<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D C 20549
FORM 10-K
(X) ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 1997
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from____to____
Commission File Number 1-13102
FIRST INDUSTRIAL REALTY TRUST, INC
(Exact name of Registrant as specified in its Charter)
MARYLAND 36-3935116
(State or other jurisdiction of (I R S Employer
incorporation or organization) 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)
Securities registered pursuant to Section 12(b) of the Act:
COMMON STOCK
(Title of class)
NEW YORK STOCK EXCHANGE
(Name of exchange on which registered)
91/2% SERIES A CUMULATIVE PREFERRED STOCK
<TABLE>
<S> <C>
DEPOSITARY SHARES EACH REPRESENTING 1/100 OF A SHARE OF 8 3/4% SERIES B CUMULATIVE PREFERRED STOCK
DEPOSITARY SHARES EACH REPRESENTING 1/100 OF A SHARE OF 85/8% SERIES C CUMULATIVE PREFERRED STOCK
DEPOSITARY SHARES EACH REPRESENTING 1/100 OF A SHARE OF 7 95% SERIES D CUMULATIVE PREFERRED STOCK
DEPOSITARY SHARES EACH REPRESENTING 1/100 OF A SHARE OF 7 90% SERIES E CUMULATIVE PREFERRED STOCK
</TABLE>
(Title of class)
NEW YORK STOCK EXCHANGE
(Name of exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days Yes X No
--- ---
Indicate by checkmark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K [ ]
The aggregate market value of the voting and non-voting stock held by
non-affiliates of the Registrant was approximately $1.2 billion based on the
closing price on the New York Stock Exchange for such stock on March 16, 1998
At March 16, 1998, 36,551,087 shares of the Registrant's Common Stock, $ 01 par
value, were outstanding
DOCUMENTS INCORPORATED BY REFERENCE
Part III incorporates certain information by reference to the Registrant's
definitive proxy statement to be filed with respect to the Annual Meeting of
Stockholders to be held on May 14, 1998
<PAGE> 2
FIRST INDUSTRIAL REALTY TRUST, INC
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PART I
Item 1 Business.................................................................................... 3
Item 2 The Properties.............................................................................. 7
Item 3 Legal Proceedings........................................................................... 23
Item 4 Submission of Matters to a Vote of Security Holders......................................... 23
PART II
Item 5 Market for Registrant's Common Equity and Related Stockholder Matters....................... 23
Item 6. Selected Financial Data .................................................................... 23
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations....... 26
Item 8. Financial Statements and Supplementary Data ................................................ 34
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures....... 34
PART III
Item 10.Directors and Executive Officers of the Registrant ......................................... 34
Item 11.Executive Compensation ..................................................................... 34
Item 12.Security Ownership of Certain Beneficial Owners and Management ............................. 34
Item 13.Certain Relationships and Related Transactions ............................................. 34
PART IV
Item 14.Exhibits, Financial Statements, Financial Statement Schedule and Reports on Form 8-K........ 35
SIGNATURES ............................................................................................. 40
</TABLE>
1
<PAGE> 3
This report contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act of 1993, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. First Industrial Realty
Trust, Inc. (the "Company") intends such forward-looking statements to be
covered by the safe harbor provisions for forward-looking statements contained
in the Private Securities Litigation Reform Act of 1995, and is including this
statement for purposes of complying with those safe harbor provisions.
Forward-looking statements, which are based on certain assumptions and describe
future plans, strategies and expectations of the Company, are generally
identifiable by use of the words "believe," "expect," "intend," "anticipate,"
"estimate," "project," or similar expressions. The Company's ability to predict
results or the actual effect of future plans or strategies is inherently
uncertain. Factors which could have a material adverse affect on the operations
and future prospects of the Company on a consolidated basis include, but are not
limited to, changes in: economic conditions generally and the real estate market
specifically, legislative/regulatory changes (including changes to laws
governing the taxation of REITs), availability of capital, interest rates,
competition, supply and demand for industrial properties in the Company's
current and proposed market areas and general accounting principles, policies
and guidelines applicable to REITs. These risks and uncertainties should be
considered in evaluating forward-looking statements and undue reliance should
not be placed on such statements. Further information concerning the Company and
its business, including additional factors that could materially affect the
Company's financial results, is included herein and in the Company's other
filings with the Securities and Exchange Commission.
2
<PAGE> 4
PART I
ITEM 1. BUSINESS
THE COMPANY
GENERAL
First Industrial Realty Trust, Inc. and its subsidiary partnerships
(the "Company") is a self-administered and fully integrated real estate company
which owns, manages, acquires and develops industrial real estate. The Company
completed its initial public offering in June 1994 (the "Initial Offering").
Upon consummation of the Initial Offering, the Company owned 226 bulk warehouse
and light industrial properties which contained an aggregate of 17.4 million
square feet of gross leasable area ("GLA"). As of December 31, 1997, the
Company's portfolio consisted of 769 in-service bulk warehouse and light
industrial properties containing approximately 56.6 million square feet of GLA
located in 22 states.
The Company's interests in its properties and land parcels are held
through partnerships controlled by the Company, including First Industrial, L.P.
(the "Operating Partnership"), of which the Company is the sole general partner,
as well as, among others, First Industrial Financing Partnership, L.P. (the
"Financing Partnership"), First Industrial Securities, L.P. (the "Securities
Partnership"), First Industrial Mortgage Partnership, L.P. (the "Mortgage
Partnership"), First Industrial Pennsylvania, L.P. (the "Pennsylvania
Partnership"), First Industrial Harrisburg, L.P. (the "Harrisburg Partnership"),
First Industrial Indianapolis, L.P. (the "Indianapolis Partnership") and First
Industrial Development Services, L.P., the sole general partner of each is a
wholly-owned subsidiary of the Company, and the sole limited partner of each is
the Operating Partnership.
The Company's initial interest in the Operating Partnership was
obtained in connection with the Initial Offering in exchange for the
contribution of substantially all of the net proceeds thereof. Immediately prior
to the Initial Offering, the Operating Partnership, which had previously been
controlled by members of The Shidler Group, owned 23 properties. In connection
with the Initial Offering, (1) entities affiliated with First Industrial
Chairman of the Board Jay H. Shidler and other members of The Shidler Group
contributed to the Operating Partnership 30 additional properties and the assets
of certain property management operations and received $3.2 million in cash and
ownership of 2,306,399 shares of the Company's common stock and 830,017 limited
partnership interests in the Operating Partnership ("Units") having an aggregate
value of $73.7 million (based on the initial public offering price of $23.50)
and the assumption by the Operating Partnership of $107.4 million of
indebtedness owed to affiliates of Jay H. Shidler and other members of The
Shidler Group, (2) businesses of which First Industrial Executive Officers
Michael G. Damone and Anthony Muscatello, and former Senior Regional Director
Steven B. Hoyt were principals, contributed to the Operating Partnership 97
properties in the Detroit, central Pennsylvania and Minneapolis/St. Paul areas,
respectively, and certain property management operations (such businesses,
together with The Shidler Group, the "Contributing Businesses") and received
$3.9 million in cash, 475,710 Units having a value of $11.2 million (based on
the initial public offering price of $23.50) and the assumption of $131.4
million of indebtedness, (3) the Company and the Operating Partnership
contributed a portion of the net proceeds of the Initial Offering to the
Financing Partnership, (4) the Financing Partnership entered into a $300 million
mortgage loan and (5) the Operating Partnership and the Financing Partnership
acquired 76 additional properties from unaffiliated third parties.
First Industrial Realty Trust, Inc. is a Maryland corporation organized
on August 10, 1993, and is a real estate investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code").
The Company is continuing and expanding the midwestern industrial
property business of The Shidler Group, a national organization with over 20
years experience in the industrial real estate business. The Company utilizes an
operating approach which combines the effectiveness of locally based, or
decentralized, property management, acquisition and development functions with
the cost efficiencies of centralized acquisition and development support,
capital markets expertise, asset management and fiscal control systems. At March
16, 1998, the Company had 298 employees.
The Company has grown and will seek to continue to grow through the
acquisition of additional industrial properties and businesses, and through the
development, primarily on a pre-leased basis, of build-to-suit properties.
3
<PAGE> 5
BUSINESS OBJECTIVES AND GROWTH PLANS
The Company's fundamental business objective is to maximize
the total return to its stockholders through increases in per share
distributions and increases in the value of the Company's properties
and operations. The Company's growth plan includes the following
elements:
o Internal Growth. The Company seeks to grow internally by (i) increasing
revenues by renewing or re-leasing spaces subject to expiring leases at
higher rental levels; (ii) increasing occupancy levels at properties
where vacancies exist and maintaining occupancy elsewhere; (iii)
controlling and minimizing operating expenses; and (iv) renovating
existing properties.
o External Growth. The Company seeks to grow externally through (i) the
acquisition of portfolios of industrial properties, industrial property
businesses or individual properties which meet the Company's investment
parameters; (ii) the development of primarily build-to-suit properties;
and (iii) the expansion of its properties.
BUSINESS STRATEGIES
The Company utilizes the following seven strategies in
connection with the operation of its business:
o Organization Strategy. The Company implements its decentralized
property operations strategy through the use of experienced regional
management teams and local property managers. Each operating region is
headed by a senior regional director, who is a senior executive officer
of, and has an equity interest in, the Company. The Company provides
acquisition, development and financing assistance, asset management
oversight and financial reporting functions from its headquarters in
Chicago to support its regional operations. The Company believes the
size of its portfolio enables it to realize operating efficiencies by
spreading overhead over many properties and by negotiating quantity
purchasing discounts.
o Market Strategy. The Company invests in markets where it can achieve
size and economies of scale. Based on the size of its portfolios in its
current markets, which as of December 31, 1997 averaged approximately
2.4 million square feet per market, and the experience of its senior
regional directors, the Company believes that it has sufficient market
presence and resources to compete effectively. As of December 31, 1997,
the Company owned portfolios in the metropolitan areas of Atlanta,
Georgia; Chicago, Illinois; Cincinnati, Ohio; Cleveland, Ohio;
Columbus, Ohio; Dallas, Texas; Dayton, Ohio; Denver, Colorado; Des
Moines, Iowa; Detroit, Michigan; Grand Rapids, Michigan; Houston,
Texas; Indianapolis, Indiana; Milwaukee, Wisconsin; Minneapolis/St.
Paul, Minnesota; Nashville, Tennessee; New Orleans, Louisiana; Phoenix,
Arizona; Salt Lake City, Utah; St. Louis, Missouri and Tampa, Florida,
as well as the regional areas of Central Pennsylvania, Long Island, New
York and New Jersey.
o Leasing and Marketing Strategy. The Company has an operational
management strategy designed to enhance tenant satisfaction and
portfolio performance. The Company pursues an active leasing strategy,
which includes aggressively marketing available space, renewing
existing leases at higher rents per square foot and seeking leases
which provide for the pass-through of property-related expenses to the
tenant. The Company also has local and national marketing programs
which focus on the business and brokerage communities and national
tenants.
o Acquisition Strategy. The Company's acquisition strategy is to acquire
properties in its current markets to capitalize on local market
expertise and maximize operating effectiveness and efficiencies and, as
appropriate opportunities arise, acquire additional properties in other
markets where it can achieve sufficient size and scale, as well as hire
top-quality management.
o Development Strategy. Of the 769 properties in the Company's portfolio
at December 31, 1997, 197 have been developed by its current or former
management. The Company will continue to leverage the development
capabilities of its management, many of whom are leading developers in
their respective markets. In 1996, the Company formed a new subsidiary
("First Industrial Development Services, L.P.") to focus on development
activities.
o Disposition Strategy. The Company continually evaluates local market
conditions and property-related factors and will sell a property when
it believes it is to the Company's advantage to do so.
4
<PAGE> 6
o Financing Strategy. The Company believes that the size of its
portfolio, the diversity of its properties and tenants and the
financial strength of the Company allow it access to the public capital
markets which are not generally available to smaller, less diversified
property owners because of the portfolio size and diversity
requirements.
RECENT DEVELOPMENTS
In 1997, the Company acquired or completed development of 399
properties and two expansions for a total estimated investment of approximately
$912.6 million ($115.2 million of which was issued as partnership Units) to
expand the in-service portfolio by 73 percent. The Company also sold ten
in-service properties, one property under redevelopment and several parcels of
land for approximately $33.7 million of gross proceeds. At December 31, 1997,
the Company owned 769 in-service properties containing approximately 56.6
million square feet.
The Company improved its capital structure through the following
activities:
o The Company legally defeased the $300.0 million mortgage loan (the "1994
Defeased Mortgage Loan") in April 1997 and subsequently paid off and
retired the 1994 Defeased Mortgage Loan on January 2, 1998.
o The Company continued to pay down and retire secured debt and replace it
with senior unsecured debt at lower interest rates.
o The Company issued senior unsecured debt, through the Operating
Partnership, with staggered maturity dates. During 1997, the Company,
through the Operating Partnership, issued $650.0 million of senior
unsecured debt with maturity dates ranging from 2005 to 2027.
o The Company terminated its $200.0 million unsecured revolving credit
facility (the "1996 Unsecured Acquisition Facility") and entered into a
$300.0 million unsecured revolving credit facility (the "1997 Unsecured
Acquisition Facility"). The 1997 Unsecured Acquisition Facility initially
bears interest at the London Interbank Offered Rate ("LIBOR") plus .80%
which is .20% less than the 1996 Unsecured Acquisition Facility for LIBOR
borrowings.
o The Company issued preferred stock. On May 14, 1997, the Company issued
4,000,000 depositary shares, representing 1/100th of a share of the
Company's 8 3/4%, $.01 par value, Series B Cumulative Preferred Stock, at
an initial offering price of $25 per depositary share, which resulted in
gross proceeds of $100.0 million. On June 6, 1997, the Company issued
2,000,000 depositary shares, representing 1/100th of a share of the
Company's 85/8%, $.01 par value, Series C Preferred Stock, at an initial
offering price of $25 per depositary share which resulted in gross proceeds
of $50.0 million.
o The Company issued common stock and the Operating Partnership issued
Units. The Company issued 637,440 shares of $.01 par value common stock on
September 16, 1997, at an initial offering price of $31.375 per share which
resulted in gross proceeds of $20.0 million. On October 15, 1997, the
Company issued 5,400,000 shares of $.01 par value common stock at an
initial offering price of $33.40 per share which resulted in gross proceeds
of $180.4 million. In 1997, the Operating Partnership issued, in the
aggregate, Units valued at approximately $115.2 million.
During the period January 1, 1998 through March 16, 1998, the Company
purchased 56 properties containing an aggregate of 2.9 million square feet of
GLA for approximately $103.4 million, or $36.20 per square foot. The purchase
price consisted of approximately $101.5 million cash and Units valued at
approximately $1.9 million.
On January 27, 1998, the Company registered approximately $789.2
million of common stock, preferred stock and depositary shares and $400.0
million of debt securities.
On February 4, 1998, the Company issued 5,000,000 Depositary shares,
each representing 1/100th of a share of the Company's 7.95%, $.01 par value,
Series D Cumulative Preferred Stock at an initial offering price of $25 per
Depositary Share, which resulted in gross proceeds of $125.0 million.
On March 18, 1998, the Company issued 3,000,000 Depositary shares, each
representing 1/100th of a share of the Company's 7.90%, $.01 par value, Series E
Cumulative Preferred Stock at an initial offering price of $25 per Depositary
Share, which resulted in gross proceeds of $75.0 million.
5
<PAGE> 7
FUTURE ACQUISITIONS AND DEVELOPMENT
The Company has an active acquisition and development program through
which it is continually engaged in identifying, negotiating and consummating
portfolio and individual industrial property acquisitions and developments. As a
result, the Company is currently engaged in negotiations relating to the
possible acquisitions and developments of a number of properties located in the
Company's current markets and other markets into which the Company may expand.
When evaluating potential acquisitions and development, the Company
will consider such factors as: (i) the geographic area and type of property;
(ii) the location, construction quality, condition and design of the property;
(iii) the potential for capital appreciation of the property; (iv) the ability
of the Company to improve the property's performance through renovation; (v) the
terms of tenant leases, including the potential for rent increases; (vi) the
potential for economic growth and the tax and regulatory environment of the area
in which the property is located; (vii) the potential for expansion of the
physical layout of the property and/or the number of sites; (viii) the occupancy
and demand by tenants for properties of a similar type in the vicinity; and (ix)
competition from existing properties and the potential for the construction of
new properties in the area.
INDUSTRY
Industrial properties are typically used for the design, assembly,
packaging, storage and distribution of goods and/or the provision of services.
As a result, the demand for industrial space in the United States is related to
the level of economic output. Historically, occupancy rates for industrial
property in the United States have been higher than those for other types of
commercial property. The Company believes that the higher occupancy rate in the
industrial property sector is a result of the construction-on-demand nature of,
and the comparatively short development time required for, industrial property.
The following table summarizes the occupancy rates by region for industrial
properties for the past five years:
INDUSTRIAL SPACE OCCUPANCY RATES BY REGION
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------------------------
REGION 1993 1994 1995 1996 1997
- ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Midwest ................. 92.8% 93.9% 95.1% 94.3% 93.3%
East .................... 91.6 91.7 92.1 91.6 90.4
South ................... 91.4 91.7 90.9 90.5 90.4
West .................... 91.0 92.5 93.0 93.3 91.7
United States ........... 91.7 92.6 93.1 92.7 91.6
</TABLE>
- -----------
Source: CB Commercial Real Estate Group, Inc.
6
<PAGE> 8
ITEM 2. THE PROPERTIES
GENERAL
At December 31, 1997, First Industrial owned 769 in-service properties
containing approximately 56.6 million square feet of GLA in 22 states, with a
diverse base of more than 2,500 tenants engaged in a wide variety of businesses,
including manufacturing, retailing, wholesale trade, distribution and
professional services. The properties are generally located in business parks
which have convenient access to interstate highways and rail and air
transportation. The median age of the properties as of December 31, 1997 was
approximately 13 years.
The Company classifies its properties into two industrial categories:
bulk warehouse and light industrial. The Company's bulk warehouse properties are
generally used for bulk storage of materials and manufactured goods and its
light industrial properties are generally used for the design, assembly,
packaging and distribution of goods and, in some cases, the provision of
services. Each of the properties is wholly owned by the Company. The following
table summarizes certain information as of December 31, 1997 with respect to the
Company's properties. Information in the table excludes properties under
development at December 31, 1997.
PROPERTY SUMMARY
<TABLE>
<CAPTION>
BULK WAREHOUSE LIGHT INDUSTRIAL TOTAL
----------------------------- --------------------------- ----------------------------
METROPOLITAN/ NUMBER OF NUMBER OF NUMBER OF
REGIONAL AREA GLA PROPERTIES GLA PROPERTIES GLA PROPERTIES
- ------------------ ----------- ---------- ----------- ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C>
Atlanta 3,446,535 18 575,256 11 4,021,791 29
Central Pennsylvania 3,397,351 18 844,207 15 4,241,558 33
Chicago 3,969,361 25 1,647,151 21 5,616,512 46
Cincinnati 951,080 3 681,375 6 1,632,455 9
Cleveland -- -- 355,141 8 355,141 8
Columbus 1,608,804 4 56,849 1 1,665,653 5
Dallas 1,088,017 10 482,313 10 1,570,330 20
Dayton -- -- 322,746 6 322,746 6
Denver -- -- 3,651,688 95 3,651,688 95
Des Moines 879,043 5 54,000 1 933,043 6
Detroit 2,852,057 59 2,450,870 59 5,302,927 118
Grand Rapids 2,786,591 22 40,400 3 2,826,991 25
Houston 1,959,956 17 514,064 7 2,474,020 24
Indianapolis 2,249,853 8 1,588,319 29 3,838,172 37
Long Island 924,385 8 2,507,387 42 3,431,772 50
Milwaukee -- -- 464,292 10 464,292 10
Minneapolis/St Paul 1,864,987 16 3,241,993 45 5,106,980 61
Nashville 1,299,040 7 480,118 8 1,779,158 15
New Jersey 344,176 3 1,567,596 47 1,911,772 50
New Orleans -- -- 557,453 15 557,453 15
Phoenix -- -- 535,394 5 535,394 5
Salt Lake City -- -- 498,233 36 498,233 36
St. Louis 978,321 14 420,827 4 1,399,148 18
Tampa 153,377 2 919,841 28 1,073,218 30
Other (a) 837,055 8 520,204 10 1,357,259 18
---------- ---------- ---------- ---------- ---------- -----
Total 31,589,989 247 24,977,717 522 56,567,706 769
========== ========== ========== ========== ========== =====
<CAPTION>
TOTAL
-------------------------------
GLA AS A %
OCCUPANCY OF TOTAL
AT 12/31/97 PORTFOLIO
------------- -------------
<S> <C> <C>
Atlanta 91% 7%
Central Pennsylvania 100% 7%
Chicago 94% 10%
Cincinnati 90% 3%
Cleveland 67% 1%
Columbus 99% 3%
Dallas 99% 3%
Dayton 98% 1%
Denver 94% 7%
Des Moines 100% 2%
Detroit 97% 9%
Grand Rapids 96% 5%
Houston 99% 4%
Indianapolis 97% 7%
Long Island 94% 6%
Milwaukee 98% 1%
Minneapolis/St Paul 96% 9%
Nashville 99% 3%
New Jersey 95% 3%
New Orleans 89% 1%
Phoenix 100% 1%
Salt Lake City 88% 1%
St. Louis 94% 2%
Tampa 93% 2%
Other (a) 99% 2%
----------
Total 96% 100%
==========
</TABLE>
(a) Properties are located in Denton and Abilene, Texas; Wichita, Kansas;
West Lebanon, New Hampshire; Green Bay, Wisconsin; Shreveport and Baton
Rouge, Louisiana and Clarion, Iowa
7
<PAGE> 9
PROPERTY ACQUISITION ACTIVITY
During 1997, the Company completed 56 separate property acquisition
transactions totaling approximately 22 9 million square feet of GLA at a total
purchase price of approximately $862 4 million, or $37 68 per square foot The
389 properties acquired have the following characteristics:
<TABLE>
<CAPTION>
OCCUPANCY
METROPOLITAN AREA GLA PROPERTY TYPE AT 12/31/97 ACQUISITION DATE
- ------------------ ------------ ------------------------------------ ----------- ------------------
<S> <C> <C> <C> <C>
Indianapolis, IN 482,400 Bulk Warehouse 100% January 9, 1997
Long Island, NY 2,733,751 Bulk Warehouse/Light Industrial 94% January 31, 1997
Dayton, OH 58,746 Light Industrial 100% February 20, 1997
York, PA 312,500 Bulk Warehouse 100% March 17, 1997
Detroit, MI 179,400 Bulk Warehouse 99% March 21, 1997
Mechanicsburg, PA 162,500 Light Industrial 100% March 24, 1997
