as if such Subsidiary were a subsidiary under GAAP) which is secured by any
Encumbrance on property of the Operating Partnership or any of its Subsidiaries
is greater than 40% of the sum of (without duplication) (i) the Total Assets as
of the end of the calendar quarter covered in the Operating Partnership's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Exchange Act, with the Trustee) prior to the incurrence of such additional
Indebtedness and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Operating
Partnership or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(d) The Operating Partnership and its Subsidiaries may not at any time own
Total Unencumbered Assets equal to or less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that for the purposes hereof, each Subsidiary of
the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to be
"incurred" by the Operating Partnership or a Subsidiary of the Operating
Partnership whenever the Operating Partnership or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof.
9
<PAGE>
SECTION 2.5. Mandatory Tender on Remarketing Date; Purchase and Settlement.
(a) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Operating Partnership and the Trustee as to whether it elects to purchase
all of the outstanding Drs. on the Remarketing Date. If, and only if, the
Remarketing Dealer so elects, the Drs. shall be subject to mandatory tender to
the Remarketing Dealer for purchase and remarketing on the Remarketing Date,
upon the terms and subject to the conditions described herein and in the
Remarketing Agreement. The purchase price of the Drs. shall be equal to 100% of
the principal amount thereof. No holder or beneficial owner of the Drs. shall
have any rights or claims under the Remarketing Agreement or against the
Operating Partnership or the Remarketing Dealer as a result of the Remarketing
Dealer not purchasing such Drs.
(b) The tender and settlement procedures with respect to the Drs. set forth
in the Remarketing Agreement shall be subject to modification, without the
consent of the holders of the Drs., to the extent required by DTC or, if the
book-entry system is no longer available for the Drs. at the time of the
remarketing, to the extent required to facilitate the tendering and remarketing
of Drs. in certificated form. In addition, the Remarketing Dealer may modify the
settlement procedures without the consent of the holders of the Drs. in order to
facilitate the settlement process.
(c) The Operating Partnership hereby agrees with the Trustee and the
holders of Drs. that (i) at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Drs. in book-entry
form and (ii) it waives any discretionary right that it otherwise may have under
the Indenture to cause the Drs. to be issued in certificated form.
SECTION 2.6. Determination of Interest Rate to Maturity.
(a) The Remarketing Dealer shall determine the interest rate the Drs. will
bear from the Remarketing Date to the Stated Maturity Date (the "Interest Rate
to Maturity") on the third Business Day immediately preceding the Remarketing
Date (the "Determination Date") by soliciting by 3:30 p.m., New York City time,
the Reference Corporate Dealers for firm, committed bids to purchase all
outstanding Drs. at the Dollar Price, and by selecting the lowest such firm,
committed bid (regardless of whether each of the Reference Corporate Dealers
actually submits a bid). Each bid shall be expressed in terms of the Interest
Rate to Maturity that the Drs. would bear (quoted as a spread over the Base
Rate) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
10
<PAGE>
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Operating Partnership and the
Trustee. The Remarketing Dealer shall have the discretion to select the time at
which the Comparable Treasury Price is determined on the Determination Date.
(b) The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to this Section 2.6. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
(c) If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Operating Partnership, the Trustee and DTC by
telephone, confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
SECTION 2.7. Repurchase.
If the Remarketing Dealer (i) does not elect to exercise its right to a
mandatory tender of the Drs., (ii) shall not have received by the required time
on the Determination Date any firm, committed bids to purchase all of the Drs.
in accordance with Section 2.6 of this Supplemental Indenture or (iii) for any
other reason does not purchase all of the Drs. on the Remarketing Date, then the
Operating Partnership shall repurchase on the Remarketing Date, at a price equal
to 100% of the principal amount of the Drs. plus all accrued interest, if any,
on the Drs. to (but excluding) the Remarketing Date, any Drs. that have not been
purchased by the Remarketing Dealer on the Remarketing Date.
SECTION 2.8. Redemption.
If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date, the Operating Partnership shall have the right to redeem the
Drs., in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at a redemption price equal to the greater of (i) 100% of the aggregate
principal amount of the Drs. and (ii) the Dollar Price, by giving written notice
of such redemption to the Remarketing Dealer
(x) no later than the Business Day immediately prior to the
Determination Date or
(y) if fewer than three Reference Corporate Dealers submit timely
firm, committed bids to the Remarketing Dealer on the Determination Date in
accordance with Section 2.6 of this Supplemental Indenture, immediately
after the deadline set by the Remarketing Dealer for receiving such bids
has passed.