Buffalo Grove, IL 84,956 Light Industrial 100% March 28, 1997
New Brighton, MN 112,082 Light Industrial 100% March 31, 1997
Brooklyn Park, MN 79,675 Light Industrial 82% March 31, 1997
Minneapolis, MN 49,190 Light Industrial 100% April 3, 1997
Columbus, OH 243,000 Bulk Warehouse 93% April 4, 1997
Alsip, IL 320,171 Bulk Warehouse 97% May 29, 1997
West Allis, WI 92,815 Light Industrial 100% June 2, 1997
Mechanicsburg, PA 178,600 Bulk Warehouse 100% June 2, 1997
Wauwatosa, WI 25,150 Light Industrial 100% June 5, 1997
Green Bay, WI 25,254 Light Industrial 100% June 13, 1997
LaGrange, IL 59,075 Light Industrial 100% June 20, 1997
Wauwatosa, WI 39,800 Light Industrial 100% June 26, 1997
Elk Grove, IL 212,040 Light Industrial 100% June 30, 1997
New Jersey 697,778 Bulk Warehouse/Light Industrial 96% June 30, 1997
Oakland, NJ 52,402 Light Industrial 100% July 11, 1997
New Jersey 75,000 Light Industrial 93% July 18, 1997
Indianapolis, IN 161,539 Light Industrial 100% July 30, 1997
New Jersey 458,666 Light Industrial 98% July 31, 1997
New Jersey 110,000 Light Industrial 100% August 1, 1997
Polk, IA 54,000 Light Industrial 100% August 29, 1997
New Jersey 118,750 Light Industrial 96% August 29, 1997
New Jersey 117,108 Light Industrial 100% August 29, 1997
Independence, OH 169,116 Light Industrial 92% September 19, 1997
Taylor, MI 102,400 Bulk Warehouse 100% September 23, 1997
Indianapolis, IN 353,000 Light Industrial 100% September 23, 1997
Atlanta, GA 97,518 Bulk Warehouse 100% September 26, 1997
Hazelwood, MO 35,114 Light Industrial 100% September 30, 1997
Florence, KY 570,000 Light Industrial 100% September 30, 1997
Cleveland, OH 51,525 Light Industrial 100% October 1, 1997
Ford City, IL 563,458 Bulk Warehouse/Light Industrial 68% October 11, 1997
Nashville, TN 480,118 Light Industrial 96% October 17, 1997
Hicksville, NY 68,635 Light Industrial 89% October 23, 1997
Ford City, IL 391,470 Bulk Warehouse/Light Industrial 93% October 23, 1997
Cleveland, OH 32,000 Light Industrial 100% October 28, 1997
Denver, CO 3,573,495 Light Industrial 94% October 30, 1997
Eden Prairie, MN 89,456 Light Industrial 100% October 31, 1997
Indianapolis, IN 100,000 Bulk Warehouse 92% November 19, 1997
Denver, CO 71,344 Light Industrial 100% December 4, 1997
New Jersey 175,820 Bulk Warehouse/Light Industrial 79% December 5, 1997
Phoenix, AZ 437,342 Light Industrial 100% December 5, 1997
Hicksville, NY 100,000 Light Industrial 100% December 9, 1997
Multiple Markets(a) 4,751,077 Bulk Warehouse/Light Industrial 98% December 9, 1997
Tampa, FL 919,841 Bulk Warehouse/Light Industrial 92% December 11, 1997
Phoenix, AZ 98,052 Light Industrial 100% December 19, 1997
Salt Lake City, UT 498,233 Light Industrial 88% December 23, 1997
Denver, PA 623,832 Bulk Warehouse 100% December 23, 1997
Houston, TX 346,819 Light Industrial 95% December 23, 1997
Hilliard, OH 255,470 Bulk Warehouse 100% December 29, 1997
Hauppauge, NY 21,900 Light Industrial 0% December 29, 1997
Ronkonkoma, NY 613,040 Light Industrial 94% December 29, 1997
------------
Total 22,886,423
============
</TABLE>
(a) Markets include Dallas and Houston, Texas; New Orleans, Louisiana; Tampa,
Florida and Atlanta, Georgia
8
<PAGE> 10
PROPERTY DEVELOPMENT ACTIVITY
During 1997, the Company completed ten developments and two expansions
totaling approximately 1.7 million square feet of GLA at a total cost of
approximately $50.2 million, or $28.88 per square foot The developed properties
have the following characteristics:
<TABLE>
<CAPTION>
OCCUPANCY
METROPOLITAN AREA GLA PROPERTY TYPE AT 12/31/97 COMPLETION DATE
- ----------------------------- --------------- -------------- ----------- ------------------
<S> <C> <C> <C> <C>
Middleton, PA 216,387 Bulk Warehouse 100% March 1, 1997
Livonia, MI 140,365 Bulk Warehouse 100% March 1, 1997
Atlanta, GA 181,200 Bulk Warehouse (a) March 10, 1997
Grand Rapids, MI 17,000(b) Bulk Warehouse 100% April 1, 1997
Indianapolis, IN 10,000 Bulk Warehouse 100% April 1, 1997
Middleton, PA 321,333 Bulk Warehouse 100% June 1, 1997
Livonia, MI 127,800 Bulk Warehouse 100% November 21, 1997
Shreveport, LA 250,000 Bulk Warehouse 100% December 1, 1997
Atlanta, GA 24,660(b) Light Industrial 100% December 8, 1997
St Louis, MO 178,800 Bulk Warehouse 100% December 12, 1997
Clarion, IA 126,900 Bulk Warehouse 100% December 16, 1997
Livonia, MI 145,232 Bulk Warehouse 100% December 31, 1997
-----------
Total 1,739,677
===========
</TABLE>
(a) Property was sold on June 30, 1997
(b) Expansion
At December 31, 1997, the Company had 12 projects under development,
with an estimated completion GLA of 2.5 million square feet and an estimated
completion cost of approximately $90.4 million
PROPERTY SALES
During 1997, the Company sold ten in-service properties totaling
approximately .8 million square feet of GLA, one property held for redevelopment
and several land parcels Total gross sales proceeds approximated $33.7 million
The in-service properties sold have the following characteristics:
<TABLE>
<CAPTION>
METROPOLITAN AREA GLA PROPERTY TYPE SALE DATE
- -------------------- --------- ---------------- -------------------
<S> <C> <C> <C>
Atlanta, GA 202,880 Bulk Warehouse June 30, 1997
Atlanta, GA 181,200 Bulk Warehouse June 30, 1997
Nashville, TN(a) 227,267 Light Industrial June 30, 1997
Maryland Heights, MO 42,090 Light Industrial September 16, 1997
Farmington Hills, MI 17,564 Bulk Warehouse October 29, 1997
Troy, MI 54,675 Light Industrial December 15, 1997
Plymouth, MI 27,990 Light Industrial December 18, 1997
Maryland Heights, MO 31,484 Bulk Warehouse December 22, 1997
----------
Total 785,150
==========
</TABLE>
(a) Comprised of three properties
PROPERTY ACQUISITIONS SUBSEQUENT TO YEAR END
During the period January 1, 1998 through March 16, 1998, the Company
completed 12 separate property transactions totaling approximately 2.9 million
square feet of GLA for approximately $103.4 million, or $36.20 per square foot,
with the following characteristics:
<TABLE>
<CAPTION>
METROPOLITAN AREA GLA PROPERTY TYPE ACQUISITION DATE
- ------------------ ---------- ------------------------------- -------------------
<S> <C> <C> <C>
Chicago, IL 53,500 Light Industrial January 9, 1998
Chicago, IL 149,500 Light Industrial January 12, 1998
Chicago, IL 203,548 Bulk Warehouse/Light Industrial January 12, 1998
Minneapolis, MN 318,013 Light Industrial January 15, 1998
Chicago, IL 288,000 Bulk Warehouse January 16, 1998
West Valley, UT 183,772 Light Industrial January 28, 1998
Chicago, IL 309,386 Bulk Warehouse/Light Industrial January 30, 1998
Denver, CO 448,186 Light Industrial January 30, 1998
Springboro, OH 69,220 Light Industrial February 11, 1998
Garden City, NY 42,700 Light Industrial March 3, 1998
Detroit, MI 75,200 Light Industrial March, 12, 1998
Indianapolis, IN 181,950 Light Industrial March 4, 1998
Exton, PA 534,360 Light Industrial March 12, 1998
----------
2,857,335
==========
</TABLE>
9
<PAGE> 11
DETAIL PROPERTY LISTING
The following table lists all of the Company's properties as of
December 31, 1997, by geographic market area
<TABLE>
<CAPTION>
PROPERTY LISTING
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- ---------- ------------ ---------
<S> <C> <C> <C>
ATLANTA
4250 River Green Parkway Duluth, GA (c) 1988
3400 Corporate Parkway Duluth, GA (c) 1987
3450 Corporate Parkway Duluth, GA (c) 1988
3500 Corporate Parkway Duluth, GA (c) 1991
3425 Corporate Parkway Duluth, GA (c) 1990
1650 GA Highway 155 McDonough, GA 1991
415 Industrial Park Road Cartersville, GA 1986
434 Industrial Park Road Cartersville, GA 1988
435 Industrial Park Road Cartersville, GA 1986
14101 Industrial Park Blvd Covington, GA 1984
801-804 Blacklawn Road Conyers, GA 1982
1665 Dogwood Drive Conyers, GA 1973
1715 Dogwood Drive Conyers, GA 1973
11235 Harland Drive Covington, GA 1988
700 Westlake Parkway Atlanta, GA 1990
800 Westlake Parkway Atlanta, GA 1991
4050 Southmeadow Parkway Atlanta, GA 1991
4051 Southmeadow Parkway Atlanta, GA 1989
4071 Southmeadow Parkway Atlanta, GA 1991
4081 Southmeadow Parkway Atlanta, GA 1989
1875 Rockdale Industrial Blvd Conyers, GA 1966
370 Great Southwest Parkway (j) Atlanta, GA 1986
955 Cobb Place Kennesaw, GA 1991
6105 Boatrock Boulevard Atlanta, GA 1972
1640 Sands Place Marietta, GA 1977
3312 N Berkeley Lake Road Duluth, GA 1969
3495 Bankhead Highway (j) Atlanta, GA 1986
CENTRAL PENNSYLVANIA
1214-B Freedom Road Cranberry, PA 1982
401 Russell Drive Middletown, PA 1990
2700 Commerce Drive Middletown, PA 1990
2701 Commerce Drive Middletown, PA 1989
2780 Commerce Drive Middletown, PA 1989
5035 Ritter Road Mechanicsburg, PA 1988
5070-B Ritter Road(j) Mechanicsburg, PA 1989
6340 Flank Drive Harrisburg, PA 1988
6345 Flank Drive Harrisburg, PA 1989
6360 Flank Drive Harrisburg, PA 1988
6380 Flank Drive Harrisburg, PA 1991
6400 Flank Drive Harrisburg, PA 1992
6405 Flank Drive Harrisburg, PA 1991
100 Schantz Road Allentown, PA 1993
794 Roble Road Allentown, PA 1984
7355 Williams Avenue Allentown, PA 1989
2600 Beltline Avenue Reading, PA 1985
7125 Grayson Road Harrisburg, PA 1991
7253 Grayson Road Harrisburg, PA 1990
5 Keystone Drive Lebanon, PA 1995
5020 Louise Drive Mechanicsburg, PA (b) 1995
7195 Grayson Road Harrisburg, PA (b) 1994
400 First Street Middletown, PA 1963/96
401 First Street Middletown, PA 1963/96
600 Hunter Lane Middletown, PA 1997
300 Hunter Lane Middletown, PA 1996
3380 Susquehanna Trail North York, PA 1990
495 East Locust Lane York, PA 1993
350 Old Silver Spring Road Mechanicsburg, PA 1968
4500 Westport Drive Mechanicsburg, PA 1996
500 Industrial Lane Middletown, PA 1970/96
41 Weaver Road Denver, PA 1974
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- --------------- --------- --- --------
<S> <C> <C> <C> <C>
ATLANTA
4250 River Green Parkway Light Industrial 2.14 28,942 100%
3400 Corporate Parkway Light Industrial 3.73 59,959 86%
3450 Corporate Parkway Light Industrial 2.38 37,346 67%
3500 Corporate Parkway Light Industrial 2.80 44,242 100%
3425 Corporate Parkway Light Industrial 3.49 42,978 77%
1650 GA Highway 155 Bulk Warehouse 12.80 228,400 100%
415 Industrial Park Road Bulk Warehouse 9.27 119,657 100%
434 Industrial Park Road Bulk Warehouse 8.07 57,493 100%
435 Industrial Park Road Bulk Warehouse 8.03 71,000 0%
14101 Industrial Park Blvd Bulk Warehouse 9.25 92,160 100%
801-804 Blacklawn Road Bulk Warehouse 6.67 111,090 91%
1665 Dogwood Drive Bulk Warehouse 9.46 198,000 100%
1715 Dogwood Drive Bulk Warehouse 4.61 100,000 100%
11235 Harland Drive Bulk Warehouse 5.39 32,361 100%
700 Westlake Parkway Light Industrial 3.50 56,400 82%
800 Westlake Parkway Bulk Warehouse 7.40 132,400 80%
4050 Southmeadow Parkway Light Industrial 6.60 87,328 100%
4051 Southmeadow Parkway Bulk Warehouse 11.20 171,671 0%
4071 Southmeadow Parkway Bulk Warehouse 17.80 209,918 100%
4081 Southmeadow Parkway Bulk Warehouse 12.83 254,172 100%
1875 Rockdale Industrial Blvd Bulk Warehouse 5.70 121,600 100%
370 Great Southwest Parkway (j) Light Industrial 8.06 150,536 81%
955 Cobb Place Bulk Warehouse 8.73 97,518 100%
6105 Boatrock Boulevard Light Industrial 1.79 32,000 100%
1640 Sands Place Light Industrial 1.97 35,525 100%
3312 N. Berkeley Lake Road Bulk Warehouse 52.11 1,040,276 100%
3495 Bankhead Highway (j) Bulk Warehouse 20.50 408,819 100%
--------- ------
SUBTOTAL OR AVERAGE 4,021,791 91%
--------- ------
CENTRAL PENNSYLVANIA
1214-B Freedom Road Bulk Warehouse 5.99 32,779 100%
401 Russell Drive Bulk Warehouse 5.20 52,800 100%
2700 Commerce Drive Bulk Warehouse 3.60 32,000 100%
2701 Commerce Drive Light Industrial 6.40 48,000 100%
2780 Commerce Drive Light Industrial 2.00 21,600 100%
5035 Ritter Road Light Industrial 5.50 56,000 96%
5070-B Ritter Road(j) Light Industrial 5.20 60,000 100%
6340 Flank Drive Light Industrial 6.70 68,200 100%
6345 Flank Drive Light Industrial 7.00 69,443 100%
6360 Flank Drive Light Industrial 5.30 46,500 98%
6380 Flank Drive Light Industrial 3.70 32,000 88%
6400 Flank Drive Light Industrial 5.30 53,439 100%
6405 Flank Drive Light Industrial 5.96 32,000 100%
100 Schantz Road Bulk Warehouse 12.37 100,000 100%
794 Roble Road Light Industrial 16.68 101,750 100%
7355 Williams Avenue Light Industrial 3.94 43,425 100%
2600 Beltline Avenue Bulk Warehouse 5.89 69,190 100%
7125 Grayson Road Bulk Warehouse 17.17 300,000 100%
7253 Grayson Road Bulk Warehouse 12.42 196,000 100%
5 Keystone Drive Bulk Warehouse 14.00 88,400 100%
5020 Louise Drive Light Industrial 5.06 49,350 100%
7195 Grayson Road Bulk Warehouse 6.02 100,000 100%
400 First Street Bulk Warehouse 14.88 167,500 100%
401 First Street Bulk Warehouse 43.55 490,140 100%
600 Hunter Lane Bulk Warehouse 14.77 216,387 100%
300 Hunter Lane Bulk Warehouse 16.71 321,333 100%
3380 Susquehanna Trail North Bulk Warehouse 10.00 112,500 100%
495 East Locust Lane Bulk Warehouse 15.00 200,000 100%
350 Old Silver Spring Road Light Industrial 20.00 162,500 100%
4500 Westport Drive Bulk Warehouse 11.20 178,600 100%
500 Industrial Lane Bulk Warehouse 10.29 115,890 100%
41 Weaver Road Bulk Warehouse 85.00 623,832 100%
--------- ------
Subtotal or Average 4,241,558 100%
--------- ------
</TABLE>
10
<PAGE> 12
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- ---------- ------------ ---------
<S> <C> <C> <C>
CHICAGO
1330 West 43rd Street Chicago, IL 1977
2300 Hammond Drive Schaumburg, IL 1970
6500 North Lincoln Avenue Lincolnwood, IL 1965/88
3600 West Pratt Avenue Lincolnwood, IL 1953/88
917 North Shore Drive Lake Bluff, IL 1974
6750 South Sayre Avenue Bedford Park, IL 1975
7200 S. Leamington Bedford Park, IL 1950
585 Slawin Court Mount Prospect, IL 1992
2300 Windsor Court Addison, IL 1986
3505 Thayer Court Aurora, IL 1989
3600 Thayer Court Aurora, IL 1989
736-776 Industrial Drive Elmhurst, IL 1975
5310-5352 East Avenue Countryside, IL 1975
12330-12358 South LaTrobe Alsip, IL 1975
305-311 Era Drive Northbrook, IL 1978
700-714 Landwehr Road Northbrook, IL 1978
720-730 Landwehr Road Northbrook, IL (c) 1978
3170-3190 MacArthur Boulevard Northbrook, IL (c) 1978
4330 South Racine Avenue Chicago, IL 1978
13040 S. Crawford Avenue Alsip, IL 1976
20W201 101st Street Lemont, IL (c) 1988
11241 Melrose Street Franklin Park, IL 1969
280-296 Palatine Road Wheeling, IL (c) 1978
3150-3160 MacArthur Boulevard Northbrook, IL (b) 1978
2101-2125 Gardner Road Broadview, IL (b) 1950/69
365 North Avenue Carol Stream, IL (b) 1969
2942 MacArthur Boulevard Northbrook, IL (b) 1979
12301-12325 S. Laramie Avenue Alsip, IL 1975
6300 West Howard Street Niles, IL 1956/64
301 Hintz Wheeling, IL 1960
301 Alice Wheeling, IL 1965
1001 Commerce Court Buffalo Grove, IL 1989
11939 South Central Avenue Alsip, IL 1972
405 East Shawmut La Grange, IL 1965
2201 Lunt Elk Grove Village, IL 1963
1010-50 Sesame Street Bensenville, IL (g) 1976
5555 West 70th Place Bedford Park, IL 1973
3200-3250 South St. Louis (j) Chicago, IL 1968
3110-3130 South St. Louis Chicago, IL 1968
7301 South Hamlin Chicago, IL 1975/86
3740 West 74th Street Chicago, IL 1975/86
7401 South Pulaski Chicago, IL 1975/86
3900 West 74th Street Chicago, IL 1975/86
7501 South Pulaski Chicago, IL 1975/86
410 West 169th Street South Holland, IL 1974
CINCINNATI
9900-9970 Princeton-Glendale Cincinnati, OH (d) 1970
2940 Highland Avenue Cincinnati, OH (d) 1969/74
4700-4750 Creek Road Blue Ash, OH (d) 1960
4860 Duff Drive Cincinnati, OH 1979
4866 Duff Drive Cincinnati, OH 1979
4884 Duff Drive Cincinnati, OH 1979
4890 Duff Drive Cincinnati, OH 1979
9636-9643 Interocean Drive Cincinnati, OH 1983
7600 Empire Drive Florence, KY 1964
CLEVELAND
21510-21600 Alexander Rd (k) Oakwood, OH 1985
5405 & 5505 Valley Belt Rd (j) Independence, OH 1983
10145 Philipp Parkway Streetsboro, OH 1994
4410 Hamann Willoughby, OH 1975
6675 Parkland Boulevard Solon, OH 1991
COLUMBUS
6911 Americana Parkway Columbus, OH 1980
3800 Lockbourne Industrial Pky Columbus, OH 1986
1819 North Walcutt Road Columbus, OH 1973
3880 Groveport Road Obetz, OH 1986
4300 Cemetery Road Hilliard, OH 1968
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- ------- --- --------
<S> <C> <C> <C> <C>
CHICAGO
1330 West 43rd Street Bulk Warehouse 4.25 109,728 100%
2300 Hammond Drive Bulk Warehouse 4.13 77,000 100%
6500 North Lincoln Avenue Light Industrial 2.52 63,050 10%
3600 West Pratt Avenue Bulk Warehouse 6.35 205,481 82%
917 North Shore Drive Bulk Warehouse 4.27 84,575 100%
6750 South Sayre Avenue Bulk Warehouse 2.51 63,383 100%
7200 S. Leamington Bulk Warehouse 12.24 310,752 100%
585 Slawin Court Light Industrial 3.71 38,150 100%
2300 Windsor Court Bulk Warehouse 6.80 105,100 100%
3505 Thayer Court Bulk Warehouse 4.60 64,220 100%
3600 Thayer Court Light Industrial 6.80 67,058 100%
736-776 Industrial Drive Bulk Warehouse 3.79 80,520 100%
5310-5352 East Avenue Bulk Warehouse 4.77 88,042 100%
12330-12358 South LaTrobe Bulk Warehouse 3.71 85,390 88%
305-311 Era Drive Light Industrial 1.82 27,549 100%
700-714 Landwehr Road Light Industrial 1.99 41,835 100%
720-730 Landwehr Road Light Industrial 4.29 66,912 100%
3170-3190 MacArthur Boulevard Light Industrial 2.14 41,820 58%
4330 South Racine Avenue Bulk Warehouse 5.57 168,000 100%
13040 S. Crawford Avenue Bulk Warehouse 15.12 400,076 100%
20W201 101st Street Light Industrial 8.72 160,200 100%
11241 Melrose Street Bulk Warehouse 2.47 77,031 100%
280-296 Palatine Road Bulk Warehouse 4.67 90,387 100%
3150-3160 MacArthur Boulevard Light Industrial 2.14 41,820 100%
2101-2125 Gardner Road Bulk Warehouse 9.98 323,425 100%
365 North Avenue Bulk Warehouse 28.65 225,000 100%
2942 MacArthur Boulevard Light Industrial 3.12 49,730 100%
12301-12325 S. Laramie Avenue Bulk Warehouse 8.83 204,586 100%
6300 West Howard Street Light Industrial 19.50 364,000 100%
301 Hintz Light Industrial 2.51 43,636 100%
301 Alice Light Industrial 2.88 65,450 100%
1001 Commerce Court Light Industrial 5.37 84,956 100%
11939 South Central Avenue Bulk Warehouse 12.60 320,171 97%
405 East Shawmut Light Industrial 3.39 59,075 100%
2201 Lunt Light Industrial 7.98 212,040 100%
1010-50 Sesame Street Bulk Warehouse 8.00 252,000 100%
5555 West 70th Place Light Industrial 2.50 41,531 100%
3200-3250 South St. Louis (j) Light Industrial 8.66 74,685 64%
3110-3130 South St. Louis Light Industrial 4.00 23,254 100%
7301 South Hamlin Bulk Warehouse 1.49 56,017 43%
3740 West 74th Street Light Industrial 2.14 80,400 100%
7401 South Pulaski Bulk Warehouse 5.36 201,420 97%
3900 West 74th Street Bulk Warehouse 2.13 79,907 100%
7501 South Pulaski Bulk Warehouse 3.88 145,714 0%
410 West 169th Street Bulk Warehouse 6.40 151,436 100%
---------- -----
SUBTOTAL OR AVERAGE 5,616,512 94%
---------- -----
CINCINNATI
9900-9970 Princeton-Glendale Bulk Warehouse 10.64 185,580 97%
2940 Highland Avenue Bulk Warehouse 17.08 500,500 75%
4700-4750 Creek Road Bulk Warehouse 15.32 265,000 96%
4860 Duff Drive Light Industrial 1.02 15,986 100%
4866 Duff Drive Light Industrial 1.02 16,000 100%
4884 Duff Drive Light Industrial 1.59 25,000 60%
4890 Duff Drive Light Industrial 1.59 25,018 100%
9636-9643 Interocean Drive Light Industrial 4.13 29,371 86%
7600 Empire Drive Light Industrial 38.73 570,000 100%
---------- -----
SUBTOTAL OR AVERAGE 1,632,455 90%
---------- -----
CLEVELAND
21510-21600 Alexander Rd (k) Light Industrial 5.70 106,721 98%
5405 & 5505 Valley Belt Rd (j) Light Industrial 6.23 62,395 83%
10145 Philipp Parkway Light Industrial 4.00 51,525 100%
4410 Hamann Light Industrial 1.40 32,000 100%
6675 Parkland Boulevard Light Industrial 10.41 102,500 0%
---------- -----
SUBTOTAL OR AVERAGE 355,141 67%
---------- -----
COLUMBUS
6911 Americana Parkway Light Industrial 4.05 56,849 89%
3800 Lockbourne Industrial Pky Bulk Warehouse 43.60 404,734 100%
1819 North Walcutt Road Bulk Warehouse 11.33 243,000 93%
3880 Groveport Road Bulk Warehouse 22.13 705,600 100%
4300 Cemetery Road Bulk Warehouse 62.71 255,470 100%
---------- -----
SUBTOTAL OR AVERAGE 1,665,653 99%
---------- -----
</TABLE>
11
<PAGE> 13
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- ---------- ------------ ---------
<S> <C> <C> <C>
DALLAS
1275-1281 Roundtable Drive Dallas, TX 1966
2406-2416 Walnut Ridge Dallas, TX 1978
12750 Perimeter Drive Dallas, TX 1979
1324-1343 Roundtable Drive Dallas, TX 1972
1405-1409 Avenue II East Grand Prairie, TX 1969
2651-2677 Manana Dallas, TX 1966
2401-2419 Walnut Ridge Dallas, TX 1978
4248-4252 Simonton Farmers Ranch, TX 1973
900-906 Great Southwest Pkwy Arlington, TX 1972
2179 Shiloh Road Garland, TX 1982
2159 Shiloh Road Garland, TX 1982
2701 Shiloh Road Garland, TX 1981
12784 Perimeter Drive (k) Dallas, TX 1981
3000 West Commerce Dallas, TX 1980
3030 Hansboro Dallas, TX 1971
5222 Cockrell Hill Dallas, TX 1973
405-407 113th Arlington, TX 1969
816 111th Street Arlington, TX 1972
DAYTON
6094-6104 Executive Boulevard Huber Heights, OH 1975
6202-6220 Executive Boulevard Huber Heights, OH 1996
6268-6294 Executive Boulevard Huber Heights, OH 1989
5749-5753 Executive Boulevard Huber Heights, OH 1975
2200-2224 Sandridge Road Moriane, OH 1983
6230-6266 Executive Boulevard Huber Heights, OH 1979
DENVER
7100 North Broadway - Bldg 1 Denver, CO 1978
7100 North Broadway - Bldg 2 Denver, CO 1978
7100 North Broadway - Bldg 3 Denver, CO 1978
7100 North Broadway - Bldg 5 Denver, CO 1978
7100 North Broadway - Bldg 6 Denver, CO 1978
10691 East Bethany Drive Aurora, CO 1979
20100 East 32nd Avenue Parkway Aurora, CO 1997
15700 - 15820 West 6th Avenue Golden, CO 1978
12850-15884 West 6th Avenue Golden, CO 1978
5454 Washington Denver, CO 1985
5801 West 6th Avenue Lakewood, CO 1980
5805 West 6th Avenue Lakewood, CO 1980
5815 West 6th Avenue Lakewood, CO 1980
5825 West 6th Avenue Lakewood, CO 1980
5835 West 6th Avenue Lakewood, CO 1980
525 East 70th Street Denver, CO 1985
565 East 70th Street Denver, CO 1985
605 East 70th Street Denver, CO 1985
625 East 70th Street Denver, CO 1985
665 East 70th Street Denver, CO 1985
700 West 48th Street Denver, CO 1984
702 West 48th Street Denver, CO 1984
3370 North Peoria Street Aurora, CO 1978
3390 North Peoria Street Aurora, CO 1978
3508-3538 North Peoria Street Aurora, CO 1978
3568 North Peoria Street Aurora, CO 1978
3350 North Peoria Street Aurora, CO 1978
4785 Elati Denver, CO 1972
4770 Fox Street Denver, CO 1972
1550 West Evans Denver, CO 1975
12401-41 East 37th Avenue Denver, CO 1980
3751 - 71 Revere Street Denver, CO 1980
3871 Revere Street Denver, CO 1980
5454 Havana Street Denver, CO 1980
5500 Havana Street Denver, CO 1980
4570 Ivy Street Denver, CO 1985
5855 Stapleton Drive North Denver, CO 1985
5885 Stapleton Drive North Denver, CO 1985
5200-5280 North Broadway Denver, CO 1977
5977-5995 North Broadway Denver, CO 1978
2952-5978 North Broadway Denver, CO 1978
6400 North Broadway Denver, CO 1982
875 Parfer Street Lakewood, CO 1975
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- ------- --- --------
<S> <C> <C> <C> <C>
DALLAS
1275-1281 Roundtable Drive Light Industrial 1.75 30,642 100%
2406-2416 Walnut Ridge Light Industrial 1.76 44,000 100%
12750 Perimeter Drive Light Industrial 6.72 178,200 100%
1324-1343 Roundtable Drive Light Industrial 2.09 47,000 100%
1405-1409 Avenue II East Light Industrial 1.79 36,000 100%
2651-2677 Manana Bulk Warehouse 2.55 82,229 100%
2401-2419 Walnut Ridge Light Industrial 1.20 30,000 100%
4248-4252 Simonton Bulk Warehouse 8.18 205,693 100%
900-906 Great Southwest Pkwy Bulk Warehouse 3.20 69,761 100%
2179 Shiloh Road Bulk Warehouse 3.63 65,700 100%
2159 Shiloh Road Light Industrial 1.15 20,800 100%
2701 Shiloh Road Bulk Warehouse 8.20 214,650 100%
12784 Perimeter Drive (k) Light Industrial 4.57 95,671 86%
3000 West Commerce Bulk Warehouse 11.23 128,478 100%
3030 Hansboro Bulk Warehouse 3.71 100,000 100%
5222 Cockrell Hill Bulk Warehouse 4.79 96,506 100%
405-407 113th Bulk Warehouse 2.75 60,000 100%
816 111th Street Bulk Warehouse 2.89 65,000 100%
---------- ------
SUBTOTAL OR AVERAGE 1,570,330 99%
---------- ------
DAYTON
6094-6104 Executive Boulevard Light Industrial 3.33 43,200 100%
6202-6220 Executive Boulevard Light Industrial 3.79 64,000 100%
6268-6294 Executive Boulevard Light Industrial 4.03 60,800 100%
5749-5753 Executive Boulevard Light Industrial 1.15 12,000 50%
2200-2224 Sandridge Road Light Industrial 2.96 58,746 100%
6230-6266 Executive Boulevard Light Industrial 5.30 84,000 100%
---------- -----
SUBTOTAL OR AVERAGE 322,746 98%
---------- -----
DENVER
7100 North Broadway - Bldg 1 Light Industrial 16.80 32,269 100%
7100 North Broadway - Bldg 2 Light Industrial 16.90 32,500 98%
7100 North Broadway - Bldg 3 Light Industrial 11.60 22,259 84%
7100 North Broadway - Bldg 5 Light Industrial 15.00 28,789 57%
7100 North Broadway - Bldg 6 Light Industrial 22.50 38,255 91%
10691 East Bethany Drive Light Industrial 1.84 25,026 91%
20100 East 32nd Avenue Parkway Light Industrial 4.10 51,300 90%
15700 - 15820 West 6th Avenue Light Industrial 1.92 52,758 96%
12850-15884 West 6th Avenue Light Industrial 1.92 31,856 100%
5454 Washington Light Industrial 4.00 34,740 88%
5801 West 6th Avenue Light Industrial 1.03 15,500 60%
5805 West 6th Avenue Light Industrial 1.03 20,358 93%
5815 West 6th Avenue Light Industrial 1.03 20,765 100%
5825 West 6th Avenue Light Industrial 1.03 20,748 100%
5835 West 6th Avenue Light Industrial 1.03 20,490 100%
525 East 70th Street Light Industrial 5.18 12,000 100%
565 East 70th Street Light Industrial 5.18 29,990 88%
605 East 70th Street Light Industrial 5.18 34,000 88%
625 East 70th Street Light Industrial 5.18 24,000 100%
665 East 70th Street Light Industrial 5.18 24,000 100%
700 West 48th Street Light Industrial 5.40 53,471 100%
702 West 48th Street Light Industrial 5.40 130,426 22%
3370 North Peoria Street Light Industrial 1.64 26,993 100%
3390 North Peoria Street Light Industrial 1.46 22,699 100%
3508-3538 North Peoria Street Light Industrial 2.61 40,653 100%
3568 North Peoria Street Light Industrial 2.24 34,775 85%
3350 North Peoria Street Light Industrial 2.16 33,573 100%