11
<PAGE>
In either such case, the Operating Partnership shall pay such redemption
price for the Drs. in same-day funds by wire transfer on the Remarketing Date to
an account designated by the Remarketing Dealer.
SECTION 2.9. Places of Payment.
The Places of Payment where the Drs. may be presented or surrendered for
payment, where the Drs. may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Operating Partnership in
respect of the Drs. and the Indenture may be served shall be in (i) the Borough
of Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be located at First Trust National Association, 100 Wall
Street, Suite 2000, New York, New York 10005 and (ii) the City of Chicago,
Illinois and the office or agency for such purpose shall initially be located at
First Trust National Association, One Illinois Center, 111 East Wacker Drive,
Suite 3000, Chicago, Illinois 60601.
SECTION 2.10. Method of Payment.
Payment of the principal of and interest on the Drs. will be made at the
office or agency of the Operating Partnership maintained for that purpose in the
Borough of Manhattan, The City of New York (which shall initially be an office
or agency of the Trustee), in immediately available funds, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Operating Partnership, payments of principal and interest on the
Drs. (other than payments of principal and interest due on the Stated Maturity
Date) may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within
the United States.
SECTION 2.11. Registered Securities; Global Form.
The Drs. shall be issuable and transferable in fully registered form as
Registered Securities, without coupons in denominations of $1,000 and any
integral multiple thereof. The Drs. shall each be issued in the form of one or
more permanent Global Securities. The depository for the Drs. shall be DTC. The
Drs. shall not be issuable in definitive form except as provided in Section 305
of the Indenture. The Drs. shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.12. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the
Drs.
SECTION 2.13. Defeasance.
The provisions of Sections 1402 and 1403 of the Indenture, together with
the other provisions of Article Fourteen of the Indenture, shall be applicable
to the Drs. The provisions of Section 1403 of the Indenture shall apply to the
covenants set forth in Sections 2.4 and 2.14 of this Supplemental Indenture.
12
<PAGE>
SECTION 2.14. Provision of Financial Information.
Whether or not the Operating Partnership is subject to Section 13 or 15(d)
of the Exchange Act, the Operating Partnership will, to the extent permitted
under the Exchange Act, file with the Commission the annual reports, quarterly
reports and other documents which the Operating Partnership would have been
required to file with the Commission pursuant to such Section 13 or 15(d) if the
Operating Partnership were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Operating Partnership would have been required so to file such
documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) if the Operating Partnership is not then subject to
Section 13 or 15(d) of the Exchange Act, transmit by mail to all Holders of the
Drs., as their names and addresses appear in the Security Register, without cost
to such Holders, copies of the annual reports and quarterly reports which the
Operating Partnership would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Operating Partnership
were subject to such Sections and (ii) file with the Trustee copies of annual
reports, quarterly reports and other documents which the Operating Partnership
is required to file with the Commission or would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Operating Partnership were subject to such Sections and (y) if filing such
documents by the Operating Partnership with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 2.15. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1009 of the Indenture, the
Operating Partnership may omit to comply with any term, provision or condition
set forth in Sections 1004 to 1008, inclusive, of the Indenture, with Sections
2.4 and 2.14 of this Supplemental Indenture and with any other term, provision
or condition with respect to the Drs. (except any such term, provision or
condition which could not be amended without the consent of all Holders of the
Drs. ), if before or after the time for such compliance the Holders of at least
a majority in principal amount of all outstanding Drs., by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Operating Partnership
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
13
<PAGE>
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture continues in
full force and effect and is in all respects confirmed and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Drs. shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: /s/ Michael J. Havala
------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer, Treasurer
and Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ F. Sgaraglino
------------------------------------------
Name: F. Sgaraglino
Title: Vice President
By: /s/ Larry Kusch
------------------------------------------
Name: Larry Kusch
Title: Assistant Vice President
<PAGE>
EXHIBIT A
A-1
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FIRST INDUSTRIAL, L.P.