4785 Elati Light Industrial 3.34 34,777 100%
4770 Fox Street Light Industrial 3.38 26,565 100%
1550 West Evans Light Industrial 3.92 78,788 100%
12401-41 East 37th Avenue Light Industrial 1.19 26,922 77%
3751 - 71 Revere Street Light Industrial 2.41 54,666 100%
3871 Revere Street Light Industrial 3.19 75,625 100%
5454 Havana Street Light Industrial 2.68 42,504 100%
5500 Havana Street Light Industrial 2.19 34,776 100%
4570 Ivy Street Light Industrial 1.77 31,355 100%
5855 Stapleton Drive North Light Industrial 2.33 41,268 100%
5885 Stapleton Drive North Light Industrial 3.05 53,893 100%
5200-5280 North Broadway Light Industrial 1.54 31,780 100%
5977-5995 North Broadway Light Industrial 4.96 50,280 100%
2952-5978 North Broadway Light Industrial 7.91 88,977 100%
6400 North Broadway Light Industrial 4.51 69,430 100%
875 Parfer Street Light Industrial 3.06 49,216 100%
</TABLE>
12
<PAGE> 14
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- --------- ------------ ---------
<S> <C> <C> <C>
DENVER (CON'T )
4721 Ironton Street Denver, CO 1969
833 Parfer Street Lakewood, CO 1974
11005 West 8th Avenue Lakewood, CO 1974
7100 North Broadway - 7 Denver, CO 1985
7100 North Broadway - 8 Denver, CO 1985
6804 East 48th Avenue Denver, CO 1973
15350 East Hinsdale Drive Denver, CO 1987
15353 East Hinsdale Drive Englewood, CO 1987
15373 East Hinsdale Drive Englewood, CO 1987
4611 East 46th Avenue Denver, CO 1974
East 47th Drive -A Denver, CO 1997
East 47th Drive - B Denver, CO 1997
Centennial Airport Business Pk Denver, CO 1997
9500 W. 49th Street - A Wheatridge, CO 1997
9500 W. 49th Street - B Wheatridge, CO 1997
9500 W. 49th Street - C Wheatridge, CO 1997
9500 W. 49th Street - D Wheatridge, CO 1997
8100 South Park Way - A Littleton, CO 1997
8100 South Park Way - B Littleton, CO 1984
8100 South Park Way - C Littleton, CO 1984
451-591 East 124th Avenue Littleton, CO 1979
14100 East Jewell Aurora, CO 1980
14190 East Jewell Aurora, CO 1980
608 Garrison Street Lakewood, CO 1984
610 Garrison Street Lakewood, CO 1984
1111 West Evans (A&C) Denver, CO 1986
1111 West Evans (B) Denver, CO 1986
15000 West 6th Avenue Golden, CO 1985
14998 West 6th Avenue E Golden, CO 1995
14998 West 6th Avenue F Englewood, CO 1995
12503 East Euclid Drive Denver, CO 1986
6547 South Racine Circle Englewood, CO 1996
7800 East Iliff Avenue Denver, CO 1983
2369 South Trenton Way Denver, CO 1983
2370 South Trenton Way Denver, CO 1983
2422 South Trenton Way Denver, CO 1983
2452 South Trenton Way Denver, CO 1983
8122 South Park Lane - A Littleton, CO 1986
8122 South Park Lane - B Littleton, CO 1986
1600 South Abilene Aurora, CO 1986
1620 South Abilene Aurora, CO 1986
1640 South Abilene Aurora, CO 1986
13900 East Florida Avenue Aurora, CO 1986
4301 South Federal Boulevard Englewood, CO 1997
14401-14492 East 33rd Place Aurora, CO 1979
11701 East 53rd Avenue Denver, CO 1985
5401 Oswego Street Denver, CO 1985
2630 West 2nd Avenue Denver, CO 1970
2650 West 2nd Avenue Denver, CO 1970
14818 West 6th Avenue Bldg A Golden, CO 1985
14828 West 6th Avenue Bldg B Golden, CO 1985
2075 South Valentia Denver, CO 1981
DES MOINES
1550 East Washington Avenue Des Moines, IA 1987
1600 East Washington Avenue Des Moines, IA 1987
5701 NE 17th Street Des Moines, IA 1968
4121 McDonald Avenue Des Moines, IA 1977
4141 McDonald Avenue Des Moines, IA 1976
4161 McDonald Avenue Des Moines, IA 1979
DETROIT
2654 Elliott Troy, MI (c) 1986
1731 Thorncroft Troy, MI (c) 1969
1653 E. Maple Troy, MI (c) 1990
47461 Clipper Plymouth, MI (c) 1992
47522 Galleon Plymouth, MI (c) 1990
4150 Varsity Drive Ann Arbor, MI (c) 1986
1330 Crooks Road Clawson, MI (c) 1960
12000 Merriman Road Livonia, MI 1975
238 Executive Drive Troy, MI 1973
256 Executive Drive Troy, MI 1974
301 Executive Drive Troy, MI 1974
449 Executive Drive Troy, MI 1975
501 Executive Drive Troy, MI 1984
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- -------- --- --------
<S> <C> <C> <C> <C>
DENVER (CON'T )
4721 Ironton Street Light Industrial 2.84 50,160 100%
833 Parfer Street Light Industrial 2.57 24,800 100%
11005 West 8th Avenue Light Industrial 2.57 25,672 100%
7100 North Broadway - 7 Light Industrial 2.30 24,822 97%
7100 North Broadway - 8 Light Industrial 2.30 9,107 100%
6804 East 48th Avenue Light Industrial 2.23 46,464 100%
15350 East Hinsdale Drive Light Industrial 3.18 20,800 100%
15353 East Hinsdale Drive Light Industrial 2.28 15,600 100%
15373 East Hinsdale Drive Light Industrial 0.85 6,240 100%
4611 East 46th Avenue Light Industrial 1.20 28,600 100%
East 47th Drive -A Light Industrial 3.00 51,200 100%
East 47th Drive - B Light Industrial 2.50 43,720 100%
Centennial Airport Business Pk Light Industrial 3.20 59,270 100%
9500 W. 49th Street - A Light Industrial 1.74 19,217 100%
9500 W. 49th Street - B Light Industrial 1.74 15,441 100%
9500 W. 49th Street - C Light Industrial 1.74 29,174 100%
9500 W. 49th Street - D Light Industrial 1.74 41,615 100%
8100 South Park Way - A Light Industrial 3.33 52,160 100%
8100 South Park Way - B Light Industrial 0.78 12,259 100%
8100 South Park Way - C Light Industrial 4.28 67,520 100%
451-591 East 124th Avenue Light Industrial 4.96 59,711 100%
14100 East Jewell Light Industrial 3.67 58,553 100%
14190 East Jewell Light Industrial 1.84 29,442 92%
608 Garrison Street Light Industrial 2.17 25,000 86%
610 Garrison Street Light Industrial 2.17 25,000 89%
1111 West Evans (A&C) Light Industrial 2.00 36,894 100%
1111 West Evans (B) Light Industrial 0.50 4,725 100%
15000 West 6th Avenue Light Industrial 5.25 69,583 85%
14998 West 6th Avenue E Light Industrial 2.29 42,832 100%
14998 West 6th Avenue F Light Industrial 2.29 20,424 100%
12503 East Euclid Drive Light Industrial 10.90 97,871 100%
6547 South Racine Circle Light Industrial 3.92 60,112 59%
7800 East Iliff Avenue Light Industrial 3.06 22,296 96%
2369 South Trenton Way Light Industrial 4.80 33,267 100%
2370 South Trenton Way Light Industrial 3.27 22,735 100%
2422 South Trenton Way Light Industrial 3.94 27,413 73%
2452 South Trenton Way Light Industrial 6.78 47,931 100%
8122 South Park Lane - A Light Industrial 5.09 46,182 95%
8122 South Park Lane - B Light Industrial 2.28 20,389 100%
1600 South Abilene Light Industrial 3.53 47,930 100%
1620 South Abilene Light Industrial 2.04 27,666 100%
1640 South Abilene Light Industrial 2.80 37,948 100%
13900 East Florida Avenue Light Industrial 1.44 19,493 86%
4301 South Federal Boulevard Light Industrial 2.80 35,381 100%
14401-14492 East 33rd Place Light Industrial 4.75 100,100 100%
11701 East 53rd Avenue Light Industrial 4.19 81,981 100%
5401 Oswego Street Light Industrial 2.80 53,838 100%
2630 West 2nd Avenue Light Industrial 0.50 8,260 100%
2650 West 2nd Avenue Light Industrial 2.80 36,081 100%
14818 West 6th Avenue Bldg A Light Industrial 2.54 39,776 100%
14828 West 6th Avenue Bldg B Light Industrial 2.54 41,925 91%
2075 South Valentia Light Industrial 2.42 22,093 86%
---------- -----
SUBTOTAL OR AVERAGE 3,651,688 94%
---------- -----
DES MOINES
1550 East Washington Avenue Bulk Warehouse 13.25 192,466 100%
1600 East Washington Avenue Bulk Warehouse 6.78 81,866 100%
5701 NE 17th Street Light Industrial 2.30 54,000 100%
4121 McDonald Avenue Bulk Warehouse 11.02 177,431 100%
4141 McDonald Avenue Bulk Warehouse 11.03 263,196 100%
4161 McDonald Avenue Bulk Warehouse 11.02 164,084 100%
---------- -----
SUBTOTAL OR AVERAGE 933,043 100%
---------- -----
DETROIT
2654 Elliott Light Industrial 0.75 9,700 0%
1731 Thorncroft Light Industrial 2.26 38,000 100%
1653 E. Maple Light Industrial 1.38 23,392 100%
47461 Clipper Light Industrial 1.10 11,600 100%
47522 Galleon Light Industrial 0.90 13,507 100%
4150 Varsity Drive Light Industrial 4.32 26,400 100%
1330 Crooks Road Light Industrial 5.55 42,360 100%
12000 Merriman Road Bulk Warehouse 9.28 180,000 100%
238 Executive Drive Bulk Warehouse 1.32 13,740 100%
256 Executive Drive Bulk Warehouse 1.12 11,273 100%
301 Executive Drive Bulk Warehouse 1.27 20,411 100%
449 Executive Drive Bulk Warehouse 2.12 33,001 100%
501 Executive Drive Light Industrial 1.57 18,061 100%
</TABLE>
13
<PAGE> 15
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- -------- ------------ ----------
<S> <C> <C> <C>
DETROIT (CON'T )
645 Executive Drive Troy, MI 1972
451 Robbins Drive Troy, MI 1975
700 Stephenson Highway Troy, MI 1978
800 Stephenson Highway Troy, MI 1979
1150 Stephenson Highway Troy, MI 1982
1200 Stephenson Highway Troy, MI 1980
1035 Crooks Road Troy, MI 1980
1095 Crooks Road Troy, MI 1986
1416 Meijer Drive Troy, MI 1980
1624 Meijer Drive Troy, MI 1984
1972 Meijer Drive Troy, MI 1985
2112 Meijer Drive Troy, MI 1980
1621 Northwood Drive Troy, MI 1977
1707 Northwood Drive Troy, MI 1983
1749 Northwood Drive Troy, MI 1977
1788 Northwood Drive Troy, MI 1977
1821 Northwood Drive Troy, MI 1977
1826 Northwood Drive Troy, MI 1977
1864 Northwood Drive Troy, MI 1977
1902 Northwood Drive Troy, MI 1977
1921 Northwood Drive Troy, MI 1977
2230 Elliott Avenue Troy, MI 1974
2237 Elliott Avenue Troy, MI 1974
2277 Elliott Avenue Troy, MI 1975
2291 Elliott Avenue Troy, MI 1974
2451 Elliott Avenue Troy, MI 1974
2730 Research Drive Rochester Hills, MI 1988
2791 Research Drive Rochester Hills, MI 1991
2871 Research Drive Rochester Hills, MI 1991
2911 Research Drive Rochester Hills, MI 1992
3011 Research Drive Rochester Hills, MI 1988
2870 Technology Drive Rochester Hills, MI 1988
2890 Technology Drive Rochester Hills, MI 1991
2900 Technology Drive Rochester Hills, MI 1992
2920 Technology Drive Rochester Hills, MI 1992
2930 Technology Drive Rochester Hills, MI 1991
2950 Technology Drive Rochester Hills, MI 1991
2960 Technology Drive Rochester Hills, MI 1992
23014 Commerce Drive Farmington Hills, MI 1983
23028 Commerce Drive Farmington Hills, MI 1983
25065 Commerce Drive Farmington Hill, MI 1983
23035 Commerce Drive Farmington Hills, MI 1983
23042 Commerce Drive Farmington Hills, MI 1983
23070 Commerce Drive Farmington Hills, MI 1983
23079 Commerce Drive Farmington Hills, MI 1983
23093 Commerce Drive Farmington Hills, MI 1983
23135 Commerce Drive Farmington Hills, MI 1986
23149 Commerce Drive Farmington Hills, MI 1985
23163 Commerce Drive Farmington Hills, MI 1986
23177 Commerce Drive Farmington Hills, MI 1986
23192 Commerce Drive Farmington Hills, MI 1986
23206 Commerce Drive Farmington Hills, MI 1985
23290 Commerce Drive Farmington Hills, MI 1980
23370 Commerce Drive Farmington Hills, MI 1980
24492 Indoplex Circle Farmington Hills, MI 1976
24528 Indoplex Circle Farmington Hills, MI 1976
31800 Plymouth Road - Bldg 1 Livonia, MI (a) 1968/89
31800 Plymouth Road - Bldg 2 Livonia, MI (a) 1968/89
31800 Plymouth Road - Bldg 3 Livonia, MI (a) 1968/89
31800 Plymouth Road - Bldg 6 Livonia, MI (a) 1968/89
31800 Plymouth Road - Bldg 7 Livonia, MI (a) 1968/89
21477 Bridge Street Southfield, MI 1986
2965 Technology Drive Rochester Hills, MI (b) 1995
1451 Lincoln Avenue Madison Heights, MI (b) 1967
4400 Purks Drive Auburn Hills, MI (b) 1987
4177A Varsity Drive Ann Arbor, MI (b) 1993
6515 Cobb Drive Sterling Heights, MI (b) 1984
32450 N. Avis Drive Madison Heights, MI 1974
32200 N. Avis Drive Madison Heights, MI 1973
32440-32442 Industrial Drive Madison Heights, MI 1979
32450 Industrial Drive Madison Heights, MI 1979
11813 Hubbard Livonia, MI 1979
11844 Hubbard Livonia, MI 1979
11866 Hubbard Livonia, MI 1979
12050-12190 Hubbard (j) Livonia, MI 1981
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- -------- --- --------
<S> <C> <C> <C> <C>
DETROIT (CON'T)
645 Executive Drive Light Industrial 2.27 32,470 100%
451 Robbins Drive Bulk Warehouse 1.88 28,401 100%
700 Stephenson Highway Light Industrial 3.13 29,344 100%
800 Stephenson Highway Light Industrial 4.39 48,200 0%
1150 Stephenson Highway Light Industrial 1.70 18,107 100%
1200 Stephenson Highway Light Industrial 2.65 25,025 100%
1035 Crooks Road Light Industrial 1.74 23,320 100%
1095 Crooks Road Light Industrial 2.83 35,042 100%
1416 Meijer Drive Light Industrial 1.20 17,944 100%
1624 Meijer Drive Light Industrial 3.42 44,040 100%
1972 Meijer Drive Light Industrial 2.36 37,075 100%
2112 Meijer Drive Bulk Warehouse 4.12 34,558 100%
1621 Northwood Drive Bulk Warehouse 1.54 24,900 100%
1707 Northwood Drive Light Industrial 1.69 28,750 100%
1749 Northwood Drive Bulk Warehouse 1.69 26,125 100%
1788 Northwood Drive Light Industrial 1.55 12,480 100%
1821 Northwood Drive Light Industrial 2.07 35,050 100%
1826 Northwood Drive Light Industrial 1.22 12,480 100%
1864 Northwood Drive Light Industrial 1.55 12,480 100%
1902 Northwood Drive Light Industrial 3.65 62,925 100%
1921 Northwood Drive Bulk Warehouse 2.33 42,000 100%
2230 Elliott Avenue Bulk Warehouse 0.90 12,612 100%
2237 Elliott Avenue Light Industrial 0.96 12,612 100%
2277 Elliott Avenue Light Industrial 0.96 12,612 100%
2291 Elliott Avenue Bulk Warehouse 1.06 12,200 100%
2451 Elliott Avenue Bulk Warehouse 1.68 24,331 100%
2730 Research Drive Bulk Warehouse 3.52 57,850 100%
2791 Research Drive Light Industrial 4.48 64,199 100%
2871 Research Drive Bulk Warehouse 3.55 49,543 100%
2911 Research Drive Bulk Warehouse 5.72 80,078 100%
3011 Research Drive Light Industrial 2.55 32,637 100%
2870 Technology Drive Bulk Warehouse 2.41 24,445 100%
2890 Technology Drive Light Industrial 1.76 24,410 100%
2900 Technology Drive Light Industrial 2.15 31,047 100%
2920 Technology Drive Bulk Warehouse 1.48 19,011 100%
2930 Technology Drive Bulk Warehouse 1.41 17,994 100%
2950 Technology Drive Light Industrial 1.48 19,996 100%
2960 Technology Drive Bulk Warehouse 3.83 41,565 100%
23014 Commerce Drive Light Industrial 0.65 7,200 100%
23028 Commerce Drive Bulk Warehouse 1.26 20,265 0%
25065 Commerce Drive Light Industrial 0.91 12,705 100%
23035 Commerce Drive Light Industrial 1.23 15,200 100%
23042 Commerce Drive Light Industrial 0.75 8,790 100%
23070 Commerce Drive Light Industrial 1.43 16,765 100%
23079 Commerce Drive Light Industrial 0.85 10,830 100%
23093 Commerce Drive Bulk Warehouse 3.87 49,040 100%
23135 Commerce Drive Light Industrial 2.02 23,969 100%
23149 Commerce Drive Bulk Warehouse 6.32 47,700 100%
23163 Commerce Drive Bulk Warehouse 1.51 19,020 100%
23177 Commerce Drive Bulk Warehouse 2.29 32,127 100%
23192 Commerce Drive Light Industrial 0.69 7,306 100%
23206 Commerce Drive Light Industrial 1.30 19,822 100%
23290 Commerce Drive Bulk Warehouse 2.56 42,930 100%
23370 Commerce Drive Light Industrial 0.67 8,741 0%
24492 Indoplex Circle Bulk Warehouse 1.63 24,000 100%
24528 Indoplex Circle Bulk Warehouse 2.26 34,650 100%
31800 Plymouth Road - Bldg 1 Light Industrial 42.71 705,829 99%
31800 Plymouth Road - Bldg 2 Bulk Warehouse 11.81 184,614 100%
31800 Plymouth Road - Bldg 3 Bulk Warehouse 6.13 98,024 96%
31800 Plymouth Road - Bldg 6 Bulk Warehouse 9.06 183,959 100%
31800 Plymouth Road - Bldg 7 Bulk Warehouse 1.64 26,836 100%
21477 Bridge Street Light Industrial 3.10 41,500 100%
2965 Technology Drive Light Industrial 4.92 66,395 100%
1451 Lincoln Avenue Light Industrial 3.92 75,000 100%
4400 Purks Drive Light Industrial 13.04 87,100 100%
4177A Varsity Drive Light Industrial 2.48 11,050 100%
6515 Cobb Drive Light Industrial 2.91 47,597 100%
32450 N. Avis Drive Light Industrial 3.23 55,820 100%
32200 N. Avis Drive Light Industrial 6.15 88,700 100%
32440-32442 Industrial Drive Light Industrial 1.41 19,200 63%
32450 Industrial Drive Light Industrial 0.76 10,350 100%
11813 Hubbard Light Industrial 1.95 33,300 100%
11844 Hubbard Light Industrial 2.16 38,500 100%
11866 Hubbard Light Industrial 2.32 41,380 100%
12050-12190 Hubbard (j) Light Industrial 6.10 85,086 100%
</TABLE>
14
<PAGE> 16
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- --------- ------------ ---------
<S> <C> <C> <C>
DETROIT (CON'T )
38200 Plymouth Livonia, MI 1997
38220 Plymouth Livonia, MI 1988
38300 Plymouth Livonia, MI 1997
12707 Eckles Road Plymouth, MI 1990
9300-9328 Harrison Rd Romulus, MI 1978
9330-9358 Harrison Rd Romulus, MI 1978
28420-28448 Highland Rd Romulus, MI 1979
28450-28478 Highland Rd Romulus, MI 1979
28421-28449 Highland Rd Romulus, MI 1980
28451-28479 Highland Rd Romulus, MI 1980
28825-28909 Highland Rd Romulus, MI 1981
28933-29017 Highland Rd Romulus, MI 1982
28824-28908 Highland Rd Romulus, MI 1982
28932-29016 Highland Rd Romulus, MI 1982
9710-9734 Harrison Road Romulus, MI 1987
9740-9772 Harrison Road Romulus, MI 1987
9840-9868 Harrison Road Romulus, MI 1987
9800-9824 Harrison Road Romulus, MI 1987
29265-29285 Airport Drive Romulus, MI 1983
29185-29225 Airport Drive Romulus, MI 1983
29149-29165 Airport Drive Romulus, MI 1984
29101-29115 Airport Drive Romulus, MI 1985
29031-29045 Airport Drive Romulus, MI 1985
29050-29062 Airport Drive Romulus, MI 1986
29120-29134 Airport Drive Romulus, MI 1986
29200-29214 Airport Drive Romulus, MI 1985
9301-9339 Middlebelt Road Romulus, MI 1983
21405 Trolley Industrial Road Taylor, MI 1971
26980 Trolley Industrial Drive Taylor, MI 1997
GRAND RAPIDS
3232 Kraft Avenue Grand Rapids, MI (c) 1988
8181 Logistics Drive Grand Rapids, MI (c) 1990
5062 Kendrick Court Grand Rapids, MI (c) 1987
2 84th Street Byron Center, MI 1986
100 84th Street Byron Center, MI 1979
150 84th Street Byron Center, MI 1977
511 76th Street Grand Rapids, MI 1986
553 76th Street Grand Rapids, MI 1985
555 76th Street Grand Rapids, MI 1987
2925 Remico Avenue Grandville, MI 1988
2935 Walkent Court Grand Rapids, MI 1991
3300 Kraft Avenue Grand Rapids, MI 1987
3366 Kraft Avenue Grand Rapids, MI 1987
4939 Starr Avenue Grand Rapids, MI 1985
5001 Kendrick Court Grand Rapids, MI 1983
5050 Kendrick Court Grand Rapids, MI (a) 1988
5015 52nd Street Grand Rapids, MI (a) 1987
5025 28th Street Grand Rapids, MI 1967
5079 33rd Street Grand Rapids, MI 1990
5333 33rd Street Grand Rapids, MI 1991
5130 Patterson Ave Grand Rapids, MI 1987
425 Gordon Industrial Court Grand Rapids, MI (b) 1990
2851 Prairie Street Grandville, MI (b) 1989
2945 Walkent Court Grand Rapids, MI (b) 1993
537 76th Street Grand Rapids, MI (b) 1987
HOUSTON
2102-2314 Edwards Street Houston, TX 1961
4545 Eastpark Drive Houston, TX 1972
3351 Ranch Street Houston, TX 1970
3851 Yale Street Houston, TX 1971
3337-3347 Ranch Street Houston, TX 1970
8505 North Loop East Houston, TX 1981
4749-4799 Eastpark Dr Houston, TX 1979
4851 Homestead Road Houston, TX 1973
3365-3385 Ranch Street Houston, TX 1970
5050 Campbell Road Houston, TX 1970
4300 Pine Timbers Houston, TX 1980
10600 Hampstead Houston, TX 1974
2300 Fairway Park Drive Houston, TX 1974
7969 Blakenship Houston, TX 1972
8001 Kempwood Houston, TX 1972
7901 Blankenship Houston, TX 1972
2500-2530 Fairway Park Houston, TX 1974
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- ------- --- --------
<S> <C> <C> <C> <C>
DETROIT (CON'T )
38200 Plymouth Bulk Warehouse 11.43 140,365 100%
38220 Plymouth Bulk Warehouse 13.14 145,232 100%
38300 Plymouth Bulk Warehouse 6.95 127,800 100%
12707 Eckles Road Light Industrial 2.62 42,300 100%
9300-9328 Harrison Rd Bulk Warehouse 2.53 29,280 75%
9330-9358 Harrison Rd Bulk Warehouse 2.53 29,280 63%
28420-28448 Highland Rd Bulk Warehouse 2.53 29,280 100%
28450-28478 Highland Rd Bulk Warehouse 2.53 29,340 100%
28421-28449 Highland Rd Bulk Warehouse 2.53 29,280 88%
28451-28479 Highland Rd Bulk Warehouse 2.53 29,280 100%
28825-28909 Highland Rd Bulk Warehouse 2.53 29,284 100%
28933-29017 Highland Rd Bulk Warehouse 2.53 29,280 100%
28824-28908 Highland Rd Bulk Warehouse 2.53 29,280 100%
28932-29016 Highland Rd Bulk Warehouse 2.53 29,280 100%
9710-9734 Harrison Road Bulk Warehouse 2.22 25,925 100%
9740-9772 Harrison Road Bulk Warehouse 2.53 29,414 50%
9840-9868 Harrison Road Bulk Warehouse 2.53 29,280 100%
9800-9824 Harrison Road Bulk Warehouse 2.22 25,620 100%
29265-29285 Airport Drive Bulk Warehouse 2.05 23,707 100%
29185-29225 Airport Drive Bulk Warehouse 3.17 36,658 100%
29149-29165 Airport Drive Bulk Warehouse 2.89 33,440 100%
29101-29115 Airport Drive Bulk Warehouse 2.53 29,287 100%
29031-29045 Airport Drive Bulk Warehouse 2.53 29,280 100%
29050-29062 Airport Drive Bulk Warehouse 2.22 25,620 100%
29120-29134 Airport Drive Bulk Warehouse 2.53 29,282 100%
29200-29214 Airport Drive Bulk Warehouse 2.53 29,280 100%
9301-9339 Middlebelt Road Light Industrial 1.29 15,170 100%
21405 Trolley Industrial Road Bulk Warehouse 11.25 179,400 99%
26980 Trolley Industrial Drive Bulk Warehouse 5.43 102,400 100%
---------- -----
SUBTOTAL OR AVERAGE 5,302,927 97%
---------- -----
GRAND RAPIDS
3232 Kraft Avenue Bulk Warehouse 13.15 216,000 92%
8181 Logistics Drive Bulk Warehouse 10.00 222,000 100%
5062 Kendrick Court Bulk Warehouse 2.06 31,750 100%
2 84th Street Bulk Warehouse 3.01 30,000 67%
100 84th Street Bulk Warehouse 4.20 81,000 100%
150 84th Street Light Industrial 1.95 16,000 100%
511 76th Street Bulk Warehouse 14.44 202,500 100%
553 76th Street Light Industrial 1.16 10,000 59%
555 76th Street Bulk Warehouse 12.50 200,000 100%
2925 Remico Avenue Bulk Warehouse 3.40 66,505 100%
2935 Walkent Court Bulk Warehouse 6.13 64,961 42%
3300 Kraft Avenue Bulk Warehouse 11.57 200,000 100%
3366 Kraft Avenue Bulk Warehouse 12.35 200,000 94%
4939 Starr Avenue Bulk Warehouse 3.87 30,000 100%
5001 Kendrick Court Bulk Warehouse 4.00 61,500 100%
5050 Kendrick Court Bulk Warehouse 26.94 413,500 100%
5015 52nd Street Bulk Warehouse 4.11 61,250 100%
5025 28th Street Light Industrial 3.97 14,400 100%
5079 33rd Street Bulk Warehouse 6.74 109,875 100%
5333 33rd Street Bulk Warehouse 8.09 101,250 100%
5130 Patterson Ave Bulk Warehouse 6.57 30,000 100%
425 Gordon Industrial Court Bulk Warehouse 8.77 173,875 100%
2851 Prairie Street Bulk Warehouse 5.45 117,251 84%
2945 Walkent Court Bulk Warehouse 4.45 93,374 100%
537 76th Street Bulk Warehouse 5.26 80,000 100%
---------- -----
SUBTOTAL OR AVERAGE 2,826,991 96%
---------- -----
HOUSTON
2102-2314 Edwards Street Bulk Warehouse 5.02 115,248 100%
4545 Eastpark Drive Bulk Warehouse 3.80 81,295 100%
3351 Ranch Street Bulk Warehouse 4.04 82,500 100%
3851 Yale Street Bulk Warehouse 5.77 132,554 100%
3337-3347 Ranch Street Bulk Warehouse 2.29 60,085 100%
8505 North Loop East Bulk Warehouse 4.99 107,769 100%
4749-4799 Eastpark Dr Bulk Warehouse 7.75 182,563 100%
4851 Homestead Road Bulk Warehouse 3.63 142,250 90%
3365-3385 Ranch Street Bulk Warehouse 3.31 82,140 100%
5050 Campbell Road Bulk Warehouse 6.10 121,875 100%
4300 Pine Timbers Bulk Warehouse 4.80 113,400 100%
10600 Hampstead Light Industrial 1.26 19,063 100%
2300 Fairway Park Drive Light Industrial 1.25 19,008 100%
7969 Blakenship Light Industrial 2.27 48,140 100%
8001 Kempwood Light Industrial 1.45 33,034 100%
7901 Blankenship Light Industrial 2.17 48,000 100%
2500-2530 Fairway Park Bulk Warehouse 8.72 213,638 100%
</TABLE>
15
<PAGE> 17
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- --------- ------------ ---------
HOUSTON (CON'T )
<S> <C> <C> <C>
6550 Longpointe Houston, TX 1980
1815 Turning Basin Drive Houston, TX 1980
1819 Turning Basin Drive Houston, TX 1980
4545 Mossford Drive Houston, TX 1975
1805 Turning Basin Drive Houston, TX 1980
7000 Empire Drive Houston, TX (i) 1980
9777 West Gulfbank Drive Houston, TX (i) 1980
INDIANAPOLIS
2900 North Shadeland Indianapolis, IN (d) 1957/1992
2400 North Shadeland Indianapolis, IN 1970
2402 North Shadeland Indianapolis, IN 1970
7901 West 21st Street Indianapolis, IN 1985
1445 Brookville Way Indianapolis, IN (d) 1989
1440 Brookville Way Indianapolis, IN (d) 1990
1240 Brookville Way Indianapolis, IN (d) 1990
1220 Brookville Way Indianapolis, IN (d) 1990
1345 Brookville Way Indianapolis, IN (e) 1992
1350 Brookville Way Indianapolis, IN (d) 1994
1315 Sadlier Circle East Drive Indianapolis, IN (e) 1970/1992
1341 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1322-1438 Sadlier Circle East Dr Indianapolis, IN (e) 1971/1992
1327-1441 Sadlier Circle West Dr Indianapolis, IN (e) 1992
1304 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1402 Sadlier Circle East Drive Indianapolis, IN (e) 1970/1992
1504 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1311 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1365 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1352-1354 Sadlier Circle E Drive Indianapolis, IN (e) 1970/1992
1335 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1327 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1425 Sadlier Circle East Drive Indianapolis, IN (e) 1971/1992
1230 Brookville Way Indianapolis, IN (d) 1995
6951 East 30th Street Indianapolis, IN 1995
6701 East 30th Street Indianapolis, IN 1995
6737 East 30th Street Indianapolis, IN 1995
1225 Brookville Way Indianapolis, IN 1997
6555 East 30th Street Indianapolis, IN 1969/1981
2432-2436 Shadeland Indianapolis, IN 1968
8402-8440 East 33rd Street Indianapolis, IN 1977
8520-8630 East 33rd Street Indianapolis, IN 1976
8710-8768 East 33rd Street Indianapolis, IN 1979
3316-3346 North Pagosa Court Indianapolis, IN 1977
3331 Raton Court Indianapolis, IN 1979
4430 Airport Expressway Indianapolis, IN 1970
6751 East 30th Street Indianapolis, IN 1997
LONG ISLAND
1140 Motor Parkway Huppauge, NY 1978
10 Edison Street Amityville, NY 1971
120 Secatogue Avenue Farmingdale, NY 1957
100 Lauman Lane Hicksville, NY 1968
200 Finn Court Farmingdale, NY 1965
243 Dixon Avenue Amityville, NY 1978
717 Broadway Avenue Holbrook, NY 1967
725 Broadway Avenue Holbrook, NY 1967
270 Duffy Avenue Hicksville, NY 1956
280 Duffy Avenue Hicksville, NY 1956
575 Underhill Boulevard Syosset, NY 1967
5 Sidney Court Lindenhurst, NY 1962
7 Sidney Court Lindenhurst, NY 1964
450 Commack Road Deer Park, NY 1964
99 Layfayette Drive Syosset, NY 1964
65 East Bethpage Road Plainview, NY 1960
171 Milbar Boulevard Farmingdale, NY 1961
95 Horseblock Road Yaphank, NY 1971
151-171 East 2nd Street Huntington, NY 1968
171-175 East 2nd Street Huntington, NY 1969
35 Bloomingdale Road Hicksville, NY 1962
15-39 Tec Street Hicksville, NY 1965
100 Tec Street Hicksville, NY 1965
51-89 Tec Street Hicksville, NY 1965
502 Old Country Road Hicksville, NY 1965