6 1/2% Dealer remarketable securitySM ("Drs.SM")
due April 5, 2011
No. 1
$100,000,000 CUSIP: 322055RAD9
First Industrial, L.P., a Delaware limited partnership (hereinafter called
the "Company"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of ONE HUNDRED MILLION U.S. DOLLARS on
April 5, 2011, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, State of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, semi-annually on
April 5 and October 5 of each year (each, an "Interest Payment Date"), on said
principal sum at the rate per annum specified below, at such office or agency,
in like coin or currency, from the April 5 or October 5, as the case may be, to
which interest on the Securities has been paid preceding the date hereof (unless
the date hereof is an April 5 or an October 5 to which interest has been paid,
in which case from the date hereof, or unless the date hereof is prior to any
interest having been paid, in which case from March 31, 1998) until payment of
said principal sum has been made or duly provided for. If the Company shall
default in the payment of interest when due on such April 5 or October 5, then
this Security shall bear interest from the next preceding date to which interest
has been paid, or, if no interest has been paid, from March 31, 1998. The
interest so payable on any April 5 or October 5 shall be paid to the person in
whose name this Security shall be registered at the close of business on the
fifteenth calendar day (whether or not a Business Day) immediately preceding the
related Interest Payment Date (each, a "Regular Record Date"). For purposes of
this Security, "Business Day" means any day
- ----------
SM "Dealer remarketable security" and "Drs." are service marks of J.P. Morgan
Securities Inc.
<PAGE>
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or the City of Chicago are authorized or obligated by law,
regulation or executive order to be closed.
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. The Company may
pay interest by check mailed to the holder's address as it appears on the
Security register.
The rate of interest on this Security shall be 6 1/2% per annum to April 5,
2001 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of March 31, 1998 (the
"Remarketing Agreement") between J.P. Morgan Securities Inc., as Remarketing
Dealer (the "Remarketing Dealer"), and the Company, then, except as otherwise
set forth on the reverse hereof, (i) this Security shall be subject to mandatory
tender to the Remarketing Dealer for remarketing on the Remarketing Date, on the
terms and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this Security shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
in Section 4 on the reverse hereof (the "Interest Rate to Maturity"). If the
Remarketing Dealer does not remarket the Securities pursuant to the Remarketing
Agreement, this Security shall be subject to mandatory tender to the Company for
repurchase on the Remarketing Date, on the terms and subject to the conditions
set forth on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
-2-
<PAGE>
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Security to be
signed by its duly authorized officers and has caused its corporate seal to be
affixed hereunto.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its
general partner
By:
----------------------------------------
Title:
Attest:
__________________________________
Secretary
Certificate of Authentication
This is one of the Securities of the series designated therein and described in
the within mentioned Indenture.
U.S. Bank Trust National Association
f/k/a First Trust National Association
as Trustee
By:
------------------------------------------
Authorized Signatory
<PAGE>
First Industrial, L.P.
6 1/2% Dealer remarketable securitySM ("Drs.SM")
due April 5, 2011
1. Indenture. (a) This Security is one of the duly authorized issue of debt
securities of the Company (herein referred to as the "Debt Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture dated as of May 13, 1997 (as supplemented, including the
Supplemental Indenture dated as of March 26, 1998 in respect of this series of
Securities, the "Indenture") between the Company and First Trust National
Association, as Trustee (herein referred to as the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders (the words
"holders", "holder", "Securityholders" or "Securityholder" mean the registered
holder(s)) of the Debt Securities.
(b) The Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
denominated in different currencies, may be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, may be
subject to additional covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as the
6 1/2% Dealer remarketable securitiesSM ("Drs.SM") due April 5, 2011 of the
Company and such series is limited in aggregate principal amount to
$100,000,000. References herein to "Securities" or "Drs." shall mean the Debt
Securities of said series.
(c) All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five Business Days prior to the Remarketing Date
(the "Notification Date"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all (but not less than all) of
the outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of any Securities shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
such Securities.
R-1
<PAGE>
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC or, if the book-entry system is no
longer available for the Securities at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of Securities in
certificated form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in
book-entry form and (ii) it waives any discretionary right that it otherwise may
have under the Indenture to cause the Securities to be issued in certificated
form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Drs. will bear from the
Remarketing Date to the Stated Maturity Date (the "Interest Rate to Maturity")
on the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submit
bids). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over 5.67% per annum (the "Base
Rate")) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. The Remarketing Dealer
shall have the discretion to select the time at which the Interest Rate to
Maturity is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account (at a price equal to the lowest
firm, committed bid, as described above) or (ii) sell the Drs. to the Reference
Corporate Dealer submitting the low-
R-2
<PAGE>
est firm, committed, bid. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
5. Repurchase. If the Remarketing Dealer for any reason does not purchase
all of the Drs. on the Remarketing Date, then all holders will be required to
tender, and the Company shall repurchase, on the Remarketing Date, at a price
equal to 100% of the principal amount of the Drs. plus all accrued interest, if
any, on the Drs. to (but excluding) the Remarketing Date, all Drs. that have not
been purchased by the Remarketing Dealer on the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the Drs.
on the Remarketing Date, the Company shall have the right to redeem the Drs., in
whole but not in part, from the Remarketing Dealer on the Remarketing Date at a
redemption price equal to the greater of (i) 100% of the aggregate principal
amount of the Drs. and (ii) the Dollar Price, by giving written notice of such
redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
7. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of indebtedness it may incur, a covenant compelling it to disclose
certain financial information, covenants requiring it to maintain its material
properties and adequate insurance thereon, and a covenant requiring it to pay or
discharge all taxes, all as more fully described in the Indenture. All of such
covenants are subject to the covenant defeasance procedures outlined in the
Indenture.
8. Effect of Event of Default. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such decla-
R-3
<PAGE>
ration shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
9. Tax Treatment; Agreement to Tender. The Company and the holders of this
Security (and each holder of a beneficial interest herein) by accepting this
Security, agree to treat the Drs. as fixed rate debt instruments that mature on
the Remarketing Date for United States Federal income tax purposes. Furthermore,
each holder of this Security (and each holder of a beneficial interest herein)
irrevocably agrees that this Security shall automatically be tendered on the
Remarketing Date (a) to the Remarketing Dealer if the Remarketing Dealer elects
to remarket the Securities on the terms and conditions set forth herein or (b)
to the Company if the Remarketing Dealer does not remarket the Securities on the
terms and conditions set forth herein.
10. Amendments and Waivers. Modifications and amendments of the Indenture
will be permitted to be made only with the consent of the holders of not less
than a majority in principal amount of all outstanding Debt Securities issued
under the Indenture that are affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the holder of each such Debt Security affected thereby, (a) change
the stated maturity of the principal of, or any installment of interest (or
premium or Make-Whole Amount, if any) on, any such Debt Security; (b) reduce the
principal of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder of any such
Debt Security; (c) change the place of payment, or the coin or currency, for
payment of principal of, premium or Make-Whole Amount, if any, or interest on
any such Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities of any series
necessary to modify or amend the Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; (f) change the
currency or currency unit in which any Debt Security or any premium or interest
thereon is payable; or (g) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive covenants of the applicable Indenture.
R-4
<PAGE>
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to evidence the succession of
another person to the Company as obligor under the Indenture; (b) to add to the
covenants of the Company for the benefit of the holders of all or any series of
Debt Securities or to surrender any right or power conferred upon the Company in
the Indenture; (c) to add events of default for the benefit of the holders of
all or any series of Debt Securities; (d) to add or change any provisions of the
Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided that such action shall not adversely
affect the interests of the holders of the Debt Securities of any series in any
material respect; (e) to change or eliminate any provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there are no Debt Securities outstanding of any series created prior thereto
which are entitled to the benefit of such provision; (f) to secure the Debt
Securities; (g) to establish the form or terms of Debt Securities of any series;
(h) to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under the Indenture by more than one
Trustee; (i) to cure any ambiguity, defect or inconsistency in the Indenture,
provided that such action shall not adversely affect the interests of holders of
Debt Securities of any series issued under the Indenture; or (j) to supplement
any of the provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities,
provided that such action shall not adversely affect the interests of the
holders of the outstanding Debt Securities of any series in any material
respect.
11. Denominations; Transfer. (a) The Securities are issuable in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
(b) A certificate in global form representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Securities or a nominee of
such successor Depositary.
12. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
13. Governing Law. The laws of the State of New York govern the Indenture
and this Security.
R-5
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
PLEASE INSERT TAXPAYER IDENTIFICATION
NUMBER OF ASSIGNEE
________________________________________
________________________________________
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security of First Industrial, L.P. and all rights thereunder and
hereby irrevocably constitutes and appoints ______________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises
_________________________________
Dated: Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE(S) SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST
COMPANY, A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH
OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE
TRANSFER AGENT.
R-6
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FIRST INDUSTRIAL, L.P.