80-98 Tec Street Hicksville, NY 1965
201-233 Park Avenue Hicksville, NY 1962
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- ------- --- --------
HOUSTON (CON'T )
<S> <C> <C> <C> <C>
6550 Longpointe Bulk Warehouse 4.13 97,700 100%
1815 Turning Basin Drive Bulk Warehouse 6.34 139,630 100%
1819 Turning Basin Drive Bulk Warehouse 2.85 65,494 100%
4545 Mossford Drive Bulk Warehouse 3.56 66,565 100%
1805 Turning Basin Drive Bulk Warehouse 7.60 155,250 100%
7000 Empire Drive Light Industrial 6.25 94,781 94%
9777 West Gulfbank Drive Light Industrial 15.45 252,038 96%
---------- -----
SUBTOTAL OR AVERAGE 2,474,020 99%
---------- -----
INDIANAPOLIS
2900 North Shadeland Bulk Warehouse 60.00 976,273 98%
2400 North Shadeland Light Industrial 2.45 40,000 100%
2402 North Shadeland Light Industrial 7.55 121,539 100%
7901 West 21st Street Light Industrial 12.00 353,000 100%
1445 Brookville Way Light Industrial 8.79 115,200 100%
1440 Brookville Way Bulk Warehouse 9.64 166,400 100%
1240 Brookville Way Bulk Warehouse 3.50 63,000 100%
1220 Brookville Way Light Industrial 2.10 10,000 100%
1345 Brookville Way Light Industrial 5.50 132,000 100%
1350 Brookville Way Bulk Warehouse 2.87 38,460 100%
1315 Sadlier Circle East Drive Light Industrial 1.33 14,000 100%
1341 Sadlier Circle East Drive Light Industrial 2.03 32,400 100%
1322-1438 Sadlier Circle East Dr Light Industrial 3.79 36,000 100%
1327-1441 Sadlier Circle West Dr Light Industrial 5.50 54,000 100%
1304 Sadlier Circle East Drive Light Industrial 2.42 17,600 100%
1402 Sadlier Circle East Drive Light Industrial 4.13 40,800 100%
1504 Sadlier Circle East Drive Light Industrial 4.14 54,000 100%
1311 Sadlier Circle East Drive Light Industrial 1.78 13,200 100%
1365 Sadlier Circle East Drive Light Industrial 2.16 30,000 100%
1352-1354 Sadlier Circle E Drive Light Industrial 3.50 44,000 55%
1335 Sadlier Circle East Drive Light Industrial 1.20 20,000 100%
1327 Sadlier Circle East Drive Light Industrial 1.20 12,800 100%
1425 Sadlier Circle East Drive Light Industrial 2.49 5,000 100%
1230 Brookville Way Light Industrial 1.96 15,000 100%
6951 East 30th Street Light Industrial 3.81 44,000 100%
6701 East 30th Street Light Industrial 3.00 7,820 100%
6737 East 30th Street Bulk Warehouse 11.01 87,500 100%
1225 Brookville Way Light Industrial 1.00 10,000 100%
6555 East 30th Street Bulk Warehouse 37.00 331,826 78%
2432-2436 Shadeland Light Industrial 4.57 70,560 100%
8402-8440 East 33rd Street Light Industrial 4.70 55,200 100%
8520-8630 East 33rd Street Light Industrial 5.30 81,000 83%
8710-8768 East 33rd Street Light Industrial 4.70 43,200 100%
3316-3346 North Pagosa Court Light Industrial 5.10 81,000 100%
3331 Raton Court Light Industrial 2.80 35,000 100%
4430 Airport Expressway Bulk Warehouse 32.00 486,394 100%
6751 East 30th Street Bulk Warehouse 6.34 100,000 92%
---------- -----
SUBTOTAL OR AVERAGE 3,838,172 97%
---------- -----
LONG ISLAND
1140 Motor Parkway Bulk Warehouse 8.00 153,500 100%
10 Edison Street Light Industrial 1.40 34,400 100%
120 Secatogue Avenue Bulk Warehouse 2.60 63,571 66%
100 Lauman Lane Bulk Warehouse 1.90 36,700 74%
200 Finn Court Bulk Warehouse 5.00 105,000 100%
243 Dixon Avenue Light Industrial 1.30 22,250 100%
717 Broadway Avenue Bulk Warehouse 12.30 150,000 100%
725 Broadway Avenue Bulk Warehouse 8.00 122,160 82%
270 Duffy Avenue Light Industrial 8.40 134,382 97%
280 Duffy Avenue Light Industrial 2.60 49,200 100%
575 Underhill Boulevard Light Industrial 16.60 233,424 97%
5 Sidney Court Light Industrial 1.70 29,300 100%
7 Sidney Court Light Industrial 5.10 34,000 100%
450 Commack Road Light Industrial 5.10 60,005 96%
99 Layfayette Drive Bulk Warehouse 10.90 221,454 99%
65 East Bethpage Road Light Industrial 1.40 27,276 93%
171 Milbar Boulevard Light Industrial 2.30 62,600 99%
95 Horseblock Road Light Industrial 20.00 180,906 79%
151-171 East 2nd Street Light Industrial 2.70 42,725 100%
171-175 East 2nd Street Light Industrial 2.60 42,374 100%
35 Bloomingdale Road Light Industrial 1.40 32,850 100%
15-39 Tec Street Light Industrial 1.10 17,350 100%
100 Tec Street Light Industrial 1.20 25,000 100%
51-89 Tec Street Light Industrial 1.20 21,850 85%
502 Old Country Road Light Industrial 0.50 10,000 100%
80-98 Tec Street Light Industrial 0.75 13,050 100%
201-233 Park Avenue Light Industrial 1.70 36,917 100%
</TABLE>
16
<PAGE> 18
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- --------- ------------ ---------
<S> <C> <C> <C>
LONG ISLAND (CON'T )
6851 Jericho Turnpike Syosset, NY 1969
One Fairchild Court Plainview, NY 1959
79 Express Street Plainview, NY 1972
92 Central Avenue Farmingdale, NY 1961
160 Engineer Drive Hicksville, NY 1966
260 Engineers Drive Hicksville, NY 1966
87-119 Engineers Drive (j) Hicksville, NY 1966
950-970 South Broadway Hicksville, NY 1966
290 Duffy Avenue Hicksville, NY (f) 1974
185 Price Parkway Farmingdale, NY 1969
62 Alpha Plaza Hicksville, NY 1968
90 Alpha Plaza Hicksville, NY 1969
325 Duffy Avenue Hicksville, NY 1970
939 Motor Parkway Hauppauge, NY 1977
2070 5th Avenue Ronkonkoma, NY 1975
200 13th Avenue Ronkonkoma, NY 1979
100 13th Avenue Ronkonkoma, NY 1979
1 Comac Loop Ronkonkoma, NY 1980
80 13th Avenue Ronkonkoma, NY 1983
90 13th Avenue Ronkonkoma, NY 1982
33 Comac Loop Ronkonkoma, NY 1983
101-125 Comac Street Ronkonkoma, NY 1985
MILWAUKEE
N25 W23050 Paul Road Pewaukee, WI 1989
N25 W23255 Paul Road Pewaukee, WI 1987
N27 W23293 Roundy Drive Pewaukee, WI 1989
6523 North Sidney Place Glendale, WI 1978
8800 West Bradley Milwaukee, WI 1982
1435 North 113th Street Wauwatosa, WI 1993
11217-43 West Becher Street West Allis, WI 1979
2152 South 114th Street West Allis, WI 1980
4560 North 124th Street Wauwatosa, WI 1976
12221 West Feerick Street Wauwatosa, WI 1971
MINNEAPOLIS/ST. PAUL
2700 Freeway Boulevard Brooklyn Center, MN (c) 1981
6507-6545 Cecilia Circle Bloomington, MN 1980
6403-6545 Cecilia Drive Bloomington, MN 1980
1275 Corporate Center Drive Eagan, MN 1990
1279 Corporate Center Drive Eagan, MN 1990
2815 Eagandale Boulevard Eagan, MN 1990
6201 West 111th Street Bloomington, MN (a) 1987
6925-6943 Washington Avenue Edina, MN 1972
6955-6973 Washington Avenue Edina, MN 1972
7251-7267 Washington Avenue Edina, MN 1972
7301-7325 Washington Avenue Edina, MN 1972
7101 Winnetka Avenue North Brooklyn Park, MN (a) 1990
7600 Golden Triangle Drive Eden Prairie, MN 1989
7830-7848 12th Avenue South Bloomington, MN 1978
7850-7890 12th Avenue South Bloomington, MN 1978
7900 Main Street Northeast Fridley, MN 1973
7901 Beech Street Northeast Fridley, MN 1975
9901 West 74th Street Eden Prairie, MN 1983/88
10120 West 76th Street Eden Prairie, MN 1987
7615 Golden Triangle Eden Prairie, MN 1987
7625 Golden Triangle Drive Eden Prairie, MN 1987
2605 Fernbrook Lane North Plymouth, MN 1987
12155 Nicollet Avenue Burnsville, MN 1995
6655 Wedgewood Road Maple Grove, MN (b) 1989
900 Apollo Road Egan, MN (b) 1970
7316 Aspen Land Brooklyn Park, MN (b) 1978
10175-10205 Crosstown Circle Eden Prairie, MN 1980
11201 Hampshire Avenue South Bloomington, MN 1986
12220-12222 Nicollet Avenue Burnsville, MN 1989/90
12250-12268 Nicollet Avenue Burnsville, MN 1989/90
12224-12226 Nicollet Avenue Burnsville, MN 1989/90
305 2nd Street Northwest New Brighton, MN 1991
953 Westgate Drive St Paul, MN 1991
980 Lone Oak Road Eagan, MN 1992
990 Lone Oak Road Eagan, MN 1989
1030 Lone Oak Road Eagan, MN 1988
1060 Lone Oak Road Eagan, MN 1988
5400 Nathan Lane Plymouth, MN 1990
6464 Sycamore Court Maplegrove, MN 1990
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- -------- --- --------
<S> <C> <C> <C> <C>
LONG ISLAND (CON'T )
6851 Jericho Turnpike Light Industrial 11.80 134,991 91%
One Fairchild Court Light Industrial 5.75 57,420 93%
79 Express Street Light Industrial 4.70 72,146 79%
92 Central Avenue Bulk Warehouse 4.70 72,000 92%
160 Engineer Drive Light Industrial 1.90 29,500 100%
260 Engineers Drive Light Industrial 2.80 52,900 100%
87-119 Engineers Drive (j) Light Industrial 1.70 36,800 100%
950-970 South Broadway Light Industrial 2.65 55,146 90%
290 Duffy Avenue Light Industrial 3.00 55,050 100%
185 Price Parkway Light Industrial 6.40 100,000 100%
62 Alpha Plaza Light Industrial 2.64 34,600 100%
90 Alpha Plaza Light Industrial 1.36 34,035 78%
325 Duffy Avenue Light Industrial 6.64 100,000 100%
939 Motor Parkway Light Industrial 1.50 21,900 0%
2070 5th Avenue Light Industrial 3.66 50,296 100%
200 13th Avenue Light Industrial 4.70 72,089 100%
100 13th Avenue Light Industrial 4.14 62,898 100%
1 Comac Loop Light Industrial 5.18 63,765 73%
80 13th Avenue Light Industrial 6.22 87,102 87%
90 13th Avenue Light Industrial 6.95 105,519 100%
33 Comac Loop Light Industrial 5.37 71,904 92%
101-125 Comac Street Light Industrial 8.42 99,467 95%
---------- -----
SUBTOTAL OR AVERAGE 3,431,772 94%
---------- ------
MILWAUKEE
N25 W23050 Paul Road Light Industrial 4.50 37,765 100%
N25 W23255 Paul Road Light Industrial 4.80 55,940 100%
N27 W23293 Roundy Drive Light Industrial 3.64 39,468 100%
6523 North Sidney Place Light Industrial 4.00 43,440 83%
8800 West Bradley Light Industrial 8.00 78,000 100%
1435 North 113th Street Light Industrial 4.69 51,950 100%
11217-43 West Becher Street Light Industrial 1.74 29,099 100%
2152 South 114th Street Light Industrial 3.30 63,680 100%
4560 North 124th Street Light Industrial 1.31 25,150 100%
12221 West Feerick Street Light Industrial 1.90 39,800 100%
---------- -----
SUBTOTAL OR AVERAGE 464,292 98%
---------- -----
MINNEAPOLIS/ST. PAUL
2700 Freeway Boulevard Light Industrial 7.76 78,741 100%
6507-6545 Cecilia Circle Light Industrial 9.65 74,118 79%
6403-6545 Cecilia Drive Light Industrial 9.65 87,322 92%
1275 Corporate Center Drive Bulk Warehouse 1.50 19,675 100%
1279 Corporate Center Drive Bulk Warehouse 1.50 19,792 100%
2815 Eagandale Boulevard Bulk Warehouse 2.20 29,106 100%
6201 West 111th Street Bulk Warehouse 37.00 424,866 100%
6925-6943 Washington Avenue Light Industrial 2.75 37,169 88%
6955-6973 Washington Avenue Light Industrial 2.25 31,189 96%
7251-7267 Washington Avenue Light Industrial 1.82 26,250 100%
7301-7325 Washington Avenue Light Industrial 1.92 27,287 100%
7101 Winnetka Avenue North Light Industrial 14.18 252,978 100%
7600 Golden Triangle Drive Light Industrial 6.79 73,855 100%
7830-7848 12th Avenue South Light Industrial 8.11 82,837 100%
7850-7890 12th Avenue South Light Industrial 8.11 67,271 86%
7900 Main Street Northeast Bulk Warehouse 6.09 97,020 100%
7901 Beech Street Northeast Bulk Warehouse 6.07 97,020 100%
9901 West 74th Street Bulk Warehouse 8.86 150,000 100%
10120 West 76th Street Light Industrial 4.52 57,798 100%
7615 Golden Triangle Light Industrial 4.61 52,820 100%
7625 Golden Triangle Drive Light Industrial 4.61 73,125 97%
2605 Fernbrook Lane North Light Industrial 6.37 80,769 90%
12155 Nicollet Avenue Bulk Warehouse 5.80 48,000 100%
6655 Wedgewood Road Light Industrial 17.88 131,288 100%
900 Apollo Road Bulk Warehouse 39.00 312,265 100%
7316 Aspen Land Bulk Warehouse 6.63 97,640 100%
10175-10205 Crosstown Circle Light Industrial 2.30 30,335 98%
11201 Hampshire Avenue South Light Industrial 5.90 60,480 100%
12220-12222 Nicollet Avenue Light Industrial 1.80 17,116 100%
12250-12268 Nicollet Avenue Light Industrial 4.30 42,465 100%
12224-12226 Nicollet Avenue Light Industrial 2.40 23,607 78%
305 2nd Street Northwest Light Industrial 5.43 62,293 99%
953 Westgate Drive Light Industrial 3.17 51,906 100%
980 Lone Oak Road Light Industrial 11.40 154,950 100%
990 Lone Oak Road Light Industrial 11.41 153,607 100%
1030 Lone Oak Road Bulk Warehouse 6.30 83,076 100%
1060 Lone Oak Road Light Industrial 6.50 82,728 100%
5400 Nathan Lane Light Industrial 5.70 72,089 100%
6464 Sycamore Court Light Industrial 6.40 79,702 100%
</TABLE>
17
<PAGE> 19
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- ---------- ------------ ---------
MINNEAPOLIS/ST. PAUL (CON'T)
<S> <C> <C> <C>
6701 Parkway Circle Brooklyn Center, MN 1987
6601 Shingle Creek Brooklyn Center, MN 1985
6707 Shingle Creek Parkway Brooklyn Center, MN (b) 1986
9401 73rd Avenue North Brooklyn Park, MN 1995
1905 West Country Road C Roseville, MN 1993
2720 Arthur Street Roseville, MN 1995
10205 51st Avenue North Plymouth, MN 1990
4100 Peavey Road Chaska, MN 1988
11300 Hampshire Avenue South Bloomington, MN 1983
375 Rivertown Drive Woodbury, MN 1996
5205 Highway 169 Plymouth, MN 1960
6451-6595 Citywest Parkway Eden Prairie, MN 1984
7100-7198 Shady Oak Road (k) Eden Prairie, MN 1982
1565 First Avenue NW New Brighton, MN 1978
7125 Northland Terrace Brooklyn Park, MN 1996
6900 Shady Oak Road Eden Prairie, MN 1980
7550-7588 Washington Square Eden Prairie, MN 1975
7500-7546 Washington Square Eden Prairie, MN 1975
5240-5300 Valley Industrial Blvd Shakopee, MN 1973
6477-6525 City West Parkway Eden Prairie, MN 1984
NASHVILLE
1621 Heil Quaker Boulevard Nashville, TN (c) 1975
417 Harding Industrial Drive Nashville, TN (a) 1972
520 Harding Drive (j) Nashville, TN (a) 1975
3099 Barry Drive Portland, TN 1995
3150 Barry Drive Portland, TN 1993
1650 Elm Hill Pike Nashville, TN 1984
1821 Air Lane Drive Nashville, TN 1984
1102 Appleton Drive Nashville, TN 1984
1920 Air Lane Drive Nashville, TN 1985
1931 Air Lane Drive Nashville, TN 1984
470 Metroplex Drive (j) Nashville, TN 1986
1150 Antiock Pike Nashville, TN 1987
5599 Highway 31 West Portland, TN 1995
NEW JERSEY
116 Lehigh Drive Fairfield, NJ 1986
60 Ethel Road West Piscataway, NJ 1982
70 Ethel Road West Piscataway, NJ 1979
105 Neptune Boulevard Neptune, NJ 1989
140 Hanover Avenue Hanover, NJ 1964/1988
601-629 Montrose Avenue South Plainfield, NJ 1974
3 Marlen Hamilton, NJ 1981
5 Marlen Hamilton, NJ 1981
7 Marlen Hamilton, NJ 1982
8 Marlen Hamilton, NJ 1982
15 Marlen Hamilton, NJ 1982
17 Marlen Hamilton, NJ 1981
1 South Gold Drive Hamilton, NJ 1973
2 South Gold Drive Hamilton, NJ 1974
5 South Gold Drive Hamilton, NJ 1974
6 South Gold Drive Hamilton, NJ 1975
7 South Gold Drive Hamilton, NJ 1976
8 South Gold Drive Hamilton, NJ 1977
9 South Gold Drive Hamilton, NJ 1980
11 South Gold Drive Hamilton, NJ 1979
12 South Gold Drive Hamilton, NJ 1980
9 Princess Road Lawrenceville, NJ 1985
11 Princess Road Lawrenceville, NJ 1985
15 Princess Road Lawrenceville, NJ 1986
17 Princess Road Lawrenceville, NJ 1986
220 Hanover Avenue Hanover, NJ 1987
244 Shefield Street Mountainside, NJ 1965/1986
30 Troy Road Hanover, NJ 1972
15 Leslie Court Hanover, NJ 1971
20 Leslie Court Hanover, NJ 1974
25 Leslie Court Hanover, NJ 1975
130 Algonquin Parkway Hanover, NJ 1973
150 Algonquin Parkway Hanover, NJ 1973
55 Locust Avenue Roseland, NJ 1980
31 West Forest Street (j) Englewood, NJ 1978
25 World's Fair Drive Franklin, NJ 1986
14 World's Fair Drive Franklin, NJ 1980
16 World's Fair Drive Franklin, NJ 1981
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- -------- --- --------
<S> <C> <C> <C> <C>
MINNEAPOLIS/ST. PAUL (CON'T)
6701 Parkway Circle Light Industrial 4.44 75,000 100%
6601 Shingle Creek Light Industrial 4.59 68,899 99%
6707 Shingle Creek Parkway Light Industrial 4.22 75,939 100%
9401 73rd Avenue North Light Industrial 4.46 59,782 100%
1905 West Country Road C Light Industrial 4.60 47,735 100%
2720 Arthur Street Light Industrial 6.06 74,337 100%
10205 51st Avenue North Light Industrial 2.00 30,476 100%
4100 Peavey Road Light Industrial 8.27 78,029 64%
11300 Hampshire Avenue South Bulk Warehouse 9.94 125,950 54%
375 Rivertown Drive Bulk Warehouse 11.33 172,800 100%
5205 Highway 169 Light Industrial 7.92 97,770 95%
6451-6595 Citywest Parkway Light Industrial 6.98 83,189 99%
7100-7198 Shady Oak Road (k) Bulk Warehouse 14.44 187,777 100%
1565 First Avenue NW Light Industrial 8.87 112,082 100%
7125 Northland Terrace Light Industrial 5.89 79,675 82%
6900 Shady Oak Road Light Industrial 4.60 49,190 100%
7550-7588 Washington Square Light Industrial 2.70 29,739 100%
7500-7546 Washington Square Light Industrial 5.40 44,600 100%
5240-5300 Valley Industrial Blvd Light Industrial 9.06 80,000 88%
6477-6525 City West Parkway Light Industrial 7.00 89,456 64%
---------- ------
SUBTOTAL OR AVERAGE 5,106,980 96%
---------- ------
NASHVILLE
1621 Heil Quaker Boulevard Bulk Warehouse 11.29 160,661 100%
417 Harding Industrial Drive Bulk Warehouse 13.70 207,440 100%
520 Harding Drive (j) Bulk Warehouse 16.64 392,128 100%
3099 Barry Drive Bulk Warehouse 6.20 109,058 100%
3150 Barry Drive Bulk Warehouse 26.32 268,253 100%
1650 Elm Hill Pike Light Industrial 3.46 41,228 100%
1821 Air Lane Drive Light Industrial 2.54 25,300 100%
1102 Appleton Drive Light Industrial 1.73 28,022 82%
1920 Air Lane Drive Light Industrial 3.19 49,912 81%
1931 Air Lane Drive Light Industrial 10.11 87,549 95%
470 Metroplex Drive (j) Light Industrial 8.11 102,052 99%
1150 Antiock Pike Light Industrial 9.83 146,055 100%
5599 Highway 31 West Bulk Warehouse 20.00 161,500 100%
---------- ------
SUBTOTAL OR AVERAGE 1,779,158 99%
---------- ------
NEW JERSEY
116 Lehigh Drive Bulk Warehouse 5.00 106,184 100%
60 Ethel Road West Light Industrial 3.93 42,802 100%
70 Ethel Road West Light Industrial 3.78 61,500 100%
105 Neptune Boulevard Light Industrial 10.00 20,440 80%
140 Hanover Avenue Light Industrial 2.95 25,261 72%
601-629 Montrose Avenue Light Industrial 5.83 75,000 93%
3 Marlen Light Industrial 1.11 13,174 100%
5 Marlen Light Industrial 1.56 21,000 100%
7 Marlen Light Industrial 2.05 28,400 100%
8 Marlen Light Industrial 4.36 60,001 100%
15 Marlen Light Industrial 1.19 13,562 100%
17 Marlen Light Industrial 1.32 20,030 100%
1 South Gold Drive Light Industrial 1.50 20,009 95%
2 South Gold Drive Light Industrial 1.15 33,928 62%
5 South Gold Drive Light Industrial 1.97 24,000 100%
6 South Gold Drive Light Industrial 1.00 13,580 100%
7 South Gold Drive Light Industrial 1.00 10,218 100%
8 South Gold Drive Light Industrial 1.14 16,907 100%
9 South Gold Drive Light Industrial 1.00 13,566 100%
11 South Gold Drive Light Industrial 1.97 33,114 100%
12 South Gold Drive Light Industrial 1.29 20,240 100%
9 Princess Road Light Industrial 2.36 24,375 100%
11 Princess Road Light Industrial 5.33 55,000 82%
15 Princess Road Light Industrial 2.00 20,625 100%
17 Princess Road Light Industrial 1.82 18,750 100%
220 Hanover Avenue Bulk Warehouse 29.27 158,242 100%
244 Shefield Street Light Industrial 2.20 23,000 100%
30 Troy Road Light Industrial 1.31 17,345 100%
15 Leslie Court Light Industrial 3.08 18,000 100%
20 Leslie Court Light Industrial 1.38 17,997 100%
25 Leslie Court Light Industrial 1.30 70,755 100%
130 Algonquin Parkway Light Industrial 5.50 29,008 100%
150 Algonquin Parkway Light Industrial 2.47 17,531 100%
55 Locust Avenue Bulk Warehouse 13.63 79,750 100%
31 West Forest Street (j) Light Industrial 6.00 110,000 100%
25 World's Fair Drive Light Industrial 1.81 20,000 100%
14 World's Fair Drive Light Industrial 4.53 60,000 100%
16 World's Fair Drive Light Industrial 3.62 43,400 100%
</TABLE>
18
<PAGE> 20
<TABLE>
<CAPTION>
LOCATION YEAR BUILT-
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED
---------------- ---------- ------------ ---------
<S> <C> <C> <C>
NEW JERSEY (CON'T )
18 World's Fair Drive Franklin, NJ 1982
23 World's Fair Drive Franklin, NJ 1982
12 World's Fair Drive Franklin, NJ 1981
1 World's Fair Drive Franklin, NJ 1983
2 World's Faire Drive Franklin, NJ 1982
49 Napoleon Court Franklin, NJ 1982
50 Napoleon Court Franklin, NJ 1982
22 World's Fair Drive Franklin, NJ 1983
26 World's Fair Drive Franklin, NJ 1984
24 World's Fair Drive Franklin, NJ 1984
12 Wright Way Oakland, NJ 1981
NEW ORLEANS
520-524 Elmwood Park Blvd (j) Jefferson, LA 1986
125 Mallard St St. Rose, LA (h) 1984
107 Mallard St. Rose, LA (h) 1985
125 James Drive West St. Rose, LA (h) 1990
161 James Drive West St. Rose, LA 1986
150 James Drive East St. Rose, LA 1986
115 James Drive West St. Rose, LA (h) 1986
100 James Drive St. Rose, LA (h) 1980
143 Mallard St St. Rose, LA (h) 1982
160 James Drive East St. Rose, LA (h) 1981
190 James Drive East St. Rose, LA (h) 1987
120 Mallard St St. Rose, LA (h) 1981
110 James Drive West St. Rose, LA (h) 1983
150 Canvasback Drive St. Rose, LA 1986
PHOENIX
7340 South Kyrene Road Tempe, AZ 1996
7350 S Kyrene Road Tempe, AZ 1996
7360 South Kyrene Road Tempe, AZ 1996
7343 South Hardy Drive Tempe, AZ 1997
7333 South Hardy Drive Tempe, AZ 1997
SALT LAKE CITY
2255 South 300 West (m) Salt Lake City, UT 1980
512 Lawndale Drive (n) Salt Lake City, UT 1981
ST LOUIS
8921-8957 Frost Avenue Hazelwood, MO (c) 1971
9043-9083 Frost Avenue Hazelwood, MO (c) 1970
2121 Chapin Industrial Drive Vinita Park, MO 1969/87
1200 Andes Boulevard Olivette, MO 1967
1248 Andes Boulevard Olivette, MO 1967
1208-1226 Ambassador Blvd Olivette, MO 1966
1250 Ambassador Boulevard Olivette, MO 1967
1503-1525 Fairview Industrial Olivette, MO 1967
2462-2470 Schuetz Road St. Louis, MO 1965
10431-10449 Midwest Industrial Olivette, MO 1967
10751 Midwest Industrial Blvd Olivette, MO 1965
11652-11666 Fairgrove Industrial St. Louis, MO 1966
11674-11688 Fairgrove Industrial St. Louis, MO 1967
2337 Centerline Drive Maryland Heights, MO 1967
6951 North Hanley Road (j) Hazelwood, MO 1965
4560 Anglum Road Hazelwood, MO 1970
2760 South 1st Street St. Louis, MO 1997
TAMPA
6614 Adamo Drive Tampa, FL 1967
202 Kelsey Tampa, FL 1989
6202 Benjamin Road Tampa, FL 1981
6204 Benjamin Road Tampa, FL 1982
6206 Benjamin Road Tampa, FL 1983
6302 Benjamin Road Tampa, FL 1983
6304 Benjamin Road Tampa, FL 1984
6306 Benjamin Road Tampa, FL 1984
6308 Benjamin Road Tampa, FL 1984
5313 Johns Road Tampa, FL 1991
5602 Thompson Center Court Tampa, FL 1972
5411 Johns Road Tampa, FL 1997
5525 Johns Road Tampa, FL 1993
5607 Johns Road Tampa, FL 1991
</TABLE>
<TABLE>
<CAPTION>
LAND AREA OCCUPANCY AT
BUILDING ADDRESS BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ------------- ------- --- --------
<S> <C> <C> <C> <C>
NEW JERSEY (CON'T )
18 World's Fair Drive Light Industrial 1.12 12,809 100%
23 World's Fair Drive Light Industrial 1.20 15,540 100%
12 World's Fair Drive Light Industrial 3.85 65,000 100%
1 World's Fair Drive Light Industrial 3.85 53,372 100%
2 World's Faire Drive Light Industrial 2.06 59,310 75%
49 Napoleon Court Light Industrial 2.06 32,487 0%
50 Napoleon Court Light Industrial 1.52 20,158 100%
22 World's Fair Drive Light Industrial 3.52 50,000 90%
26 World's Fair Drive Light Industrial 3.41 47,000 100%
24 World's Fair Drive Light Industrial 3.45 47,000 100%
12 Wright Way Light Industrial 6.52 52,402 100%
---------- -----
SUBTOTAL OR AVERAGE 1,911,772 95%
---------- -----
NEW ORLEANS
520-524 Elmwood Park Blvd (j) Light Industrial 5.32 102,209 81%
125 Mallard St Light Industrial 1.38 23,436 33%
107 Mallard Light Industrial 1.48 23,436 94%
125 James Drive West Light Industrial 3.30 38,692 100%
161 James Drive West Light Industrial 2.80 47,474 93%
150 James Drive East Light Industrial 3.60 49,275 100%
115 James Drive West Light Industrial 2.07 21,408 100%
100 James Drive Light Industrial 6.66 48,000 100%
143 Mallard St Light Industrial 1.48 23,436 100%
160 James Drive East Light Industrial 3.66 25,772 23%
190 James Drive East Light Industrial 4.47 36,357 100%
120 Mallard St Light Industrial 3.41 53,440 100%
110 James Drive West Light Industrial 1.57 24,018 96%
150 Canvasback Drive Light Industrial 2.80 40,500 100%
--------- ------
SUBTOTAL OR AVERAGE 557,453 89%
--------- ------
PHOENIX
7340 South Kyrene Road Light Industrial 7.20 63,720 100%
7350 S Kyrene Road Light Industrial 5.36 99,384 100%
7360 South Kyrene Road Light Industrial 5.42 99,384 100%
7343 South Hardy Drive Light Industrial 7.84 174,854 100%
7333 South Hardy Drive Light Industrial 7.90 98,052 100%
--------- ------
SUBTOTAL OR AVERAGE 535,394 100%
--------- ------
SALT LAKE CITY
2255 South 300 West (m) Light Industrial 4.56 102,942 100%
512 Lawndale Drive (n) Light Industrial 35.00 395,291 85%
--------- ------
SUBTOTAL OR AVERAGE 498,233 88%
--------- ------
ST LOUIS
8921-8957 Frost Avenue Bulk Warehouse 2.00 100,000 100%
9043-9083 Frost Avenue Bulk Warehouse 2.69 145,000 100%
2121 Chapin Industrial Drive Light Industrial 23.40 280,905 100%
1200 Andes Boulevard Bulk Warehouse 2.77 66,600 100%
1248 Andes Boulevard Light Industrial 3.15 60,708 100%
1208-1226 Ambassador Blvd Bulk Warehouse 2.11 49,600 100%
1250 Ambassador Boulevard Bulk Warehouse 1.52 31,500 100%
1503-1525 Fairview Industrial Bulk Warehouse 2.18 46,431 89%
2462-2470 Schuetz Road Bulk Warehouse 2.28 43,868 100%
10431-10449 Midwest Industrial Bulk Warehouse 2.40 55,125 99%
10751 Midwest Industrial Blvd Light Industrial 1.70 44,100 100%
11652-11666 Fairgrove Industrial Bulk Warehouse 1.92 31,484 100%
11674-11688 Fairgrove Industrial Bulk Warehouse 1.53 31,500 100%
2337 Centerline Drive Bulk Warehouse 3.46 75,600 100%
6951 North Hanley Road (j) Bulk Warehouse 9.50 122,813 33%
4560 Anglum Road Light Industrial 2.60 35,114 98%
2760 South 1st Street Bulk Warehouse 11.00 178,800 100%
---------- -----
SUBTOTAL OR AVERAGE 1,399,148 94%
---------- ------
TAMPA
6614 Adamo Drive Bulk Warehouse 2.78 41,377 100%
202 Kelsey Bulk Warehouse 6.30 112,000 100%
6202 Benjamin Road Light Industrial 2.04 29,845 100%
6204 Benjamin Road Light Industrial 4.16 60,975 72%
6206 Benjamin Road Light Industrial 3.94 57,708 100%
6302 Benjamin Road Light Industrial 2.03 29,747 100%
6304 Benjamin Road Light Industrial 2.04 29,845 100%
6306 Benjamin Road Light Industrial 2.58 37,861 99%
6308 Benjamin Road Light Industrial 3.22 47,256 80%
5313 Johns Road Light Industrial 1.36 25,690 100%
5602 Thompson Center Court Light Industrial 1.39 14,914 100%
5411 Johns Road Light Industrial 1.98 30,204 100%
5525 Johns Road Light Industrial 1.46 24,139 100%
5607 Johns Road Light Industrial 1.34 13,500 50%
</TABLE>
19
<PAGE> 21
<TABLE>
<CAPTION>
LOCATION YEAR BUILT- LAND AREA OCCUPANCY AT
BUILDING ADDRESS CITY/STATE ENCUMBRANCES RENOVATED BUILDING TYPE (ACRES) GLA 12/31/97
---------------- ---------- ------------ ---------- ------------- --------- --- ------------
TAMPA (CON'T.)