6 1/2% Dealer remarketable securitySM ("Drs.SM")
due April 5, 2011
No. 1
$100,000,000 CUSIP: 322055RAD9
First Industrial, L.P., a Delaware limited partnership (hereinafter
called the "Company"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of ONE HUNDRED MILLION U.S. DOLLARS on
April 5, 2011, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, State of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, semi-annually on
April 5 and October 5 of each year (each, an "Interest Payment Date"), on said
principal sum at the rate per annum specified below, at such office or agency,
in like coin or currency, from the April 5 or October 5, as the case may be, to
which interest on the Securities has been paid preceding the date hereof (unless
the date hereof is an April 5 or an October 5 to which interest has been paid,
in which case from the date hereof, or unless the date hereof is prior to any
interest having been paid, in which case from March 31, 1998) until payment of
said principal sum has been made or duly provided for. If the Company shall
default in the payment of interest when due on such April 5 or October 5, then
this Security shall bear interest from the next preceding date to which interest
has been paid, or, if no interest has been paid, from March 31, 1998. The
interest so payable on any April 5 or October 5 shall be paid to the person in
whose name this Security shall be registered at the close of business on the
fifteenth calendar day (whether or not a Business Day) immediately preceding the
related Interest Payment Date (each, a "Regular Record Date"). For purposes of
this Security, "Business Day" means any day
- ----------
SM "Dealer remarketable security" and "Drs." are service marks of J.P. Morgan
Securities Inc.
<PAGE>
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or the City of Chicago are authorized or obligated by law,
regulation or executive order to be closed.
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. The Company may
pay interest by check mailed to the holder's address as it appears on the
Security register.
The rate of interest on this Security shall be 6 1/2% per annum to April 5,
2001 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of March 31, 1998 (the
"Remarketing Agreement") between J.P. Morgan Securities Inc., as Remarketing
Dealer (the "Remarketing Dealer"), and the Company, then, except as otherwise
set forth on the reverse hereof, (i) this Security shall be subject to mandatory
tender to the Remarketing Dealer for remarketing on the Remarketing Date, on the
terms and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this Security shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
in Section 4 on the reverse hereof (the "Interest Rate to Maturity"). If the
Remarketing Dealer does not remarket the Securities pursuant to the Remarketing
Agreement, this Security shall be subject to mandatory tender to the Company for
repurchase on the Remarketing Date, on the terms and subject to the conditions
set forth on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
2
<PAGE>
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Security to be
signed by its duly authorized officers and has caused its corporate seal to be
affixed hereunto.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its
general partner
By: /s/ Michael J. Havala
------------------------------------------
Title: Chief Financial Officer, Treasurer
and Secretary
Attest:
/s/ Scott A. Musil
- ---------------------------
Secretary
Certificate of Authentication
This is one of the Securities of the series designated therein and described in
the within mentioned Indenture.
U.S. Bank Trust National Association
f/k/a First Trust National Association
as Trustee
By: /s/ H.H. Hall, Jr.
-----------------------------------
Authorized Signatory
3
<PAGE>
First Industrial, L.P.
6 1/2% Dealer remarketable securitySM ("Drs.SM")
due April 5, 2011
1. Indenture. (a) This Security is one of the duly authorized issue of debt
securities of the Company (herein referred to as the "Debt Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture dated as of May 13, 1997 (as supplemented, including the
Supplemental Indenture dated as of March 26, 1998 in respect of this series of
Securities, the "Indenture") between the Company and First Trust National
Association, as Trustee (herein referred to as the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders (the words
"holders", "holder", "Securityholders" or "Securityholder" mean the registered
holder(s)) of the Debt Securities.
(b) The Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
denominated in different currencies, may be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, may be
subject to additional covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as the
6 1/2% Dealer remarketable securitiesSM ("Drs.SM") due April 5, 2011 of the
Company and such series is limited in aggregate principal amount to
$100,000,000. References herein to "Securities" or "Drs." shall mean the Debt
Securities of said series.
(c) All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five Business Days prior to the Remarketing Date
(the "Notification Date"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all (but not less than all) of
the outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of any Securities shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
such Securities.
R-1
<PAGE>
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC or, if the book-entry system is no
longer available for the Securities at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of Securities in
certificated form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in
book-entry form and (ii) it waives any discretionary right that it otherwise may
have under the Indenture to cause the Securities to be issued in certificated
form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Drs. will bear from the
Remarketing Date to the Stated Maturity Date (the "Interest Rate to Maturity")
on the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submit
bids). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over 5.67% per annum (the "Base
Rate")) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. The Remarketing Dealer
shall have the discretion to select the time at which the Interest Rate to
Maturity is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account (at a price equal to the lowest
firm, committed bid, as described above) or (ii) sell the Drs. to the Reference
Corporate Dealer submitting the low-
R-2
<PAGE>
est firm, committed, bid. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
5. Repurchase. If the Remarketing Dealer for any reason does not purchase
all of the Drs. on the Remarketing Date, then all holders will be required to
tender, and the Company shall repurchase, on the Remarketing Date, at a price
equal to 100% of the principal amount of the Drs. plus all accrued interest, if
any, on the Drs. to (but excluding) the Remarketing Date, all Drs. that have not
been purchased by the Remarketing Dealer on the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the Drs.
on the Remarketing Date, the Company shall have the right to redeem the Drs., in
whole but not in part, from the Remarketing Dealer on the Remarketing Date at a
redemption price equal to the greater of (i) 100% of the aggregate principal
amount of the Drs. and (ii) the Dollar Price, by giving written notice of such
redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
7. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of indebtedness it may incur, a covenant compelling it to disclose
certain financial information, covenants requiring it to maintain its material
properties and adequate insurance thereon, and a covenant requiring it to pay or
discharge all taxes, all as more fully described in the Indenture. All of such
covenants are subject to the covenant defeasance procedures outlined in the
Indenture.
8. Effect of Event of Default. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such decla-
R-3
<PAGE>
ration shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
9. Tax Treatment; Agreement to Tender. The Company and the holders of this
Security (and each holder of a beneficial interest herein) by accepting this
Security, agree to treat the Drs. as fixed rate debt instruments that mature on
the Remarketing Date for United States Federal income tax purposes. Furthermore,
each holder of this Security (and each holder of a beneficial interest herein)
irrevocably agrees that this Security shall automatically be tendered on the
Remarketing Date (a) to the Remarketing Dealer if the Remarketing Dealer elects
to remarket the Securities on the terms and conditions set forth herein or (b)
to the Company if the Remarketing Dealer does not remarket the Securities on the
terms and conditions set forth herein.
10. Amendments and Waivers. Modifications and amendments of the Indenture
will be permitted to be made only with the consent of the holders of not less
than a majority in principal amount of all outstanding Debt Securities issued
under the Indenture that are affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the holder of each such Debt Security affected thereby, (a) change
the stated maturity of the principal of, or any installment of interest (or
premium or Make-Whole Amount, if any) on, any such Debt Security; (b) reduce the
principal of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder of any such
Debt Security; (c) change the place of payment, or the coin or currency, for
payment of principal of, premium or Make-Whole Amount, if any, or interest on
any such Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities of any series
necessary to modify or amend the Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; (f) change the
currency or currency unit in which any Debt Security or any premium or interest
thereon is payable; or (g) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive covenants of the applicable Indenture.
R-4
<PAGE>
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to evidence the succession of
another person to the Company as obligor under the Indenture; (b) to add to the
covenants of the Company for the benefit of the holders of all or any series of
Debt Securities or to surrender any right or power conferred upon the Company in
the Indenture; (c) to add events of default for the benefit of the holders of
all or any series of Debt Securities; (d) to add or change any provisions of the
Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided that such action shall not adversely
affect the interests of the holders of the Debt Securities of any series in any
material respect; (e) to change or eliminate any provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there are no Debt Securities outstanding of any series created prior thereto
which are entitled to the benefit of such provision; (f) to secure the Debt
Securities; (g) to establish the form or terms of Debt Securities of any series;
(h) to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under the Indenture by more than one
Trustee; (i) to cure any ambiguity, defect or inconsistency in the Indenture,
provided that such action shall not adversely affect the interests of holders of
Debt Securities of any series issued under the Indenture; or (j) to supplement
any of the provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities,
provided that such action shall not adversely affect the interests of the
holders of the outstanding Debt Securities of any series in any material
respect.
11. Denominations; Transfer. (a) The Securities are issuable in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
(b) A certificate in global form representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Securities or a nominee of
such successor Depositary.
12. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
13. Governing Law. The laws of the State of New York govern the Indenture
and this Security.
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<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
PLEASE INSERT TAXPAYER IDENTIFICATION
NUMBER OF ASSIGNEE
__________________________________
__________________________________
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Security of First Industrial, L.P. and all rights thereunder and
hereby irrevocably constitutes and appoints ______________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises
___________________________________________
Dated: Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN
EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER. THE SIGNATURE(S) SHOULD BE GUARANTEED BY A
COMMERCIAL BANK OR TRUST COMPANY, A MEMBER ORGANIZATION OF A
NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE
SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE TRANSFER
AGENT.
R-6