- --------------
<S> <C> <C> <C> <C> <C> <C>
5709 Johns Road Tampa, FL 1990 Light Industrial 1.80 25,480 100%
5711 Johns Road Tampa, FL 1990 Light Industrial 1.80 25,455 100%
4410 East Adamo Drive Tampa, FL 1990 Light Industrial 5.60 101,744 100%
4420 East Adamo Drive Tampa, FL 1990 Light Industrial 1.40 26,650 100%
4430 East Adamo Drive Tampa, FL 1987 Light Industrial 3.75 64,551 79%
4440 East Adamo Drive Tampa, FL 1988 Light Industrial 3.75 64,800 100%
4450 East Adamo Drive Tampa, FL 1969 Light Industrial 4.00 46,462 48%
5453 West Waters Avenue Tampa, FL 1987 Light Industrial 0.66 7,200 63%
5455 West Waters Avenue Tampa, FL 1987 Light Industrial 2.97 32,424 100%
5553 West Waters Avenue Tampa, FL 1987 Light Industrial 2.97 32,424 100%
5501 West Waters Avenue Tampa, FL 1990 Light Industrial 1.53 15,870 100%
5503 West Waters Avenue Tampa, FL 1990 Light Industrial 0.68 7,060 100%
5555 West Waters Avenue Tampa, FL 1990 Light Industrial 2.31 23,947 100%
5557 West Waters Avenue Tampa, FL 1990 Light Industrial 0.57 5,860 100%
5903 Johns Road Tampa, FL 1987 Light Industrial 1.20 11,600 100%
4107 North Himes Avenue Tampa, FL 1990 Light Industrial 1.86 26,630 92%
---------- -----
SUBTOTAL OR AVERAGE 1,073,218 93%
---------- -----
OTHER
- -----
2800 Airport Road (l) Denton, TX 1965 Light Industrial 29.91 222,403 100%
3501 Maple Street Abilene, TX 1980 Bulk Warehouse 34.42 123,700 100%
4200 West Harry
Street (k) Wichita, KS (a) 1972 Bulk Warehouse 21.45 177,655 100%
Industrial Park No. 2 West Lebanon, NH 1968 Light Industrial 10.27 156,200 100%
931 Discovery Road Green Bay, WI 1997 Light Industrial 4.22 25,254 100%
11200 Industriplex
Boulevard Baton Rouge, LA 1986 Light Industrial 3.00 42,355 100%
11441 Industriplex
Boulevard Baton Rouge, LA 1987 Light Industrial 2.40 35,596 77%
11301 Industriplex
Boulevard Baton Rouge, LA 1985 Light Industrial 2.50 38,396 100%
6565 Exchequer Drive Baton Rouge, LA 1986 Bulk Warehouse 5.30 108,800 100%
2675 Valley View Drive Shreveport, LA 1997 Bulk Warehouse 12.00 250,000 100%
300 10th Street NW Clarion, IA 1997 Bulk Warehouse 8.63 126,900 100%
9580 Interport Drive Shreveport, LA 1989 Bulk Warehouse 3.00 50,000 100%
---------- -----
SUBTOTAL OR AVERAGE 1,357,259 99%
---------- -----
TOTAL 56,567,706 96%
========== =====
</TABLE>
(a) These properties collateralize the 1994 Defeased Mortgage Loan
(hereinafter defined). On January 2, 1998, the 1994 Defeased Mortgage
Loan was paid off and retired and the remaining 15 properties were
released.
(b) These properties are owned by the Securities Partnership. The
Securities Partnership guarantees the payment on the Series A
Cumulative Preferred Stock of dividends and amounts upon redemption,
liquidation, dissolution or winding-up.
(c) These properties collateralize the 1995 Mortgage Loan (hereinafter
defined).
(d) These properties collateralize the CIGNA Loan (hereinafter defined).
(e) These properties collateralize the Assumed Loans (hereinafter
defined).
(f) This property collateralizes the LB Mortgage Loan II (hereinafter
defined).
(g) This property collateralizes the Acquisition Mortgage Loan I
(hereinafter defined).
(h) These properties collateralize the Acquisition Mortgage Loan II
(hereinafter defined).
(i) These properties collateralize the Acquisition Mortgage Loan III
(hereinafter defined).
(j) Comprised of two properties.
(k) Comprised of three properties.
(l) Comprised of five properties.
(m) Comprised of seven properties.
(n) Comprised of 29 properties.
20
<PAGE> 22
TENANT AND LEASE INFORMATION
The Company has a diverse base of more than 2,500 tenants engaged in a
wide variety of businesses including manufacturing, retail, wholesale trade,
distribution and professional services. Most leases have an initial term of
between three and five years and provide for periodic rental increases that are
either fixed or based on changes in the Consumer Price Index. Industrial tenants
typically have net or semi-net leases and pay as additional rent their
percentage of the property's operating costs, including the costs of common area
maintenance, property taxes and insurance. As of December 31, 1997,
approximately 96% of the GLA of the properties was leased, and no single tenant
or group of related tenants accounted for more than 1.1% of the Company's rent
revenues, nor did any single tenant or group of related tenants occupy more than
1.8%, of the Company's total GLA as of December 31, 1997.
The following table shows scheduled lease expirations for all leases
for the Company's properties as of December 31, 1997.
<TABLE>
<CAPTION>
ANNUAL BASE RENT
NUMBER OF PERCENTAGE OF UNDER EXPIRING PERCENTAGE OF TOTAL
YEAR OF LEASES GLA GLA LEASES ANNUAL BASE RENT
EXPIRATION (1) EXPIRING EXPIRING (2) EXPIRING (IN THOUSANDS) EXPIRING (2)
-------------- ------------ --------------- ---------------- -------------------- ---------------------
<S> <C> <C> <C> <C> <C>
1998 771 10,468,035 19.4% $ 46,468 19.8%
1999 583 10,304,946 19.1% 44,971 19.3%
2000 533 9,110,048 16.9% 40,048 17.2%
2001 295 7,325,683 13.6% 30,479 13.1%
2002 253 5,745,269 10.6% 25,181 10.8%
2003 78 2,836,997 5.2% 12,365 5.3%
2004 41 2,401,969 4.4% 9,156 3.9%
2005 26 1,539,413 2.8% 7,417 3.2%
2006 19 707,094 1.3% 3,585 1.5%
2007 19 1,623,218 3.0% 5,288 2.3%
Thereafter 17 2,023,561 3.7% 8,372 3.6%
------------ --------------- ---------------- -------------------- ---------------------
Total 2,635 54,086,233 100.0% $ 233,332 100.0%
============ =============== ================ ==================== =====================
</TABLE>
- ---------------
(1) Lease expirations as of December 31, 1997 assume tenants do not exercise
existing renewal, termination, or purchase options.
(2) Does not include existing vacancies of 2,481,473 aggregate square feet.
MORTGAGE LOANS/PREFERRED STOCK GUARANTEE
Contemporaneously with the consummation of the Initial Offering, the
Company, through the Financing Partnership, entered into a $300.0 million
mortgage loan. On April 4, 1997, the Company purchased U.S. Government
securities as substitute collateral to execute a legal defeasance of the $300.0
million mortgage loan (the "1994 Defeased Mortgage Loan"). Upon execution of the
legal defeasance, 180 of the 195 properties collateralizing the 1994 Defeased
Mortgage Loan were released, leaving 15 properties and the U.S. Government
securities as collateral. On January 2, 1998, the Company used the gross
proceeds from the maturity of the U.S. Government securities to pay off and
retire the 1994 Defeased Mortgage Loan. Due to the retirement of the 1994
Defeased Mortgage Loan, the remaining collateral of 15 properties was released
on January 2, 1998.
In 1995, the Company issued 1,650,000 shares of 9.5%, $.01 par value,
Series A Cumulative Preferred Stock (the "Series A Preferred Stock") at an
initial offering price of $25 per share. The Series A Preferred Stock is not
redeemable prior to November 17, 2000. On or after November 17, 2000, the Series
A Preferred Stock is redeemable for cash at the option of the Company, in whole
or in part, at $25 per share, or $41.3 million in the aggregate, plus dividends
accrued and unpaid to the redemption date. The Series A Preferred Stock has no
stated maturity and is not convertible into any other securities of the Company.
The payment of dividends on, and payments on liquidation or redemption
of, the Series A Preferred Stock is guaranteed by the Securities Partnership
("the Guarantor") which holds 19 properties pursuant to a Guarantee and Payment
Agreement (the "Guarantee Agreement"). The Series A Preferred Stock is the only
class of securities of the Company which has the benefit of such guarantee. To
the extent the Company fails to make any payment of dividends or pay any portion
of the liquidation preference on or the redemption price of any shares of Series
A
21
<PAGE> 23
Preferred Stock, the Guarantor will be obligated to pay an amount to each holder
of Series A Preferred Stock equal to any such shortfall.
On December 29, 1995, the Company, through the Mortgage Partnership,
entered into a $40.2 million mortgage loan (the "1995 Mortgage Loan"). In the
first quarter of 1996, the Company, through the Mortgage Partnership, made a
one-time paydown of $.2 million on the 1995 Mortgage Loan which decreased the
outstanding balance to $40.0 million. The 1995 Mortgage Loan matures on January
11, 2026. The 1995 Mortgage Loan is collateralized by first mortgage liens on 23
properties owned by the Mortgage Partnership. The 1995 Mortgage Loan may be
prepaid only after January 11, 2003.
On March 20, 1996, the Company, through the Operating Partnership and
the Indianapolis Partnership, entered into a $36.8 million mortgage loan (the
"CIGNA Loan") that is collateralized by first mortgage liens on seven properties
in Indianapolis, Indiana and three properties in Cincinnati, Ohio. The CIGNA
Loan matures on April 1, 2003. The CIGNA Loan may be prepaid only after April
30, 1999 in exchange for the greater of a 1% prepayment fee or a yield
maintenance premium.
On March 20, 1996, the Company, through the Operating Partnership,
assumed a $6.4 million mortgage loan and a $3.0 million mortgage loan (together,
the "Assumed Loans") that are collateralized by 13 properties in Indianapolis,
Indiana and one property in Indianapolis, Indiana, respectively. The Assumed
Loans mature on January 1, 2013. The Assumed Loans may be prepaid only after
December 22, 1999 in exchange for the greater of a 1% prepayment fee or a yield
maintenance premium.
On January 31, 1997, the Company, through the Operating Partnership,
assumed a mortgage loan in the amount of $.7 million (the "LB Mortgage Loan
II"), which is collateralized by a property located in Long Island, New York.
The LB Mortgage Loan II matures 180 days after the completion of a contingent
event relating to the environmental status of the property collaterizing the
loan.
On October 23, 1997, the Company, through the Operating Partnership,
assumed a $4.2 million mortgage loan (the "Acquisition Mortgage Loan I") which
is collateralized by a property in Bensenville, Illinois. The Acquisition
Mortgage Loan I matures on August 1, 2008. The Acquisition Mortgage Loan I may
be prepaid after July 15, 1998 in exchange for a prepayment fee.
On December 9, 1997, the Company, through the Operating Partnership,
assumed a $8.0 million mortgage loan (the "Acquisition Mortgage Loan II") that
is collateralized by ten properties in St. Charles, Louisiana. The Acquisition
Mortgage Loan II matures on April 1, 2006. The Acquisition Mortgage Loan II may
be prepaid only after April 9, 1999 in exchange for the greater of a 1%
prepayment fee or a yield maintenance premium.
On December 23, 1997, the Company, through the Operating Partnership,
assumed a $3.6 million mortgage loan (the "Acquisition Mortgage Loan III") that
is collateralized by two properties in Houston, Texas. The Acquisition Mortgage
Loan III matures on June 1, 2003. The Acquisition Mortgage Loan III may be
prepaid only after June 30, 1998 in exchange for the greater of a 2% prepayment
fee or a yield maintenance premium.
PROPERTY MANAGEMENT
At December 31, 1997, Company employees managed 755 of the Company's
769 properties and 14 properties were managed at the local level by parties
other than the Company, with oversight by the Company's Senior Regional
Directors. In each of these cases, the Company retains control over all leasing,
capital investment decisions, rent collection, accounting and most operational
decisions, allowing its local third-party managers limited operational
authority.
22
<PAGE> 24
ITEM 3 LEGAL PROCEEDINGS
The Company is involved in legal proceedings arising in the ordinary
course of business All such proceedings, taken together, are not expected to
have a material impact on the Company.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5 MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
MARKET INFORMATION
The following table sets forth for the periods indicated the high and
low closing prices per share and distributions declared per share for the
Company's common stock which trades on the New York Stock Exchange under the
trading symbol "FR".
<TABLE>
<CAPTION>
DISTRIBUTION
QUARTER ENDED HIGH LOW DECLARED
------------- ---- --- --------
<S> <C> <C> <C>
December 31, 1997 $ 37 3/8 $ 32 1/8 $.5300
September 30, 1997 34 28 1/2 .5050
June 30, 1997 31 1/8 29 1/4 .5050
March 31, 1997 32 3/8 29 .5050
December 31, 1996 30 7/8 24 7/8 .5050
September 30, 1996 26 22 1/2 .4875
June 30, 1996 24 5/8 21 3/4 .4875
March 31, 1996 25 21 3/8 .4875
</TABLE>
The Company had 307 common stockholders of record as of March 16, 1998.
The Company has determined that, for federal income tax purposes,
approximately 62.3% of the total $2.045 in distributions per share paid with
respect to 1997 represents ordinary dividend income to its stockholders,
approximately 2.1% represents 28% long-term capital gain and the remaining 35.6%
represents a return of capital. In order to maintain its status as a REIT, the
Company is required to meet certain tests, including distributing at least
95% of its REIT taxable income, or approximately $1.54 per share for 1997.
ITEM 6 SELECTED FINANCIAL DATA
The following sets forth selected financial and operating data for the
Company on a pro forma and historical consolidated basis and the Contributing
Businesses on a historical combined basis. The following data should be read in
conjunction with the financial statements and notes thereto and Management's
Discussion and Analysis of Financial Condition and Results of Operations
included elsewhere in this Form 10-K. The pro forma statement of operations for
the year ended December 31, 1994 includes the historical results of the
Company's operations from July 1, 1994 to December 31, 1994 and the operations
of the Contributing Businesses for the period of January 1, 1994 to June 30,
1994 and were prepared as if the Initial Offering and the related transactions
had occurred on January 1, 1994. The historical statements of operations for the
years ended December 31, 1997, 1996 and 1995 and the six months ended December
31, 1994 include the results of operations of the Company as derived from the
Company's audited financial statements. The historical balance sheet data and
other data as of December 31, 1997, 1996, 1995 and 1994 include the balances of
the Company. The historical balance sheet data as of June 30, 1994 and December
31, 1993 and the combined statements of operations for the six months ended
June 30, 1994 and the year ended December 31, 1993 have been derived from the
historical financial statements of the Contributing Businesses. In the opinion
of management, financial data as of and for the periods ended June 30, 1994 and
December 31, 1993 include all adjustments necessary to present fairly the
information set forth therein.
23
<PAGE> 25
<TABLE>
<CAPTION>
THE COMPANY CONTRIBUTING BUSINESSES
================================================================== =======================
HISTORICAL
------------------------
HISTORICAL HISTORICAL HISTORICAL PRO FORMA HISTORICAL SIX
YEAR YEAR YEAR YEAR SIX MONTHS MONTHS YEAR
ENDED ENDED ENDED ENDED ENDED ENDED ENDED
---------- ---------- ---------- --------- ---------- ------ -----
12/31/97 12/31/96 12/31/95 12/31/94 12/31/94 6/30/94 12/31/93
(IN THOUSANDS, EXCEPT PER SHARE, RATIO AND PROPERTY DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Total Revenues ................ $ 223,203 $ 140,055 $ 106,486 $ 87,923 $ 46,570 $ 22,816 $ 33,237
Property Expenses ............. 59,762 39,224 28,302 22,714 11,853 6,036 8,832
General & Administrative
Expense ..................... 6,248 4,018 3,135 2,310 1,097 795 1,416
Interest Expense .............. 49,859 28,954 28,591 19,528 10,588 11,773 18,187
Amortization of Interest Rate
Protection Agreements and
Deferred Financing Cost ..... 2,812 3,286 4,438 6,113 2,904 858 997
Depreciation & Other
Amortization ................ 39,573 28,049 22,264 19,189 9,802 4,744 7,105
Gain (Loss) from Disposition
of Interest Rate
Protection Agreements (a) ... 1,430 -- (6,410) -- -- -- --
Management and Construction
Income (Loss), Net .......... -- -- -- -- -- (81) (99)
Gain on Sales of Properties ... 5,003 4,344 -- -- -- -- --
Minority Interest ............. 5,312 2,931 997 1,405 778 -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (Loss) Before
Extraordinary Items ......... 66,070 37,937 12,349 16,664 9,548 (1,471) (3,399)
Extraordinary Loss (b) ........ 14,124 2,273 -- -- -- 1,449 --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net Income (Loss) ............. $ 51,946 $ 35,664 $ 12,349 $ 16,664 $ 9,548 $ (2,920) $ (3,399)
========== ==========
Preferred Stock Dividends ..... (11,856) (3,919) (468) -- --
---------- ---------- ---------- ---------- ----------
Net Income Available to Common
Stockholders ................ $ 40,090 $ 31,745 $ 11,881 $ 16,664 $ 9,548
========== ========== ========== ========== ==========
Net Income Available to Common
Stockholders Before
Extraordinary Loss Per Share
(Basic) ..................... $ 1.72 $ 1.37 $ .63 $ .92 $ .51
========== ========== ========== ========== ==========
Net Income Available to Common
Stockholders Before
Extraordinary Loss Per Share
(Diluted) ................... $ 1.70 $ 1.37 $ .63 $ .92 $ .51
========== ========== ========== ========== ==========
Net Income Available to Common
Stockholders Per Share
(Basic) ..................... $ 1.27 $ 1.28 $ .63 $ .92 $ .51
========== ========== ========== ========== ==========
Net Income Available to
Common Stockholders Per Share
(Diluted) ..................... $ 1.26 $ 1.28 $ .63 $ .92 $ .51
========== ========== ========== ========== ==========
Distributions Per Share ....... $ 2.045 $ 1.9675 $ 1.905 $ .945
========== ========== ========== ==========
Weighted Average Number of
Common Shares Outstanding
(Basic) ....................... 31,508 24,756 18,889 18,182 18,881
========== ========== ========== ========== ==========
Weighted Average Number of
Common Shares Outstanding-
(Diluted) ................... 31,814 24,842 18,889 18,182 18,881
========== ========== ========== ========== ==========
BALANCE SHEET DATA (END OF
PERIOD):
Real Estate, Before
Accumulated
Depreciation................... $1,994,346 $1,050,779 $ 757,516 $ 669,608 597,504 $ 209,177
Real Estate, After Accumulated
Depreciation ................ 1,873,316 959,322 688,767 620,294 556,902 171,162
Total Assets .................. 2,272,163 1,022,600 753,904 691,081 616,767 189,789
Mortgage Loans, Acquisition
Facilities Payable, Senior
Unsecured Debt, Construction
Loans and Promissory Notes
Payable ..................... 879,592 406,401 399,958 348,700 305,000 179,568
Mortgage Loans ................ -- -- -- -- -- 7,624
(affiliated)
Defeased Mortgage Loan Payable 300,000 -- -- -- -- --
Total Liabilities ............. 1,266,079 447,178 426,972 374,849 323,703 227,553
Stockholders' Equity/ (Net
Deficit) .................... 854,590 532,561 306,023 292,420 269,326 (37,764)
OTHER DATA:
Cash Flows From Operating
Activities .................. $ 102,635 62,621 38,541 18,033 5,026 8,700
Cash Flows From Investing
Activities .................. (805,505) (240,571) (84,159) (73,840) (374,757) (17,124)
Cash Flows From Financing
Activities .................. 708,446 176,677 45,420 57,475 374,152 9,093
Funds From Operations ("FFO")
(c) ......................... 92,361 60,546 41,428 20,128 3,273 3,706
Ratio of Earnings to Fixed
Charges and Preferred Stock
Dividends (d) ............... 1.79 x 1.88 x 1.56 x 1.76 x -- (e) -- (e)
Total Properties (f) .......... 769 379 271 246 226 124
Total GLA in sq. ft (f) ....... 56,567,706 32,700,069 22,562,755 19,169,321 17,393,813 6,376,349
Occupancy % f) ................ 96% 97% 97% 97% 97% 94%
====================================================================================================================
</TABLE>
24
<PAGE> 26
(a) Gain (loss) from disposition of Interest Rate Protection Agreements.
(b) Upon consummation of the Initial Offering in June 1994, certain
Contributing Businesses' loans were repaid and the related unamortized
deferred financing fees totaling $1.5 million were written off. In 1996,
the Company terminated certain revolving credit facilities. The Company
recorded an extraordinary loss of $2.3 million which is comprised of a
prepayment fee, the write-off of unamortized deferred financing fees, legal
costs and other expenses. In 1997, the Company terminated certain mortgage
loans, an unsecured loan and a revolving credit facility and obtained a
commitment to pay off and retire another mortgage loan. The Company
recorded an extraordinary loss of $14.1 million which is comprised of
prepayment fees, the write-off of unamortized deferred financing fees,
legal costs and other expenses.
(c) Management considers funds from operations to be one financial measure of
the operating performance of an equity REIT that provides a relevant basis
for comparison among REITs and it is presented to assist investors in
analyzing the performance of the Company. In accordance with the National
Association of Real Estate Investment Trusts' definition of funds from
operations, the Company calculates funds from operations to be equal to
net income, excluding gains (or losses) from debt restructuring and sales
of property, plus depreciation and amortization, excluding amortization of
deferred financing costs and interest rate protection agreements, and
after adjustments for unconsolidated partnerships and joint ventures.
Funds from operations does not represent cash generated from operating
activities in accordance with generally accepted accounting principles and
is not necessarily indicative of cash available to fund cash needs,
including the payment of dividends and distributions. Funds from
operations should not be considered as a substitute for net income as a
measure of results of operations or for cash flow from operating
activities calculated in accordance with generally accepted accounting
principles as a measure of liquidity. Funds from operations as calculated
by the Company may not be comparable to similarly titled but differently
calculated measures of other REITs. The following is a reconciliation of
net income to funds from operations:
<TABLE>
<CAPTION>
The Company Contributing Businesses
--------------------------------------------------------- ---------------------------
Six Months Six Months
Year Ended Year Ended Year Ended Ended Ended Year Ended
12/31/97 12/31/96 12/31/95 12/31/94 6/30/94 12/31/93
----------- ---------- ---------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
Net Income (Loss)
Available to Common
Stockholders............ $ 40,090 31,745 11,881 9,548 (2,920) (3,399)
Adjustments:
Depreciation and Other
Amortization............ 39,268 27,941 22,140 9,802 4,744 7,105
Disposition of Interest
Rate Protection
Agreement............... (1,430) -- 6,410 -- -- --
Gain on Sales of
Properties............ (5,003) (4,344) -- -- -- --
Extraordinary Items..... 14,124 2,273 -- -- 1,449 --
Minority Interest....... 5,312 2,931 997 778 -- --
--------- --------- --------- --------- --------- ---------
Funds From Operations..... $ 92,361 $ 60,546 $ 41,428 $ 20,128 $ 3,273 $ 3,706
========= ========= ========= ========= ========= =========
</TABLE>
(d) For purposes of computing the ratios of earnings to fixed charges and
preferred stock dividends, earnings have been calculated by adding fixed
charges (excluding capitalized interest) to income (loss) before
disposition of interest rate protection agreement, gain on sales of
properties, minority interest and extraordinary items. Fixed charges
consist of interest costs, whether expensed or capitalized, and
amortization of interest rate protection agreement(s) and deferred
financing costs.
(e) Earnings were inadequate to cover fixed charges by approximately $1.4
million and $3.4 million for the six months ended June 30, 1994 and the
year ended December 31, 1993 respectively, which periods were prior to
the Company's initial public offering.
(f) As of end of period and excludes properties under development.
25
<PAGE> 27
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion should be read in conjunction with "Selected
Financial and Operating Data" and the historical Consolidated and Combined
Financial Statements and Notes thereto appearing elsewhere in this Form 10-K.
RESULTS OF OPERATIONS
COMPARISON OF YEAR ENDED DECEMBER 31, 1997 TO YEAR ENDED DECEMBER 31, 1996
At December 31, 1997, the Company owned 769 in-service properties
containing approximately 56.6 million square feet of GLA, compared to 379
in-service properties with approximately 32.7 million square feet of GLA at
December 31, 1996. During 1997, the Company acquired 389 properties containing
approximately 22.9 million square feet of GLA, completed development of ten
properties and expansions of two properties totaling 1.7 million square feet of
GLA and sold ten in-service properties totaling .8 million square feet of GLA,
one property held for redevelopment and several land parcels.
Rental income and tenant recoveries and other income increased in 1997
over 1996 by $70.4 million or 50.2% due primarily to the properties acquired
after December 31, 1995. Revenues from properties owned prior to January 1, 1996
increased in 1997 over 1996 by $2.1 million or 2.0% due primarily to increased
rental rates upon renewal or replacement of tenant leases. Interest
income-defeasance in 1997 represents interest income earned on U.S. Government
securities and cash proceeds from such securities upon maturity that were
pledged as collateral to legally defease the 1994 Defeased Mortgage Loan.
Property expenses, which include real estate taxes, repairs and
maintenance, property management, utilities, insurance and other expenses,
increased in 1997 over 1996 by $20.5 million or 52.4% due primarily to
properties acquired after December 31, 1995. For properties owned prior to
January 1, 1996, property expenses remained relatively unchanged.
General and administrative expense increased in 1997 over 1996 by $2.2
million due primarily to the additional expenses associated with managing the
Company's growing operations including additional professional fees relating to
additional properties owned and personnel to manage and expand the Company's
business.
Interest expense increased by $20.9 million for the year ended December
31, 1997 compared to the year ended December 31, 1996 due primarily to a higher
average debt balance to fund the purchase of U.S. Government securities to
legally defease the 1994 Defeased Mortgage Loan and to fund the acquisition and
development of additional properties.
Depreciation and other amortization increased in 1997 over 1996 by
$11.5 million due primarily to the additional depreciation and amortization
related to the properties acquired and placed in service after December 31,
1995.
The $1.4 million gain on the disposition of interest rate protection
agreements represents the sale of the Company's interest rate protection
agreements in April 1997. The Company entered into a new interest rate
protection agreement at a cost of approximately $.2 million with a notional
value of $300 million which expired at the end of 1997.
The $5.0 million gain on sales of properties resulted from the sale of
ten in-service properties, one property under redevelopment and several parcels
of land. Gross proceeds for these property sales totaled approximately $33.7
million.
The $14.1 million extraordinary loss in 1997 represents the write-off
of unamortized deferred financing costs, prepayment fees, legal fees and other
costs incurred to terminate various mortgage loans, an unsecured loan and a
revolving line of credit and the commitment to retire the 1994 Defeased Mortgage
Loan.
COMPARISON OF YEAR ENDED DECEMBER 31, 1996 TO YEAR ENDED DECEMBER 31, 1995
At December 31, 1996, the Company owned 379 in-service properties
containing approximately 32.7 million square feet of GLA, compared to 271
in-service properties with approximately 22.6 million square feet of GLA at
December 31, 1995. During 1996, the Company acquired 112 properties containing
approximately 10.4 million square
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feet of GLA, completed development of two properties totaling .2 million square
feet of GLA and sold six properties totaling .4 million square feet of GLA.
Rental income and tenant recoveries and other income increased in 1996
over 1995 by $33.6 million or 31.5% due primarily to the properties acquired
after December 31, 1994. Revenues from properties owned prior to January 1, 1995
increased in 1996 over 1995 by $3.2 million or 3.3% due primarily to increased
rental rates upon renewal or replacement of tenant leases and additional amounts
charged to tenants for additional property expenses incurred in 1996.
Property expenses, which include real estate taxes, repairs and
maintenance, property management, utilities, insurance and other expenses,
increased in 1996 over 1995 by $10.9 million or 38.6% due primarily to
properties acquired after December 31, 1994. For properties owned prior to
January 1, 1995, property expenses increased in 1996 over 1995 by $1.2 million
or 4.8% due to additional snow removal expenses incurred in the Minneapolis and
Harrisburg metropolitan areas, additional repair and maintenance expenses
incurred in the Chicago metropolitan area and increased real estate taxes in the
majority of the Company's geographical markets.
General and administrative expense increased in 1996 over 1995 by $.9
million due primarily to the additional expenses associated with managing the
Company's growing operations, including additional professional fees relating to
additional properties owned and personnel to manage and expand the Company's
business.
Interest expense increased by $.4 million for the year ended December
31, 1996 compared to the year ended December 31, 1995 due primarily to a higher
average outstanding debt balance to fund the acquisition of additional
properties, however, the resulting impact on interest expense was partially
offset by lower interest rates in 1996 on the Company's $150 million secured
revolving line of credit.
Depreciation and amortization increased in 1996 over 1995 by $5.8
million due primarily to the additional depreciation and amortization related to
the properties acquired after December 31, 1994.
The $6.4 million loss from disposition of interest rate protection
agreement in 1995 resulted from the replacement of the Company's interest rate
protection agreement entered into in connection with the 1994 Mortgage Loan with
new interest rate protection agreements. Approximately $6.3 million of the loss
is a non-cash loss, representing the difference between the unamortized cost of
the replaced interest rate protection agreement and the cost of the new interest
rate agreements.
The $4.3 million gain on sales of properties in 1996 resulted from the
sale of six properties. Gross proceeds for these property sales totaled
approximately $15.0 million.
The $2.3 million extraordinary loss in 1996 represents the write-off of
unamortized deferred financing costs, a prepayment fee, legal fees and other
costs that were incurred to terminate various mortgage loans and various
revolving lines of credit.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1997, the Company's unrestricted cash and cash
equivalents totaled $13.2 million and restricted cash totaled $313.1 million.
Included in restricted cash are $3.9 million of cash reserves required to be set
aside under the 1995 Mortgage Loan for payments of security deposit refunds,
tenant improvements, capital expenditures, interest, real estate taxes and
insurance. The portion of cash reserves relating to security deposit refunds is
adjusted as tenants turn over. The portion of cash reserves relating to payments
for tenant improvements, capital expenditures, interest, real estate taxes and
insurance is established monthly, distributed to the Company as such
expenditures are made and is replenished to a level adequate to make the next
periodic payment of such expenditures. Also included in restricted cash are
$306.0 million of reserves that were used to defease the Company's $300.0
million mortgage loan (the "1994 Defeased Mortgage Loan"). On January 2, 1998,
$306.0 million of this cash reserve was used to pay off and retire the 1994
Defeased Mortgage Loan and to fund a $6.0 million prepayment fee. The remaining
$3.2 million of reserves was returned to the Company in January 1998.
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Net cash provided by operating activities was $102.6 million for the
year ended December 31, 1997 compared to $62.6 million for the year ended
December 31, 1996 and $38.5 million for the year ended December 31, 1995. The
increases are primarily due to increased net operating income (which is defined
as total revenues less property related expenses) as discussed in the "Results
of Operations" above.
Net cash used in investing activities was $805.5 million for the year
ended December 31, 1997 compared to $240.6 million for the year ended December
31, 1996 and $84.2 million for the year ended December 31, 1995. The majority of
the cash used in investing activities was for the acquisition of new properties
offset by proceeds from the sales of real estate.
Net cash provided by financing activities for the year ended December
31, 1997 increased to $708.5 million from $176.7 million for the year ended
December 31, 1996, reflecting the issuance of 6.0 million shares of common
stock, 6.0 million depositary shares representing .06 million shares of
preferred stock and $650.0 million of senior unsecured debt offset, in part, by
increased distributions to the common stockholders and First Industrial L.P.
unitholders (the "Unitholders") and dividends to the preferred stockholders due
to the issuance of additional preferred stock. Net cash provided by financing
activities for the year ended December 31, 1996 was $176.7 million, compared to
$45.4 million for the year ended December 31, 1995, reflecting the issuance of
10.9 million shares of common stock offset in part by increased distributions to
the common stockholders and Unitholders, dividends to the preferred stockholders
and a net pay down on the Company's $150.0 million revolving line of credit.
Funds from operations increased by $31.8 million or 52.6% in 1997
compared to 1996 and increased by $19.1 million or 46.2% in 1996 compared to
1995 as a result of the factors discussed in the analysis of operating results
above. Management considers funds from operations to be one financial measure of
the operating performance of an equity REIT that provides a relevant basis for
comparison among REITs and it is presented to assist investors in analyzing the
performance of the Company. In accordance with the National Association of Real
Estate Investment Trusts' definition of funds from operations, the Company
calculates funds from operations to be equal to net income, excluding gains (or
losses) from debt restructuring and sales of property, plus depreciation and
amortization, excluding amortization of deferred financing costs and interest
rate protection agreements, and after adjustments for unconsolidated
partnerships and joint ventures. Funds from operations does not represent cash
generated from operating activities in accordance with generally accepted
accounting principles and is not necessarily indicative of cash available to
fund cash needs, including the payment of dividends and distributions. Funds
from operations should not be considered as a substitute for net income as a
measure of results of operations or for cash flow from operating activities
(calculated in accordance with generally accepted accounting principles) as a
measure of liquidity. Funds from operations as calculated by the Company may not
be comparable to similarly titled but differently calculated measures of other
REITs.
The ratio of earnings to fixed charges and preferred stock dividends
was 1.79 for the year ended December 31, 1997 compared to 1.88 for the year
ended December 31, 1996 and 1.56 for the year ended December 31, 1995. The
decrease in the earnings to fixed charges and preferred stock dividends between
fiscal years 1997 and 1996 is primarily due to additional interest expense and
preferred stock dividends incurred in fiscal year 1997 from additional debt and
preferred stock issued to fund property acquisitions and to legally defease the
1994 Mortgage Loan, which is partially offset by higher net operating income
from the property acquisitions as discussed in "Results of Operations" above.
The increase in the earnings to fixed charges and preferred stock dividends
between fiscal year 1996 and 1995 is primarily due to increased net operating
income as discussed in "Results of Operations" above.
In 1997, the Company acquired 389 industrial properties comprising
approximately 22.9 million square feet of GLA for a total purchase price of
approximately $862.4 million, completed the development of ten properties and
expansions of two properties comprising approximately 1.7 million square feet of
GLA at a cost of approximately $50.2 million and sold ten in-service properties
comprising approximately .8 million square feet of GLA, one property held for
redevelopment and several land parcels for gross proceeds of $33.7 million.
The Company has committed to the construction of 12 industrial
properties with an estimated completion GLA of approximately 2.5 million square
feet. The estimated total construction costs are approximately $90.4 million.
These developments are expected to be funded with cash flow from operations, as
well as borrowings under the 1997 Unsecured Acquisition Facility.
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In 1997, the Company and the Operating Partnership paid a quarterly
distribution of $.505 per share/Unit related to each of the first, second and
third quarters. In addition, the Company and Operating Partnership paid a fourth
quarter 1997 distribution of $.53 per share/Unit on January 20, 1998. The total
distributions paid to the Company's stockholders and the Operating Partnership's
limited partners related to 1997 totaled $73.8 million.
In 1997, the Company paid a quarterly preferred dividend of $.59375 per
share on its Series A Cumulative Preferred Stock related to each of the first,
second, third and fourth quarters. The total preferred dividends paid to the
Company's Series A Cumulative Preferred Stock stockholders related to 1997
totaled $3.9 million.
In 1997, the Company paid a period prorated preferred dividend of
$27.95 per share (equivalent to $.2795 per Depositary Share) on its Series B
Cumulative Preferred Stock related to the second quarter and a $54.688 per share
(equivalent to $.54688 per Depositary Share) for each of the third and fourth
quarters. The total preferred dividends paid to the Company's Series B
Cumulative Preferred Stock stockholders related to 1997 totaled $5.5 million.
In 1997, the Company paid a period prorated preferred dividend of
$68.123 per share (equivalent to $.68123 per Depositary Share) on its Series C
Cumulative Preferred Stock related to each of the second and third quarters and
$53.906 per share (equivalent to $.53906 per Depositary Share) for the fourth
quarter. The total preferred dividends paid to the Company's Series C Cumulative
Preferred Stock stockholders related to 1997 totaled $2.4 million.
In conjunction with an acquisition of a portfolio of properties on
January 31, 1997, the Company, through the Operating Partnership, assumed two
mortgage loans in the amount of $3.8 million (the "LB Mortgage Loan I") and $.7
million (the "LB Mortgage Loan II"). The LB Mortgage Loan I, which was
collateralized by a property located in Long Island, New York and provided for
interest only payments prior to its maturity date of July 11, 1998, was paid off
and retired by the Company on December 19, 1997. The LB Mortgage Loan II, which
is collateralized by a property located in Long Island, New York, is interest
free until February, 1998, at which time the LB Mortgage Loan II bears interest
at 8.00% and provides for interest only payments prior to maturity. The LB
Mortgage Loan II matures 180 days after the completion of a contingent event
relating to the environmental status of the property collateralizing the loan.
In conjunction with the acquisition of a portfolio of properties on
October 23, 1997, the Company, through the Operating Partnership, assumed a
mortgage loan in the amount of $4.2 million (the "Acquisition Mortgage Loan I").
The Acquisition Mortgage Loan I is collateralized by a property in Bensenville,
Illinois, bears interest at a fixed rate of 8.50% and provides for monthly
principal and interest payments based on a 15-year amortization schedule. The
Acquisition Mortgage Loan I matures on August 1, 2008. The Acquisition Mortgage
Loan I may be prepaid after July 15, 1998 in exchange for a prepayment fee.
In conjunction with the acquisition of a portfolio of properties on
December 9, 1997, the Company, through the Operating Partnership, assumed a
mortgage loan in the amount of $8.0 million (the "Acquisition Mortgage Loan
II"). The Acquisition Mortgage Loan II is collateralized by ten properties in
St. Charles, Louisiana, bears interest at a fixed rate of 7.75% and provides for
monthly principal and interest payments based on a 22-year amortization
schedule. The Acquisition Mortgage Loan II matures April 1, 2006. The
Acquisition Mortgage Loan II may be prepaid only after April 9, 1999 in exchange
for the greater of a 1% prepayment fee or a yield maintenance premium.
In conjunction with the acquisition of a portfolio of properties on
December 23, 1997, the Company, through the Operating Partnership, assumed a
Mortgage Loan in the amount of $3.6 million (the "Acquisition Mortgage Loan
III"). The Acquisition Mortgage Loan III is collateralized by two properties in
Houston, Texas, bears interest at a fixed interest rate of 8.875% and provides
for monthly principal and interest payments based on a 20-year amortization
schedule. The Acquisition Mortgage Loan III matures on June 1, 2003. The
Acquisition Mortgage Loan III may be prepaid only after June 30, 1998 in
exchange for the greater of a 2% prepayment fee or a yield maintenance premium.
On April 4, 1997, the Company, through the Operating Partnership,
entered into a $309.8 million unsecured loan (the "Defeasance Loan"). The
Defeasance Loan bore interest at LIBOR plus 1% and had a scheduled maturity of
July 1, 1999. The gross proceeds from the Defeasance Loan were used to purchased
U.S. Government Securities as substitute collateral to execute a legal
defeasance of the 1994 Mortgage Loan (the "1994 Defeased Mortgage Loan"). The
Defeasance Loan was paid off and retired in May 1997.
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On May 13, 1997, the Company, through the Operating Partnership, issued
$150.0 million of senior unsecured debt which matures on May 15, 2007 and bears
a coupon interest rate of 7.60% (the "2007 Notes"). The issue price of the 2007
Notes was 99.965%. Interest is paid semi-annually in arrears on May 15 and
November 15. The Company also entered into an interest rate protection agreement
which was used to fix the interest rate on the 2007 Notes prior to issuance. The
debt issue discount and the settlement cost of the interest rate protection
agreement are being amortized over the life of the 2007 Notes as an adjustment
to the interest expense. The 2007 Notes contain certain covenants, including
limitation on incurrence of debt and debt service coverage.
On May 13, 1997, the Company, through the Operating Partnership, issued
$100.0 million of senior unsecured debt which matures on May 15, 2027, and bears
a coupon interest rate of 7.15% (the "2027 Notes"). The issue price of the 2027
Notes was 99.854%. The 2027 Notes are redeemable, at the option of the holders
thereof, on May 15, 2002. Interest is paid semi-annually in arrears on May 15
and November 15. The Company also entered into an interest rate protection
agreement which was used to fix the interest rate on the 2027 Notes prior to
issuance. The debt issue discount and the settlement cost of the interest rate
protection agreement are being amortized over the life of the 2027 Notes as an
adjustment to interest expense. The 2027 Notes contain certain covenants
including limitation on incurrence of debt and debt service coverage.
On May 22, 1997, the Company, through the Operating Partnership, issued
$100.0 million of senior unsecured debt which matures on May 15, 2011 and bears
a coupon interest rate of 7.375% (the "2011 Notes"). The issue price of the 2011
Notes was 99.348%. Interest is paid semi-annually in arrears on May 15 and
November 15. The 2011 Notes are redeemable, at the option of the holder thereof,
on May 15, 2004 (the "Put Option"). The Company received approximately $1.8
million of proceeds from the holder of the 2011 Notes as consideration for the
Put Option. The Company will amortize the Put Option proceeds over the life of
the Put Option as an adjustment to interest expense. The Company also entered
into an interest rate protection agreement which was used to fix the interest
rate on the 2011 Notes prior to issuance. The debt issue discount and the
proceeds from the settlement of the interest rate protection agreement are being
amortized over the life of the 2011 Notes as an adjustment to interest expense.
The 2011 Notes contain certain covenants including limitation on incurrence of
debt and debt service coverage.
On November 20, 1997, the Company, through the Operating Partnership,
issued $50.0 million of senior unsecured debt which matures on November 21, 2005
and bears a coupon interest rate of 6.90% (the "2005 Notes"). The issue price of
the 2005 Notes was 100%. Interest is paid semi-annually in arrears on May 21 and
November 21. The 2005 Notes contain certain covenants including limitation on
incurrence of debt and debt service coverage.
On November 24, 1997, the Company, through the Operating Partnership,
entered into a $25.0 million unsecured loan (the "November 1997 Unsecured
Loan"). The November 1997 Unsecured Loan bore interest at LIBOR plus .8% and had
a scheduled maturity date of December 31, 1997. The November 1997 Unsecured Loan
was paid off and retired on December 5, 1997.
On December 8, 1997, the Company, through the Operating Partnership,
issued $150.0 million of senior unsecured debt which matures on December 1, 2006
and bears a coupon interest rate of 7.0% (the "2006 Notes"). The issue price of
the 2006 Notes was 100%. Interest is paid semi-annually in arrears on June 1 and
December 1. The Company also entered into an interest rate protection agreement
which was used to fix the interest rate on the 2006 Notes prior to issuance. The
settlement cost of the interest rate protection agreement is being amortized
over the life of the 2006 Notes as an adjustment to interest expense. The 2006
Notes contain certain covenants including limitation on incurrence of debt and
debt service coverage.
On December 8, 1997, the Company, through the Operating Partnership,
issued $100.0 million of unsecured debt which matures on December 1, 2017 and
bears a coupon interest rate of 7.5% (the "2017 Notes"). The issue price of the
2017 Notes was 99.808%. Interest is paid semi-annually in arrears on June 1 and
December 1. The Operating Partnership will amortize the debt issue discount over
the life of the 2017 Notes as an adjustment to interest expense. The 2017 Notes
may be redeemed at any time at the option of the Company, in whole or in part,
at a redemption price equal to the sum of the principal amount of the 2017 Notes
being redeemed plus accrued interest thereon to the redemption date and any
make-whole amount, as defined in the Prospectus Supplement relating to the 2017
Notes.
In December 1997, the Operating Partnership terminated the 1996
Unsecured Acquisition Facility and entered into a $300 million unsecured
revolving credit facility (the "1997 Unsecured Acquisition Facility") which
initially bears interest at LIBOR plus .8% or a "Corporate Base Rate" and
provides for interest only payments until maturity. The
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Operating Partnership may borrow under the facility to finance the acquisition
of additional properties and for other corporate purposes, including to obtain
additional working capital. The 1997 Unsecured Acquisition Facility contains
certain financial covenants relating to debt service coverage, market value net
worth, dividend payout ratio and total funded indebtedness.
On September 16, 1997, the Company issued 637,440 shares of $.01 par
value Common Stock (the "September 1997 Equity Offering"). The price per share
in the September 1997 Equity Offering was $31.38, resulting in gross offering
proceeds of $20.0 million. Proceeds to the Company, net of underwriters'
discount and total offering expenses, were approximately $18.9 million.
On October 15, 1997, the Company issued 5,400,000 shares of $.01 par
value Common Stock (the "October 1997 Equity Offering"). The price per share was
$33.40 resulting in gross offering proceeds of $180.4 million. Proceeds to the
Company, net of underwritings' discount and the total offering expenses, were
approximately $176.6 million.
On May 14, 1997, the Company issued 4,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 8 3/4%, $.01 par value, Series
B Cumulative Preferred Stock (the "Series B Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series B Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series B Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock and Series C
Preferred Stock (hereinafter defined); however, the Series A Preferred Stock has
the benefit of a guarantee by First Industrial Securities, L.P. The Series B
Preferred Stock is not redeemable prior to May 14, 2002. On or after May 14,
2002, the Series B Preferred Stock is redeemable for cash at the option of the
Company, in whole or in part, at a redemption price equivalent to $25 per
Depositary Share, or $100.0 million in the aggregate, plus dividends accrued and
unpaid to the redemption date. The Series B Preferred Stock has no stated
maturity and is not convertible into any other securities of the Company.
On June 6, 1997, the Company issued 2,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 8 5/8%, $.01 par value, Series
C Cumulative Preferred Stock (the "Series C Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series C Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series C Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock and Series B
Preferred Stock; however, the Series A Preferred Stock has the benefit of a
guarantee by First Industrial Securities, L.P. The Series C Preferred Stock is
not redeemable prior to June 6, 2007. On or after June 6, 2007, the Series C
Preferred Stock are redeemable for cash at the option of the Company, in whole
or in part, at a redemption price equivalent to $25 per Depositary Share, or
$50.0 million in the aggregate, plus dividends accrued and unpaid to the
redemption date. The Series C Preferred Stock has no stated maturity and is not
convertible into any other securities of the Company.
On September 4, 1997, the Board of Directors of the Company declared a
dividend distribution of one Preferred Share Purchase Right ("Right") for each
outstanding share of common stock, par value $.01 per share, of the Company (the
"Common Stock"). The dividend distribution was made on October 20, 1997 to
stockholders of record as of the close of business on October 19, 1997. In
addition, a Right will attach to each share of Common Stock issued in the
future. Each Right entitles the registered holder to purchase from the Company
one one-hundredth of a share of Junior Participating Preferred Stock (the
"Junior Preferred Stock"), at a price of $125 per one one-hundredth of a share
(the "Purchase Price"), subject to adjustment. The Rights become exercisable
only if a person or group of affiliated or associated persons (an "Acquiring
Person") acquires, or obtains the right to acquire, beneficial ownership of
Common Stock or other voting securities ("Voting Stock") that have 15% or more
of the voting power of the outstanding shares of Voting Stock, or if an
Acquiring Person commences or makes an announcement of an intention to commence
a tender offer or exchange offer to acquire beneficial ownership of Voting Stock
that have 15% or more of the voting power of the outstanding shares of Voting
Stock. The Rights will expire on October 19, 2007, unless redeemed earlier by
the Company at $.001 per Right, or exchanged by the Company at an exchange ratio
of one share of Common Stock per Right.
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In the event that a person becomes an Acquiring Person, each holder of
a Right, other than the Acquiring Person, is entitled to receive, upon exercise,
(1) Common Stock having a value equal to two times the Purchase Price of the
Right or (2) common stock of the acquiring company having a value equal to two
times the Purchase Price of the Right.
The Junior Preferred Stock ranks junior to all other series of the
Company's preferred stock with respect to payment of dividends and as to
distributions of assets in liquidation. Each share of Junior Preferred Stock has
a quarterly dividend rate per share equal to the greater of $1.00 or 100 times
the per share amount of any dividend (other than a dividend payable in shares of
Common Stock or a subdivision of the Common Stock) declared on the Common Stock,
subject to certain adjustments. In the event of liquidation, the holder of the
Junior Preferred Stock is entitled to receive a preferred liquidation payment
per share of $1.00 (plus accrued and unpaid dividends) or, if greater, an amount
equal to 100 times the payment to be made per share of Common Stock, subject to
certain adjustments.
On February 4, 1998, the Company issued 5,000,000 Depositary Shares,
each representing 1/100th of a share of the Company's 7.95%, $.01 par value,
Series D Cumulative Preferred Stock (the "Series D Preferred Stock"), at an
initial offering price of $25 per Depositary Share. Dividends on the Series D
Preferred Stock, represented by the Depositary Shares, are cumulative from the
date of initial issuance and are payable quarterly in arrears. With respect to
the payment of dividends and amounts upon liquidation, dissolution or winding
up, the Series D Preferred Stock ranks senior to payments on the Company's
Common Stock and pari passu with the Company's Series A Preferred Stock, Series
B Preferred Stock and Series C Preferred Stock; however, the Series A Preferred
Stock has the benefit of a guarantee by First Industrial Securities, L.P. The
Series D Preferred Stock is not redeemable prior to February 4, 2003. On or
after February 4, 2003, the Series D Preferred Stock is redeemable for cash at
the option of the Company, in whole or in part, at a redemption price equivalent
to $25 per Depositary Share, or $125.0 million in the aggregate, plus dividends
accrued and unpaid to the redemption date. The Series D Preferred Stock has no
stated maturity and is not convertible into any other securities of the Company.
On March 18, 1998, the Company issued 3,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 7.90%, $.01 par value, Series E
Cumulative Preferred Stock (the "Series E Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series E Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series E Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; however,
the Series A Preferred Stock has the benefit of a guarantee by First Industrial
Securities, L.P. The Series E Preferred Stock is not redeemable prior to March
18, 2003. On or after March 18, 2003, the Series E Preferred Stock is redeemable
for cash at the option of the Company, in whole or in part, at a redemption
price equivalent to $25 per Depositary Share, or $75.0 million in the aggregate,
plus dividends accrued and unpaid to the redemption date. The Series E Preferred
Stock has no stated maturity and is not convertible into any other securities of
the Company.
In March 1998, the Company declared a first quarter dividend of $.53
per share on its common stock which is payable on April 20, 1998. The Company
also declared a first quarter dividend of $.59375 per share, $54.688 per share
($.54688 per depositary share), $53.906 per share ($.53906 per depositary share)
and a partial period dividend of $30.365 per share ($.30365 per depositary
share) on its Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock, respectively, which is payable on
March 31, 1998.
The Company has considered its short-term (one year or less) liquidity
needs and the adequacy of its estimated cash flow from operations and other
expected liquidity sources to meet these needs. The Company believes that its
principal short-term liquidity needs are to fund normal recurring expenses, debt
service requirements and the minimum distribution required to maintain the
Company's REIT qualification under the Internal Revenue Code. The Company
anticipates that these needs will be met with cash flows provided by operating
activities.
The Company expects to meet long-term (greater than one year) liquidity
requirements such as property acquisitions, scheduled debt maturities, major
renovations, expansions and other non-recurring capital improvements through
long-term unsecured indebtedness and the issuance of additional equity
securities. On January 27, 1998, the Company registered under the Securities Act
of 1933, as amended (the "Securities Act"), approximately $789.2 million
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of common stock, preferred stock and depository shares and $400.0 million of
debt securities. As of March 18, 1998, $589.2 million of common stock, preferred
stock and depositary shares and $400.0 million of debt securities remained
registered under the Securities Act and were unissued. The Company may finance
the acquisition or development of additional properties through borrowings under
the 1997 Unsecured Acquisition Facility. At December 31, 1997, borrowings under
the 1997 Unsecured Acquisition Facility bore interest at a weighted average
interest rate of 6.77%. As of March 18, 1998, the Company had $229.6 million
available in additional borrowings under the 1997 Unsecured Acquisition
Facility. While the Company may sell properties if property or market conditions
make it desirable, the Company does not expect to sell assets in the foreseeable
future to satisfy its liquidity requirements.
ENVIRONMENTAL
The Company incurred environmental costs of $.3 million and $.1 million
in 1997 and 1996, respectively. The Company estimates 1998 costs of
approximately $.2 million. The Company estimates that the aggregate cost which
needs to be expended in 1998 and beyond with regard to currently identified
environmental issues will not exceed approximately $.6 million, a substantial
amount of which will be the primary responsibility of the tenant, the seller to
the Company or another responsible party. This estimate was determined by a
third party evaluation.
YEAR 2000 CONCERNS
The Company believes, based on discussions with its current systems'
vendor, that its software applications and operational programs will properly
recognize calendar dates beginning in the Year 2000. In addition, the Company is
discussing with its major vendors and customers the possibility of any interface
difficulties relating to the Year 2000 which may affect the Company. To date, no
significant concerns have been identified; however, there can be no assurance
that there will not be any Year 2000-related operating problems or expenses that
will arise with the Company's computer systems and software or in connection
with the Company's interface with the computer systems and software of its
vendors and customers.
OTHER
In June 1997, the FASB issued Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income." This statement, effective
for fiscal years beginning after December 15, 1997, requires the Company to
report components of comprehensive income in a financial statement that is
displayed with the same prominence as other financial statements. Comprehensive
income is defined by Concepts Statement No. 6, " Elements of Financial
Statements" as the change in the equity of a business enterprise during a period
from transactions and other events and circumstances from non-owner sources. It
includes all changes in equity during a period except those resulting from
investments by owners and distributions to owners. The Company has not yet
determined its comprehensive income.
In June 1997, the FASB issued Statement of Financial Accounting
Standards No. 131, " Disclosures about Segments of an Enterprise and Related
Information." This statement, effective for financial statements for periods
beginning after December 15, 1997, requires that a public business enterprise
report financial and descriptive information about its reportable operating
segments. Generally, financial information is required to be reported on the
basis that it is used internally for evaluating segment performance and deciding
how to allocate resources to segments. The Company has not yet determined the
impact of this statement on its financial statements.
INFLATION
For the last several years, inflation has not had a significant impact
on the Company because of the relatively low inflation rates in the Company's
markets of operation. Most of the Company's leases require the tenants to pay
their share of operating expenses, including common area maintenance, real
estate taxes and insurance, thereby reducing the Company's exposure to increases
in costs and operating expenses resulting from inflation. In addition, many of
the outstanding leases expire within five years which may enable the Company to
replace existing leases with new leases at higher base rentals if rents of
existing leases are below the then-existing market rate.
33
<PAGE> 35
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
See Index to Financial Statements and Financial Statement Schedule on page
F-1 of this Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURES
None.
PART III
ITEM 10, 11, 12, 13. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT,
EXECUTIVE COMPENSATION, SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT AND CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 10, Item 11, Item 12 and Item 13 will be
contained in a definitive proxy statement which the Registrant anticipates
will be filed no later than April 10, 1998, and thus is incorporated
herein by reference in accordance with General Instruction G(3) to Form
10-K.
34
<PAGE> 36
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, FINANCIAL STATEMENT SCHEDULE AND
REPORTS ON FORM 8-K
(a) FINANCIAL STATEMENTS, FINANCIAL STATEMENT SCHEDULE AND EXHIBITS
(1 & 2) See Index to Financial Statements and
Financial Statement Schedule on page F-1 of this
Form 10-K
(3) Exhibits:
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Form 10-Q of the
Company for the fiscal quarter ended June 30, 1996, File No.
1-13102)
3.2 Amended and Restated Bylaws of the Company, dated September 4,
1997 (incorporated by reference to Exhibit 1 of the Company's
Form 8-K, dated September 4, 1997, as filed on September 29,
1997, File No. 1-13102)
3.3 Articles of Amendment to the Company's Articles of Incorporation,
dated June 20, 1994 (incorporated by reference to Exhibit 3.2 of
the Form 10-Q of the Company for the fiscal quarter ended June
30, 1996, File No. 1-13102)
3.4 Articles Supplementary relating to the Company's 9 1/2% Series A
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.4 of the Form 10-Q of the Company for the
fiscal quarter ended June 30, 1996, File No. 1-13102)
3.5 Articles of Amendment to the Company's Articles of Incorporation,
dated May 31, 1996 (incorporated by reference to Exhibit 3.3 of
the Form 10-Q of the Company for the fiscal quarter ended June
30, 1996, File No. 1-13102)
3.6 Articles Supplementary relating to the Company's 8 3/4% Series B
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.1 of the Form 10-Q of the Company for the
fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A
No. 1 of the Company filed May 30, 1997, File No. 1-13102)
3.7 Articles Supplementary relating to the Company's 8 5/8% Series C
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.1 of the Form 8-K of the Company dated
June 6, 1997, File No. 1-13102)
3.8 Articles Supplementary relating to the Company's 7.95% Series D
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.1 of the Form 8-K of the Company dated
February 6, 1997, File No. 1-13102)
3.9* Articles Supplementary relating to the Company's 7.90% Series E
Cumulative Preferred Stock, $.01 par value.
3.10 Articles Supplementary relating to the Company's Junior
Participating Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.10 of Form S-3 of the Company and First
Industrial, L.P. dated September 24, 1997, Registration No.
333-29879)
4.1 Form of Amended and Restated Articles of Incorporation of First
Industrial Securities Corporation (incorporated by reference to
Exhibit 4.5 of the Company's Registration Statement on Form S-3,
File No. 33-97014)
4.2 Form of Articles Supplementary of First Industrial Securities
Corporation (incorporated by reference to Exhibit 4.6 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.3 Loan Agreement by and between Nomura Asset Capital Corporation
and First Industrial Financing Partnership, L.P. (incorporated by
reference to Exhibit 4.1 of the Company's Annual Report on Form
10-K for the year ended December 31, 1994, File No. 1-13102)
4.4 Amendment to Loan Agreement by and between Nomura Asset Capital
Corporation and First Industrial Financing Partnership, L.P.
(incorporated by reference to Exhibit 4.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, File
No. 1-13102)
</TABLE>
35
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.5 Form of Guarantee and Payment Agreement between First Industrial
Securities, L.P. and First Industrial Securities Corporation for
the benefit of American National Bank and Trust Company of
Chicago (incorporated by reference to Exhibit 4.8 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.6 Form of Agency and Advance Agreement among First Industrial
Realty Trust, Inc., First Industrial Securities, L.P. and
American National Bank and Trust Company of Chicago (incorporated
by reference to Exhibit 4.9 of the Company's Registration
Statement on Form S-3, File No. 33-97014)
4.7 Form of Guarantee Agency Agreement among First Industrial Realty
Trust, Inc., First Industrial Securities, L.P. and American
National Bank and Trust Company of Chicago (incorporated by
reference to Exhibit 4.10 of the Company's Registration Statement
on Form S-3, File No. 33-97014)
4.8 Form of Limited Partnership Agreement of First Industrial
Securities, L.P. (incorporated by reference to Exhibit 4.3 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.9 Deposit Agreement, dated May 14, 1997, by and among the Company,
First Chicago Trust Company of New York and holders from time to
time of Depositary Receipts (incorporated by reference to Exhibit
4.3 of the Form 10-Q of the Company for the fiscal quarter ended
March 31, 1997, as amended by Form 10-Q/A No. 1 of the Company
filed May 30, 1997, File No. 1-13102)
4.10 Deposit Agreement, dated June 6, 1997, by and among the Company,
First Chicago Trust Company of New York and holders from time to
time of Depositary Receipts (incorporated by reference to Exhibit
4.2 of the Form 8-K of the Company, dated June 6, 1997, File No.
1-13102)
4.11 Deposit Agreement, dated February 6, 1998, by and among the
Company, First Chicago Trust Company of New York and holders from
time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.2 of the Form 8-K of the Company, dated February 6,
1998, File No. 1-13102)
4.12 * Deposit Agreement, Dated March 18, 1998, by and among the
Company, First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts.
4.13 Indenture, dated as of May 13, 1997, between First Industrial,
L.P. and First Trust National Association, as Trustee
(incorporated by reference to Exhibit 4.1 of the Form 10-Q of the
Company for the fiscal quarter ended March 31, 1997, as amended
by Form 10-Q/A No. 1 of the Company filed May 30, 1997, File No.
1-13102)
4.14 Supplemental Indenture No. 1, dated as of May 13, 1997, between
First Industrial, L.P. and First Trust National Association as
Trustee relating to $150 million of 7.60% Notes due 2007 and $100
million of 7.15% Notes due 2027 (incorporated by reference to
Exhibit 4.2 of the Form 10-Q of the Company for the fiscal
quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of
the Company filed May 30, 1997, File No. 1-13102).
4.15 Supplemental Indenture No. 2, dated as of May 22, 1997, between
First Industrial, L.P. and First Trust National Association as
Trustee relating to $100 million of 7 3/8% Notes due 2011
(incorporated by reference to Exhibit 4.4 of the Form 10-Q of
First Industrial, L.P. for the fiscal quarter ended March 31,
1997, File No. 333-21873)
4.16 Supplemental Indenture No. 3 dated October 28, 1997 between First
Industrial, L.P. and First Trust National Association providing
for the issuance of Medium-term Notes due Nine Months or more
from Date of Issue (incorporated by reference to Exhibit 4 of
Form 8-K of First Industrial, L.P., dated November 3, 1997, as
filed November 3, 1997, File No. 333-21873)
4.17* 6.90% Medium-Term Note due 2005 in principal amount of $50
million issued by First Industrial, L.P.
4.18* 7.00% Medium-Term Note due 2006 in principal amount of $150
million issued by First Industrial, L.P.
4.19* 7.50% Medium-Term Note due 2017 in principal amount of $100
million issued by First Industrial, L.P.
4.20 Trust Agreement, dated as of May 16, 1997, between First
Industrial, L.P. and First Bank National Association, as Trustee
(incorporated by reference to Exhibit 4.5 of the Form 10-Q of the
Operating Partnership for the fiscal quarter ended March 31,
1997, File No. 333-21873)
4.21 Rights Agreement, dated as of September 16, 1997, between the
Company and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of Form 8-A12B
as filed on September 24, 1997, File No. 1-13102)
</TABLE>
36
<PAGE> 37
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.22* Unsecured Revolving Credit Agreement (the "Unsecured Revolving
Credit Agreement"), dated as of December 15, 1997, by and among
First Industrial, L.P., First Industrial Realty Trust, Inc. and
The First National Bank of Chicago, Union Bank of Switzerland,
New York Branch and certain other banks
10.1 * Sixth Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998.
10.2 Non-Competition Agreement between Jay H. Shidler and First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 10.16 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, File No. 1-13102)
10.3 Form of Non-Competition Agreement between each of Michael T.
Tomasz, Paul T. Lambert, Michael J. Havala, Michael W. Brennan,
Michael G. Damone, Duane H. Lund, and Johannson L. Yap and First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 10.14 to the Company's Registration Statement on Form
S-11, File No. 33-77804)
10.4+ 1994 Stock Incentive Plan (incorporated by reference to Exhibit
10.37 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1994, File No. 1-13102)
10.5 Letter of Resignation from Paul T. Lambert to First Industrial,
dated January 10, 1996 (incorporated by reference to Exhibit
10.40 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.6+ Employee Stock Option Agreement Amendment for Paul T. Lambert,
dated December 31, 1995 (incorporated by reference to Exhibit
10.41 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.7+ Separation Agreement, dated January 10, 1996, between First
Industrial and Paul T. Lambert (incorporated by reference to
Exhibit 10.42 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, File No. 1-13102)
10.8 Noncompetition Agreement between First Industrial and Paul T.
Lambert, dated January 1, 1996 (incorporated by reference to
Exhibit 10.43 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, File No. 1-13102)
10.9 Interest Rate Protection Agreement (incorporated by reference to
Exhibit 10.40 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, File No. 1-13102)
10.10 Interest Rate Protection Termination Agreement between First
Industrial Financing Partnership, L.P. and UBS Securities (Swaps)
Inc. (incorporated by reference to Exhibit 10.45 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995,
File No. 1-13102)
10.11 Interest Rate Protection Agreement between First Industrial
Financing Partnership, L.P. and UBS Securities (Swaps) Inc.
(incorporated by reference to Exhibit 10.46 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995,
File No. 1-13102)
10.12 Interest Rate Swap Agreement between First Industrial, L.P. and
UBS Securities (Swaps) Inc. (incorporated by reference to Exhibit
10.47 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.13 First Industrial Realty Trust, Inc. Deferred Income Plan
(incorporated by reference to Exhibit 10 of the Form 10-Q of the
Company for the fiscal quarter ended March 31, 1996, File No.
1-13102)
10.14 Contribution Agreement, dated March 19, 1996, among FR
Acquisitions, Inc. and the parties listed on the signature pages
thereto (incorporated by reference to Exhibit 10.1 of the Form
8-K of the Company, dated April 3, 1996, File No. 1-13102)
10.15 Contribution Agreement, dated January 31, 1997, among FR
Acquisitions, Inc. and the parties listed on the signature pages
thereto (incorporated by reference to Exhibit 10.58 of the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, File No. 1-13102)
10.16+ Employment Agreement, dated December 4, 1996, between the
Company and Michael T. Tomasz (incorporated by reference to
Exhibit 10.59 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, File No. 1-13102)
10.17+ Employment Agreement, dated February 1, 1997, between the
Company and Michael W. Brennan (incorporated by reference to
Exhibit 10.60 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1996, File No. 1-13102)
</TABLE>
37
<PAGE> 38
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
10.18+ Employment Agreement, dated January 31, 1997, between the Company
and Jan Burman (incorporated by reference to Exhibit 10.61 of the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, File No. 1-13102)
10.19*+ Employment Agreement, dated December 9, 1997, between the
Company and Scott P. Sealy, Sr.
10.20*+ Employment Agreement, dated December 10, 1997, between the
Company and Donald Thompson
10.21+ 1997 Stock Incentive Plan (incorporated by reference to Exhibit
10.62 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 1-13102)
12.1* Computation of ratios of earnings to fixed charges and
preferred stock dividends of the Company
21.1* Subsidiaries of the Registrant
23* Consent of Coopers & Lybrand L.L.P.
27* Financial Data Schedule
* Filed herewith.
+ Indicates a compensatory plan or arrangement contemplated by Item
14 a (3) of Form 10-K.
</TABLE>
(B) REPORTS ON FORM 8-K AND FORM 8-K/A
Report on Form 8-K/A No. 2 filed October 16, 1997, dated June
30, 1997, relating to the acquisition of 68 properties, one
parking lot and land parcels for future development. The reports
include Combined Historical Statements of Revenues and Certain
Expenses for the acquired properties and Pro Forma Statements of
Operations for First Industrial Realty Trust, Inc.
Report on Form 8-K filed October 21, 1997, dated October 15,
1997, Underwriting Agreement dated October 6, 1997 for 5,400,000
shares of the Company's Common Stock, par value $.01 per share.
Report on Form 8-K filed November 14, 1997, dated October 30,
1997, relating to the acquisition of 127 properties, the
negotiations to acquire an additional 79 properties and the
acquisition of land parcels for future development. The reports
include Combined Historical Statements of Revenues and Certain
Expenses for the acquired and to be acquired properties and Pro
Forma Statements of Operations for First Industrial Realty
Trust, Inc.
Report on Form 8-K dated December 11, 1997, as amended by the
report on Form 8-K/A No. 1 filed January 22, 1998, as further
amended by the report on Form 8-K/A No. 2 filed February 26,
1998, relating to the acquisition of 85 properties, the
negotiations to acquire an additional property and the
acquisition of land parcels for future development. The reports
include Combined Historical Statements of Revenues and Certain
Expenses for the acquired and to be acquired properties and Pro
Forma Balance Sheet and Pro Forma Statements of Operations for
First Industrial Realty Trust, Inc.
38
<PAGE> 39
- --------------------------------------------------------------------------------
The Company has prepared supplemental financial and operating
information which is available without charge upon request to the Company.
Please direct requests as follows:
First Industrial Realty Trust, Inc.
311 S. Wacker, Suite 4000
Chicago, IL 60606
Attention: Investor Relations
39
<PAGE> 40
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
<TABLE>
<S> <C>
Date: March 23, 1998 By: /s/ Michael T. Tomasz
-----------------------------------------------
Michael T. Tomasz
President, Chief Executive Officer and Director
(Principal Executive Officer)
Date: March 23, 1998 By: /s/ Michael J. Havala
-----------------------------------------------
Michael J. Havala
Chief Financial Officer
(Principal Financial and Accounting Officer)
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Jay H. Shidler Chairman of the Board of Directors March 23, 1998
- -----------------------------------------
Jay H. Shidler
/s/ Michael T. Tomasz President, Chief Executive Officer March 23, 1998
- ----------------------------------------- and Director
Michael T. Tomasz
/s/ Michael W. Brennan Chief Operating Officer and Director March 23, 1998
- -----------------------------------------
Michael W. Brennan
/s/ Michael G. Damone Director of Strategic Planning March 23, 1998
- ----------------------------------------- and Director
Michael G. Damone
/s/ John L. Lesher Director March 23, 1998
- -----------------------------------------
John L. Lesher
/s/ Kevin W. Lynch Director March 23, 1998
- -----------------------------------------
Kevin W. Lynch
/s/ John E. Rau Director March 23, 1998
- -----------------------------------------
John E. Rau
/s/ Robert J. Slater Director March 23, 1998
- -----------------------------------------
Robert J. Slater
/s/ J. Steven Wilson Director March 23, 1998
- -----------------------------------------
J. Steven Wilson
</TABLE>
40
<PAGE> 41
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Form 10-Q of the
Company for the fiscal quarter ended June 30, 1996, File No.
1-13102)
3.2 Amended and Restated Bylaws of the Company, dated September 4,
1997 (incorporated by reference to Exhibit 1 of the Company's
Form 8-K, dated September 4, 1997, as filed on September 29,
1997, File No. 1-13102)
3.3 Articles of Amendment to the Company's Articles of Incorporation,
dated June 20, 1994 (incorporated by reference to Exhibit 3.2 of
the Form 10-Q of the Company for the fiscal quarter ended June
30, 1996, File No. 1-13102)
3.4 Articles Supplementary relating to the Company's 91/2% Series A
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.4 of the Form 10-Q of the Company for the
fiscal quarter ended June 30, 1996, File No. 1-13102)
3.5 Articles of Amendment to the Company's Articles of Incorporation,
dated May 31, 1996 (incorporated by reference to Exhibit 3.3 of
the Form 10-Q of the Company for the fiscal quarter ended June
30, 1996, File No. 1-13102)
3.6 Articles Supplementary relating to the Company's 8 3/4% Series B
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.1 of the Form 10-Q of the Company for the
fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A
No. 1 of the Company filed May 30, 1997, File No. 1-13102)
3.7 Articles Supplementary relating to the Company's 8 5/8% Series C
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.1 of the Form 8-K of the Company dated
June 6, 1997, File No. 1-13102)
3.8 Articles Supplementary relating to the Company's 7.95% Series D
Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.1 of the Form 8-K of the Company dated
February 6, 1997, File No. 1-13102)
3.9* Articles Supplementary relating to the Company's 7.90% Series E
Cumulative Preferred Stock, $.01 par value.
3.10 Articles Supplementary relating to the Company's Junior
Participating Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.10 of Form S-3 of the Company and First
Industrial, L.P. dated September 24, 1997, Registration No.
333-29879)
4.1 Form of Amended and Restated Articles of Incorporation of First
Industrial Securities Corporation (incorporated by reference to
Exhibit 4.5 of the Company's Registration Statement on Form S-3,
File No. 33-97014)
4.2 Form of Articles Supplementary of First Industrial Securities
Corporation (incorporated by reference to Exhibit 4.6 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.3 Loan Agreement by and between Nomura Asset Capital Corporation
and First Industrial Financing Partnership, L.P. (incorporated by
reference to Exhibit 4.1 of the Company's Annual Report on Form
10-K for the year ended December 31, 1994, File No. 1-13102)
4.4 Amendment to Loan Agreement by and between Nomura Asset Capital
Corporation and First Industrial Financing Partnership, L.P.
(incorporated by reference to Exhibit 4.2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1994, File
No. 1-13102)
4.5 Form of Guarantee and Payment Agreement between First Industrial
Securities, L.P. and First Industrial Securities Corporation for
the benefit of American National Bank and Trust Company of
Chicago (incorporated by reference to Exhibit 4.8 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.6 Form of Agency and Advance Agreement among First Industrial
Realty Trust, Inc., First Industrial Securities, L.P. and
American National Bank and Trust Company of Chicago (incorporated
by reference to Exhibit 4.9 of the Company's Registration
Statement on Form S-3, File No. 33-97014)
</TABLE>
41
<PAGE> 42
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.7 Form of Guarantee Agency Agreement among First Industrial Realty
Trust, Inc., First Industrial Securities, L.P. and American
National Bank and Trust Company of Chicago (incorporated by
reference to Exhibit 4.10 of the Company's Registration Statement
on Form S-3, File No. 33-97014)
4.8 Form of Limited Partnership Agreement of First Industrial
Securities, L.P. (incorporated by reference to Exhibit 4.3 of the
Company's Registration Statement on Form S-3, File No. 33-97014)
4.9 Deposit Agreement, dated May 14, 1997, by and among the Company,
First Chicago Trust Company of New York and holders from time to
time of Depositary Receipts (incorporated by reference to Exhibit
4.3 of the Form 10-Q of the Company for the fiscal quarter ended
March 31, 1997, as amended by Form 10-Q/A No. 1 of the Company
filed May 30, 1997, File No. 1-13102)
4.10 Deposit Agreement, dated June 6, 1997, by and among the Company,
First Chicago Trust Company of New York and holders from time to
time of Depositary Receipts (incorporated by reference to Exhibit
4.2 of the Form 8-K of the Company, dated June 6, 1997, File No.
1-13102)
4.11 Deposit Agreement, dated February 6, 1998, by and among the
Company, First Chicago Trust Company of New York and holders from
time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.2 of the Form 8-K of the Company, dated February 6,
1998, File No. 1-13102)
4.12 * Deposit Agreement dated March 18, 1998, by and among the
Company, First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts.
4.13 Indenture, dated as of May 13, 1997, between First Industrial,
L.P. and First Trust National Association, as Trustee
(incorporated by reference to Exhibit 4.1 of the Form 10-Q of the
Company for the fiscal quarter ended March 31, 1997, as amended
by Form 10-Q/A No. 1 of the Company filed May 30, 1997, File No.
1-13102).
4.14 Supplemental Indenture No. 1, dated as of May 13, 1997, between
First Industrial, L.P. and First Trust National Association as
Trustee relating to $150 million of 7.60% Notes due 2007 and $100
million of 7.15% Notes due 2027 (incorporated by reference to
Exhibit 4.2 of the Form 10-Q of the Company for the fiscal
quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of
the Company filed May 30, 1997, File No. 1-13102).
4.15 Supplemental Indenture No. 2, dated as of May 22, 1997, between
First Industrial, L.P. and First Trust National Association as
Trustee relating to $100 million of 7 3/8% Notes due 2011
(incorporated by reference to Exhibit 4.4 of the Form 10-Q of
First Industrial, L.P. for the fiscal quarter ended March 31,
1997, File No. 333-21873)
4.16 Supplemental Indenture No. 3 dated October 28, 1997 between First
Industrial, L.P. and First Trust National Association providing
for the issuance of Medium-term Notes due Nine Months or more
from Date of Issue (incorporated by reference to Exhibit 4 of
Form 8-K of First Industrial, L.P., dated November 3, 1997, as
filed November 3, 1997, File No. 333-21873)
4.17* 6.90% Medium-Term Note due 2005 in principal amount of $50
million issued by First Industrial, L.P.
4.18* 7.00% Medium-Term Note due 2006 in principal amount of $150
million issued by First Industrial, L.P.
4.19* 7.50% Medium-Term Note due 2017 in principal amount of $100
million issued by First Industrial, L.P.
4.20 Trust Agreement, dated as of May 16, 1997, between First
Industrial, L.P. and First Bank National Association, as Trustee
(incorporated by reference to Exhibit 4.5 of the Form 10-Q of the
Operating Partnership for the fiscal quarter ended March 31,
1997, File No. 333-21873)
4.21 Rights Agreement, dated as of September 16, 1997, between the
Company and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of Form 8-A12B
as filed on September 24, 1997, File No. 1-13102)
4.22* Unsecured Revolving Credit Agreement (the "Unsecured Revolving
Credit Agreement"), dated as of December 15, 1997, by and among
First Industrial, L.P., First Industrial Realty Trust, Inc. and
The First National Bank of Chicago, Union Bank of Switzerland,
New York Branch and certain other banks
10.1 * Sixth Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998
</TABLE>
42
<PAGE> 43
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
10.2 Non-Competition Agreement between Jay H. Shidler and First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 10.16 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, File No. 1-13102)
10.3 Form of Non-Competition Agreement between each of Michael T.
Tomasz, Paul T. Lambert, Michael J. Havala, Michael W. Brennan,
Michael G. Damone, Duane H. Lund, and Johannson L. Yap and First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 10.14 to the Company's Registration Statement on Form
S-11, File No. 33-77804)
10.4+ 1994 Stock Incentive Plan (incorporated by reference to Exhibit
10.37 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1994, File No. 1-13102)
10.5 Letter of Resignation from Paul T. Lambert to First Industrial,
dated January 10, 1996 (incorporated by reference to Exhibit
10.40 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.6+ Employee Stock Option Agreement Amendment for Paul T. Lambert,
dated December 31, 1995 (incorporated by reference to Exhibit
10.41 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.7+ Separation Agreement, dated January 10, 1996, between First
Industrial and Paul T. Lambert (incorporated by reference to
Exhibit 10.42 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, File No. 1-13102)
10.8 Noncompetition Agreement between First Industrial and Paul T.
Lambert, dated January 1, 1996 (incorporated by reference to
Exhibit 10.43 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, File No. 1-13102)
10.9 Interest Rate Protection Agreement (incorporated by reference to
Exhibit 10.40 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994, File No. 1-13102)
10.10 Interest Rate Protection Termination Agreement between First
Industrial Financing Partnership, L.P. and UBS Securities (Swaps)
Inc. (incorporated by reference to Exhibit 10.45 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995,
File No. 1-13102)
10.11 Interest Rate Protection Agreement between First Industrial
Financing Partnership, L.P. and UBS Securities (Swaps) Inc.
(incorporated by reference to Exhibit 10.46 of the Company's
Annual Report on Form 10-K for the year ended December 31, 1995,
File No. 1-13102)
10.12 Interest Rate Swap Agreement between First Industrial, L.P. and
UBS Securities (Swaps) Inc. (incorporated by reference to Exhibit
10.47 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1995, File No. 1-13102)
10.13 First Industrial Realty Trust, Inc. Deferred Income Plan
(incorporated by reference to Exhibit 10 of the Form 10-Q of the
Company for the fiscal quarter ended March 31, 1996, File No.
1-13102)
10.14 Contribution Agreement, dated March 19, 1996, among FR
Acquisitions, Inc. and the parties listed on the signature pages
thereto (incorporated by reference to Exhibit 10.1 of the Form
8-K of the Company, dated April 3, 1996, File No. 1-13102)
10.15 Contribution Agreement, dated January 31, 1997, among FR
Acquisitions, Inc. and the parties listed on the signature pages
thereto (incorporated by reference to Exhibit 10.58 of the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, File No. 1-13102)
10.16+ Employment Agreement, dated December 4, 1996, between the Company
and Michael T. Tomasz (incorporated by reference to Exhibit 10.59
of the Company's Annual Report on Form 10-K for the year ended
December 31, 1996, File No. 1-13102)
10.17+ Employment Agreement, dated February 1, 1997, between the Company
and Michael W. Brennan (incorporated by reference to Exhibit
10.60 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 1-13102)
10.18+ Employment Agreement, dated January 31, 1997, between the Company
and Jan Burman (incorporated by reference to Exhibit 10.61 of the
Company's Annual Report on Form 10-K for the year ended December
31, 1996, File No. 1-13102)
10.19*+ Employment Agreement, dated December 9, 1997, between the Company
and Scott P. Sealy, Sr.
10.20*+ Employment Agreement, dated December 10, 1997, between the
Company and Donald Thompson
10.21+ 1997 Stock Incentive Plan (incorporated by reference to Exhibit
10.62 of the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, File No. 1-13102)
12.1* Computation of ratios of earnings to fixed charges and preferred
stock dividends of the Company
21.1* Subsidiaries of the Registrant
</TABLE>
43
<PAGE> 44
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
23* Consent of Coopers & Lybrand L.L.P.
27* Financial Data Schedule
* Filed herewith.
+ Indicates a compensatory plan or arrangement contemplated by Item
14 a (3) of Form 10-K.
</TABLE>
44
<PAGE> 45
FIRST INDUSTRIAL REALTY TRUST, INC.
INDEX TO FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULE
<TABLE>
<CAPTION>
PAGE
<S> <C>
FINANCIAL STATEMENTS
Report of Independent Accountants ................................................ F-2
Consolidated Balance Sheets of First Industrial Realty Trust, Inc. (the "Company")
as of December 31, 1997 and 1996 ............................................... F-3
Consolidated Statements of Operations of the Company for the Years Ended
December 31, 1997, 1996 and 1995 ............................................... F-4
Consolidated Statements of Changes in Stockholders' Equity of the Company for the
Years Ended December 31, 1997, 1996 and 1995 ................................... F-5
Consolidated Statements of Cash Flows of the Company for the Years Ended
December 31, 1997, 1996 and 1995 ............................................... F-6
Notes to Consolidated Financial Statements ....................................... F-7
FINANCIAL STATEMENT SCHEDULE
Schedule III: Real Estate and Accumulated Depreciation .......................... S-1
</TABLE>
F-1
<PAGE> 46
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
First Industrial Realty Trust, Inc.
We have audited the consolidated financial statements and the financial
statement schedule of First Industrial Realty Trust, Inc. (the "Company") as
listed on page F-1 of this Form 10-K. These financial statements and the
financial statement schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements and
the financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the consolidated financial position of First
Industrial Realty Trust, Inc. as of December 31, 1997 and 1996, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1997 in conformity with generally
accepted accounting principles. In addition, in our opinion, the financial
statement schedule referred to above, when considered in relation to the basic
financial statements taken as a whole, presents fairly, in all material
respects, the information required to be included therein.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
February 17, 1998
F-2
<PAGE> 47
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED BALANCE SHEETS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
December 31, December 31,
1997 1996
----------- -----------
ASSETS
<S> <C> <C>
Assets:
Investment in Real Estate:
Land .................................................... $ 299,020 $ 153,390
Buildings and Improvements .............................. 1,663,731 880,924
Furniture, Fixtures and Equipment ....................... 1,437 1,662
Construction in Progress ................................ 30,158 14,803
Less: Accumulated Depreciation .......................... (121,030) (91,457)
----------- -----------
Net Investment in Real Estate ...................... 1,873,316 959,322
Cash and Cash Equivalents ................................... 13,222 7,646
Restricted Cash ............................................. 313,060 11,837
Tenant Accounts Receivable, Net ............................. 6,280 4,667
Deferred Rent Receivable .................................... 10,144 8,290
Interest Rate Protection Agreements, Net .................... -- 8,376
Deferred Financing Costs, Net ............................... 8,594 7,442
Prepaid Expenses and Other Assets, Net ...................... 47,547 15,020
----------- -----------
Total Assets ....................................... $ 2,272,163 $ 1,022,600
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Mortgage Loans Payable ...................................... $ 101,198 $ 392,082
Defeased Mortgage Loan Payable .............................. 300,000 --
Senior Unsecured Debt, Net .................................. 648,994 --
Acquisition Facilities Payable .............................. 129,400 4,400
Promissory Notes Payable .................................... -- 9,919
Accounts Payable and Accrued Expenses ....................... 50,373 18,374
Rents Received in Advance and Security Deposits ............. 14,104 6,122
Dividends/Distributions Payable ............................. 22,010 16,281
----------- -----------
Total Liabilities .................................. 1,266,079 447,178
----------- -----------
Minority Interest ............................................ 151,494 42,861
Commitments and Contingencies ................................ -- --
Stockholders' Equity:
Preferred Stock ($.01 par value, 10,000,000 shares authorized,
1,650,000, 40,000 and 20,000 shares of Series A, B and C
Cumulative Preferred Stock, respectively, issued and
outstanding at December 31, 1997 having a liquidation
preference of $25 per share ($41,250), $2,500 per share
($100,000) and $2,500 per share ($50,000), respectively,
and 1,650,000 shares of Series A Cumulative Preferred Stock
issued and outstanding at December 31, 1996 having a
liquidation preference of $25 per share ($41,250)) ......... 17 17
Common Stock ($.01 par value, 100,000,000 shares authorized,
36,433,859 and 29,939,417 shares issued and outstanding at
December 31, 1997 and 1996, respectively ................... 364 299
Additional Paid-in-Capital ................................... 934,622 584,009
Distributions in Excess of Accumulated Earnings .............. (76,996) (51,764)
Unearned Value of Restricted Stock Grants .................... (3,417) --
----------- -----------
Total Stockholders' Equity ......................... 854,590 532,561
----------- -----------
Total Liabilities and Stockholders' Equity ......... $ 2,272,163 $ 1,022,600
=========== ===========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-3
<PAGE> 48
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Revenues:
Rental Income .................................. $ 164,389 $ 109,113 $ 83,522
Tenant Recoveries and Other Income ............. 46,028 30,942 22,964
Interest Income- Defeasance .................... 12,786 -- --
--------- --------- ---------
Total Revenues ............................... 223,203 140,055 106,486
--------- --------- ---------
Expenses:
Real Estate Taxes .............................. 34,653 23,371 16,998
Repairs and Maintenance ........................ 8,278 5,408 3,872
Property Management ............................ 7,850 5,067 3,539
Utilities ...................................... 5,801 3,582 2,060
Insurance ...................................... 568 877 903
Other .......................................... 2,612 919 930
General and Administrative ..................... 6,248 4,018 3,135
Interest Expense ............................... 49,859 28,954 28,591
Amortization of Interest Rate Protection
Agreements and Deferred Financing Costs ....... 2,812 3,286 4,438
Depreciation and Other Amortization ............ 39,573 28,049 22,264
--------- --------- ---------
Total Expenses ............................... 158,254 103,531 86,730
--------- --------- ---------
Income Before Gain (Loss) on Disposition of
Interest
Rate Protection Agreements, Gain on Sales of
Properties, Minority Interest and Extraordinary 64,949 36,524 19,756
Loss
Gain (Loss) on Disposition of Interest Rate
Protection Agreements ......................... 1,430 -- (6,410)
Gain on Sales of Properties ....................... 5,003 4,344 --
--------- --------- ---------
Income Before Minority Interest and Extraordinary
Loss ............................................. 71,382 40,868 13,346
Income Allocated to Minority Interest ............. (5,312) (2,931) (997)
--------- --------- ---------
Income Before Extraordinary Loss .................. 66,070 37,937 12,349
Extraordinary Loss ................................ (14,124) (2,273) --
--------- --------- ---------
Net Income ........................................ 51,946 35,664 12,349
Preferred Stock Dividends ......................... (11,856) (3,919) (468)
--------- --------- ---------
Net Income Available to Common Stockholders ....... $ 40,090 $ 31,745 $ 11,881
========= ========= =========
Net Income Available to Common Stockholders
Before Extraordinary Loss Per Weighted Average
Common Share Outstanding
Basic .......................................... $ 1.72 $ 1.37 $ .63
========= ========= =========
Diluted ........................................ $ 1.70 $ 1.37 $ .63
========= ========= =========
Extraordinary Loss Per Weighted Average Common
Share Outstanding
Basic .......................................... $ (.45) $ (.09) $---
========= ========= =========
Diluted ........................................ $ (.44) $ (.09) $---
========= ========= =========
Net Income Available to Common Stockholders Per
Weighted Average Common Share Outstanding
Basic .......................................... $ 1.27 $ 1.28 $ .63
========= ========= =========
Diluted ........................................ $ 1.26 $ 1.28 $. 63
========= ========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-4
<PAGE> 49
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
(DOLLARS IN THOUSANDS, except per Share data)
<TABLE>
<CAPTION>
Additional Distributions Unearned
Preferred Common Paid-In Retained In Excess of Value of Rest.
Total Stock Stock Capital Earnings Accum. Earnings Stock Grants
--------- --------- --------- --------- --------- --------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994 .. $ 292,420 $ -- $ 189 $ 301,201 $ -- $ (8,970) $ --
Net Proceeds from Issuance of
Preferred Stock ............. 36,719 17 -- 36,702 -- -- --
Preferred Stock Dividends
($.2837 per Series A Share).. (468) -- -- -- (468) -- --
Distributions
($1.905 per Share/Unit) ..... (38,898) -- -- -- (12,878) (26,020) --
Net Income Before Minority
Interest .................... 13,346 -- -- -- 13,346 -- --
Minority Interest:
Allocation of Income ......... (997) -- -- -- -- (997) --
Distributions ($1.905 per
Unit)........................ 2,896 -- -- -- -- 2,896 --
Conversion of Units to Common
Stock ....................... 1,005 -- 1 1,004 -- -- --
--------- --------- --------- --------- --------- --------- ---------
Balance at December 31, 1995 . 306,023 17 190 338,907 -- (33,091) --
Net Proceeds from Issuance of
Common Stock ................ 244,040 -- 109 243,931 -- -- --
Preferred Stock Dividends
($2.375 per Series A Share) . (3,919) -- -- -- (3,919) -- --
Distributions
($1.9675 per Share/Unit) .... (54,318) -- -- -- (34,676) (19,642) --
Exercise of Stock Options .... 228 -- -- 228 -- -- --
Net Income Before Minority
Interest .................... 38,595 -- -- -- 38,595 -- --
Minority Interest: ........... --
Allocation of Income ......... (2,931) -- -- -- -- (2,931) --
Distributions ($1.9675 per
Unit) ....................... 3,900 -- -- -- -- 3,900 --
Conversion of Units to Common
Stock ....................... 943 -- -- 943 -- -- --
--------- --------- --------- --------- --------- --------- ---------
Balance at December 31, 1996... 532,561 17 299 584,009 -- (51,764) --
Net Proceeds from Issuance of
Preferred Stock ............. 144,289 -- -- 144,289 -- -- --
Net Proceeds from Issuance of
Common Stock ................ 195,456 -- 60 195,396 -- -- --
Issuance of Restricted Stock . -- -- 1 3,654 -- -- (3,655)
Amortization of Restricted
Stock ....................... 238 -- -- -- -- -- 238
Grants
Preferred Stock Dividends
($2.375 per Series A Share,
$137.326 per Series B Share
and $122.029 per
Series C Share) ............. (11,856) -- -- -- (11,856) -- --
Distributions
($2.045 per Share/Unit ...... (73,836) -- -- -- (45,402) (28,434) --
Exercise of Stock Options .... 3,883 -- 2 3,881 -- -- --
Net Income Before Minority
Interest .................... 57,258 -- -- -- 57,258 -- --
Minority Interest:
Allocation of Income ......... (5,312) -- -- -- -- (5,312) --
Distributions ($2.045 per Unit 8,514 -- -- -- -- 8,514 --
Conversion of Units to Common
Stock ....................... 3,395 -- 2 3,393 -- -- --
--------- --------- --------- --------- --------- --------- ---------
Balance at December 31, 1997 .. $ 854,590 $ 17 $ 364 $ 934,622 $ -- $ (76,996) $ (3,417)
========= ========= ========= ========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-5
<PAGE> 50
FIRST INDUSTRIAL REALTY TRUST, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income ................................................ $ 51,946 $ 35,664 $ 12,349
Income Allocated to Minority Interest ..................... 5,312 2,931 997
--------- --------- ---------
Income Before Minority Interest ........................... 57,258 38,595 13,346
Adjustments to Reconcile Net Income to Net Cash Provided by
Operating Activities:
Depreciation .............................................. 35,286 24,542 19,440
Amortization of Interest Rate Protection Agreement and
Deferred Financing Costs ................................ 2,812 3,286 4,438
Other Amortization ........................................ 4,353 3,507 2,824
Provision for Bad Debts ................................... 850 100 352
Gain on Sales of Properties ............................... (5,003) (4,344) --
(Gain)Loss from Disposition of Interest Rate Protection
Agreements .............................................. (1,430) -- 6,410
Extraordinary Loss ........................................ 14,124 2,273 --
Increase in Tenant Accounts Receivable, Prepaid Expenses
and Other Assets ........................................ (23,034) (4,448) (5,207)
Increase in Deferred Rent Receivable ...................... (2,075) (1,189) (1,584)
Increase in Accounts Payable and Accrued Expenses and Rents
Received in Advance and Security Deposits ............... 17,644 2,085 953
Increase in Organization Costs ............................ (185) (68) (153)
Decrease (Increase) in Restricted Cash .................... 2,035 (1,718) (2,278)
--------- --------- ---------
Net Cash Provided by Operating Activities .............. 102,635 62,621 38,541
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of and Additions to Investment in Real Estate .... (827,871) (257,156) (87,908)
Proceeds from Sale of Investment in Real Estate ........... 33,658 14,972 --
Funding of Mortgage Loans Receivable ...................... (18,785) -- --
Repayment of Mortgage Loans Receivable .................... 4,751 -- --
(Increase) Decrease in Restricted Cash .................... 2,742 1,613 3,749
--------- --------- ---------
Net Cash Used in Investing Activities .................. (805,505) (240,571) (84,159)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from Sale of Common Stock ........................ 200,360 260,703 --
Common Stock Underwriting Discounts/Offering Costs ........ (5,221) (15,190) --
Proceeds from Exercise of Employee Stock Options .......... 3,883 -- --
Proceeds from Sale of Preferred Stock ..................... 150,000 -- 41,250
Preferred Stock Underwriting Discounts/Offering Costs ..... (5,710) (408) (4,123)
Proceeds from Sale of Interest Rate Protection Agreements . 9,950 -- --
Purchase of Interest Rate Protection Agreements ........... (150) -- --
Purchase of U.S. Government Securities .................... (300,000) -- --
Proceeds from Maturity of U.S. Government Securities ...... 300,000 -- --
Increase in Restricted Cash- Defeasance ................... (306,000) -- --
Proceeds from Senior Unsecured Debt ....................... 983,757 -- --
Repayment of Senior Unsecured Debt ........................ (334,800) -- --
Other Proceeds from Senior Unsecured Debt ................. 2,377 -- --
Other Costs of Senior Unsecured Debt ...................... (2,294) -- --
Dividends/Distributions ................................... (68,107) (47,991) (38,592)
Preferred Stock Dividends ................................. (11,856) (4,387) --
Proceeds from Mortgage Loans Payable ...................... -- 36,750 52,850
Repayments on Mortgage Loans Payable ...................... (11,156) (935) (6,000)
Proceeds from Acquisition Facilities Payable .............. 540,100 103,523 83,943
Repayments on Acquisition Facilities Payable .............. (415,100) (147,357) (84,408)
Proceeds from Construction Loans Payable .................. -- -- 4,873
Repayment of Construction Loans Payable ................... -- (4,873) --
Repayment of Promissory Notes Payable ..................... (9,919) -- --
Cost of Debt Issuance and Retirement of Debt .............. (11,668) (3,158) (4,373)
--------- --------- ---------
Net Cash Provided by Financing Activities ............. 708,446 176,677 45,420
--------- --------- ---------
Net Increase (Decrease) in Cash and Cash Equivalents ...... 5,576 (1,273) (198)
Cash and Cash Equivalents, Beginning of Period ............ 7,646 8,919 9,117
--------- --------- ---------
Cash and Cash Equivalents, End of Period .................. $ 13,222 $ 7,646 $ 8,919
========= ========= =========
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-6
<PAGE> 51
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
1. ORGANIZATION AND FORMATION OF COMPANY
First Industrial Realty Trust, Inc. was organized in the state of
Maryland on August 10, 1993. First Industrial Realty Trust, Inc. is a real
estate investment trust ("REIT") as defined in the Internal Revenue Code. First
Industrial Realty Trust, Inc. and its subsidiaries (as discussed below) (the
"Company") is continuing and expanding the midwestern industrial property
business of The Shidler Group and the properties and businesses contributed by
three other contributing businesses (the "Contributing Businesses").
The Company began operations on July 1, 1994. The Company's operations
are conducted primarily through First Industrial, L.P. (the "Operating
Partnership") of which the Company is the sole general partner. As of December
31, 1997, the Company owned 769 in-service properties located in 22 states,
containing an aggregate of approximately 56.6 million square feet (unaudited) of
gross leasable area ("GLA"). Of the 769 properties owned by the Company, 193 are
held by First Industrial Financing Partnership, L.P. (the "Financing
Partnership"), 522 are held by the Operating Partnership, six are held by First
Industrial Pennsylvania, L.P. (the "Pennsylvania Partnership"), five are held by
First Industrial Harrisburg, L.P. (the "Harrisburg Partnership"), 19 are held by
First Industrial Securities, L.P. (the "Securities Partnership"), 23 are held by
First Industrial Mortgage Partnership, L.P. (the "Mortgage Partnership") and one
is held by First Industrial Indianapolis, L.P.
(the "Indianapolis Partnership").
2. BASIS OF PRESENTATION
First Industrial Realty Trust, Inc. is the sole general partner of the
Operating Partnership, with an approximate 86.0% ownership interest at December
31, 1997. Minority interest at December 31, 1997, represents the approximately
14.0% aggregate partnership interest in the Operating Partnership held by the
limited partners thereof. First Industrial Realty Trust, Inc. is the sole
stockholder of First Industrial Finance Corporation, First Industrial
Pennsylvania Corporation, First Industrial Harrisburg Corporation, First
Industrial Securities Corporation, First Industrial Mortgage Corporation, First
Industrial Indianapolis Corporation and FI Development Services Corporation,
which are the sole general partners of the Financing Partnership, the
Pennsylvania Partnership, the Harrisburg Partnership, the Securities
Partnership, the Mortgage Partnership, the Indianapolis Partnership, and First
Industrial Development Services, L.P., respectively. The Operating Partnership
is the sole limited partner of the Financing Partnership, the Pennsylvania
Partnership, the Harrisburg Partnership, the Securities Partnership, the
Mortgage Partnership, the Indianapolis Partnership, and First Industrial
Development Services, L.P. The Operating Partnership is also the sole member of
FR Development Services, LLC, and the majority stockholder of First Industrial
Enterprises of Michigan and FR Development Services, Inc. The consolidated
financial statements of the Company at December 31, 1997 and 1996 and for each
of the three years ended December 31, 1997 include the accounts and operations
of the Company and its subsidiaries.
All significant intercompany transactions have been eliminated in consolidation.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
In order to conform with generally accepted accounting principles,
management, in preparation of the Company's financial statements, is required to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities as of December
31, 1997 and 1996, and the reported amounts of revenues and expenses for the
years ended December 31, 1997, 1996 and 1995. Actual results could differ from
those estimates.
F-7
<PAGE> 52
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
Cash and Cash Equivalents:
Cash and cash equivalents include all cash and liquid investments with
an initial maturity of three months or less. The carrying amount approximates
fair value due to the short maturity of these investments.
Investment in Real Estate and Depreciation:
Purchase accounting has been applied when ownership interests in
properties were acquired for cash. The historical cost basis of properties has
been carried over when the Contributing Businesses' ownership interests were
exchanged for Operating Partnership units on July 1, 1994 and purchase
accounting has been used for all other properties that were subsequently
acquired for Operating Partnership units.
The Company reviews its properties on a quarterly basis for impairment
and provides a provision if impairments are determined. First, to determine if
impairment may exist, the Company reviews its properties and identifies those
which have had either an event of change or event of circumstances warranting
further assessment of recoverability. Then, the Company estimates the fair value
of those properties on an individual basis by capitalizing the expected net
operating income.
Such amounts are then compared to the property's depreciated cost to determine
whether an impairment exists.
Interest expense, real estate taxes and other directly related expenses
incurred during construction periods are capitalized and depreciated commencing
with the date placed in service, on the same basis as the related assets.
Depreciation expense is computed using the straight-line method based on the
following useful lives:
<TABLE>
<CAPTION>
Years
----------
<S> <C>
Buildings and Improvements.............. 31.5 to 40
Land Improvements....................... 15
Furniture, Fixtures and Equipment....... 5 to 10
</TABLE>
Construction expenditures for tenant improvements and leasing
commissions are capitalized and amortized over the terms of each specific lease.
Repairs and maintenance are charged to expense when incurred. Expenditures for
improvements are capitalized.
When assets are sold or retired, their costs and related accumulated
depreciation are removed from the accounts with the resulting gains or losses
reflected in net income or loss.
Deferred Financing Costs:
Deferred financing costs include fees and costs incurred to obtain
long-term financing. These fees and costs are being amortized over the terms of
the respective loans. Accumulated amortization of deferred financing costs was
$1,672 and $4,549 at December 31, 1997 and 1996, respectively. Unamortized
deferred financing fees are written-off when debt is retired before the maturity
date (see Note 9).
F-8
<PAGE> 53
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
Revenue Recognition:
Rental income is recognized on a straight-line method under which
contractual rent increases are recognized evenly over the lease term. Tenant
recovery income includes payments from tenants for taxes, insurance and other
property operating expenses and is recognized as revenues in the same period the
related expenses are incurred by the Company.
The Company provides an allowance for doubtful accounts against the
portion of tenant accounts receivable which is estimated to be uncollectible.
Accounts receivable in the consolidated balance sheets are shown net of an
allowance for doubtful accounts of $1,450 and $600 as of December 31, 1997 and
December 31, 1996, respectively.
Income Taxes:
The Company has elected to be taxed as a REIT under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the "Code"). As a
result, the Company generally is not subject to federal income taxation at the
corporate level to the extent it distributes annually at least 95% of its REIT
taxable income, as defined in the Code, to its stockholders and satisfies
certain other requirements. Accordingly, no provision has been made for federal
income taxes in the accompanying consolidated financial statements.
The Company and certain of its subsidiaries are subject to certain
state and local income, excise and franchise taxes. The provision for such state
and local taxes has been reflected in general and administrative expense in the
consolidated statements of operations and has not been separately stated due to
its insignificance.
For federal income tax purposes, the cash distributions paid to
stockholders may be characterized as ordinary income, return of capital
(generally non-taxable) or capital gains. Distributions paid for the year ended
December 31, 1997, totaling $65,322, are characterized 62.30% ($1.274 per share)
as ordinary income, 35.60% ($.728 per share) as return of capital and 2.10%
($.043 per share) as 28% long-term capital gain. Distributions paid for the year
ended December 31, 1996 totaling $50,418 are characterized 65.97% ($1.300 per
share) as ordinary income and 34.03% ($.670 per share) as return of capital.
Distributions paid for the year ended December 31, 1995 totaling $36,003 are
characterized 40.17% ($.765 per share) as ordinary income and 59.83% ($1.140 per
share) as return of capital.
Earnings Per Common Share:
The Company has adopted the Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 128, "Earnings Per Share" ("FAS
128"). Net income per weighted average share - basic is based on the weighted
average common shares outstanding. Net income per weighted average share -
diluted is based on the weighted average common shares outstanding plus the
effect of in-the-money employee stock options. See Note 10 for the disclosure
required under FAS 128.
Fair Value of Financial Instruments:
The Company's financial instruments include short-term investments,
tenant accounts receivable, accounts payable, other accrued expenses, mortgage
loans payable, acquisition facilities payable, senior unsecured debt and
interest rate protection agreements. The fair value of the short-term
investments, tenant accounts receivable, accounts payable and other accrued
expenses were not materially different from their carrying or contract values.
F-9
<PAGE> 54
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, CONTINUED
See Note 4 for the fair values of the mortgage loans payable, acquisition
facilities payable, senior unsecured debt and interest rate protection
agreements.
Derivative Financial Instruments:
The Company's interest rate protection agreements (the "Agreements")
are used to limit the interest rate on the Company's $300,000 mortgage loan and
fix the interest rate on anticipated offerings of senior unsecured debt.
Receipts or payments resulting from the Agreements used to limit the interest
rate on the Company's $300,000 mortgage loan are recognized as adjustments to
interest expense. In the event that the Company terminates these Agreements, the
Company would recognize a gain (loss) from the disposition of the Agreements
equal to the amount of cash received or paid at termination less the carrying
value of the Agreements on the Company's balance sheet. Receipts or payments
resulting from the settlement of Agreements used to fix the interest rate on
anticipated offerings of senior unsecured debt are amortized over the life of
the senior unsecured debt that the Agreements were used to hedge as an
adjustment to interest expense using the effective interest method (or the
straight line method if this method is not materially different from the
effective interest method). The credit risks associated with the Agreements are
controlled through the evaluation and monitoring of the creditworthiness of the
counterparty. In the event that the counterparty fails to meet the terms of the
Agreements, the Company's exposure is limited to the current value of the
interest rate differential, not the notional amount, and the Company's carrying
value of the Agreements on the balance sheet. The Agreements have been executed
with creditworthy financial institutions. As such, the Company considers the
risk of nonperformance to be remote.
Recent Accounting Pronouncements:
In June 1997, the FASB issued Statement of Financial Accounting
Standards No. 130, "Reporting Comprehensive Income." This statement, effective
for fiscal years beginning after December 15, 1997, requires the Company to
report components of comprehensive income in a financial statement that is
displayed with the same prominence as other financial statements. Comprehensive
income is defined by Concepts Statement No. 6, " Elements of Financial
Statements" as the change in the equity of a business enterprise during a period
from transactions and other events and circumstances from non-owner sources. It
includes all changes in equity during a period except those resulting from
investments by owners and distributions to owners. The Company has not yet
determined its comprehensive income.
In June 1997, the FASB issued Statement of Financial Accounting
Standards No. 131, " Disclosures about Segments of an Enterprise and Related
Information." This statement, effective for financial statements for periods
beginning after December 15, 1997, requires that a public business enterprise
report financial and descriptive information about its reportable operating
segments. Generally, financial information is required to be reported on the
basis that it is used internally for evaluating segment performance and deciding
how to allocate resources to segments. The Company has not yet determined the
impact of this statement on its financial statements.
Reclassification:
Certain 1996 items have been reclassified to conform to the 1997
presentation.
F-10
<PAGE> 55
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS
Mortgage Loans:
On June 30, 1994, the Company, through the Financing Partnership,
entered into a $300,000 mortgage loan (the "1994 Mortgage Loan"). On April 4,
1997, the Company purchased U.S. Government securities as substitute collateral
to execute a legal defeasance of the $300,000 mortgage loan (the "1994 Defeased
Mortgage Loan") (See Note 9). Upon the execution of the legal defeasance, 180 of
the 195 properties collateralizing the 1994 Defeased Mortgage Loan were released
leaving 15 properties and the U.S. Government securities as collateral. On
January 2, 1998, the Company used the gross proceeds from the maturity of the
U.S. Government securities to pay off and retire the 1994 Defeased Mortgage
Loan. Due to the retirement of the 1994 Defeased Mortgage Loan, the remaining 15
properties were released on January 2, 1998. The 1994 Defeased Mortgage Loan
provided for interest only payments at a floating interest rate of LIBOR plus
1.40% which such interest rate had been limited to 7.2% from June 30, 1994
through June 30, 1995 through the use of the 1994 Interest Rate Protection
Agreement (hereinafter defined). From July 1, 1995 through May 15, 1997, the
1994 Defeased Mortgage Loan's interest rate had been effectively fixed at the
rate of 6.97% through the use of the 1995 Interest Rate Protection Agreements
(hereinafter defined). From May 16, 1997 through December 31, 1997, the 1994
Defeased Mortgage Loan's interest rate had been limited to 7.2% through the use
of the 1997 Interest Rate Protection Agreement (hereinafter defined).
Under the terms of the 1994 Defeased Mortgage Loan, certain cash
reserves were required to be and had been set aside for payment of tenant
improvements, capital expenditures, interest, real estate taxes, insurance and
potential environmental costs as well as certain other cash reserves to pay off
and retire the 1994 Defeased Mortgage Loan. The amount of cash reserves for
payment of potential environmental costs was determined by the lender and was
established at the closing of the 1994 Defeased Mortgage Loan. The amounts
included in the cash reserves relating to payments of tenant improvements,
capital expenditures, interest, real estate taxes and insurance were determined
by the lender and approximated the next periodic payment of such items. At
December 31, 1997 and 1996, these reserves totaled $310,943 and $10,223,
respectively, and are included in Restricted Cash. Such cash reserves were
invested in a money market fund at December 31, 1997. The maturity of these
investments is one day; accordingly, cost approximates fair market value. On
January 2, 1998, $300,000 of these cash reserves were used to pay down and
retire the 1994 Defeased Mortgage Loan, $6,000 of these cash reserves were used
to pay a prepayment fee on the 1994 Defeased Mortgage Loan and the remaining
cash reserves were returned to the Company.
On December 29, 1995, the Company, through the Mortgage Partnership,
entered into a $40,200 mortgage loan (the"1995 Mortgage Loan"). In the first
quarter of 1996, the Company made a one time paydown of $200 on the 1995
Mortgage Loan which decreased the outstanding balance to $40,000. The 1995
Mortgage Loan matures on January 11, 2026 and provides for interest only
payments through January 11, 1998, after which monthly principal and interest
payments are required based on a 28-year amortization schedule. The interest
rate under the 1995 Mortgage Loan is fixed at 7.22% per annum through January
11, 2003. After January 11, 2003, the interest rate adjusts through a
predetermined formula based on the applicable Treasury rate. The 1995 Mortgage
Loan is collateralized by 23 properties held by the Mortgage Partnership. The
1995 Mortgage Loan may be prepaid after January 11, 2003.
Under the terms of the 1995 Mortgage Loan, certain cash reserves are
required to be and have been set aside for refunds of security deposits and
payments of capital expenditures, interest, real estate taxes and insurance. The
amount of cash reserves segregated for security deposits is adjusted as tenants
turn over. The amounts included in the cash reserves relating to payments of
capital expenditures, interest, real estate taxes and insurance were determined
by the lender and approximate the next periodic payment of such items. At
December 31, 1997 and 1996, these reserves totaled $2,117 and $1,614,
respectively, and are included in Restricted Cash. Such cash reserves
F-11
<PAGE> 56
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
were invested in a money market fund at December 31, 1997. The maturity of these
investments is one day; accordingly, cost approximates fair market value.
On December 14, 1995, the Company, through First Industrial Harrisburg,
L.P., entered into a $6,650 mortgage loan (the "Harrisburg Mortgage Loan") that
was collateralized by first mortgage liens on three properties in Harrisburg,
Pennsylvania. The Harrisburg Mortgage Loan bore interest at a rate based on
LIBOR plus 1.5% or prime plus 2.25%, at the Company's option, and provided for
interest only payments through May 31, 1996, with monthly principal and interest
payments required subsequently based on a 26.5-year amortization schedule. On
December 15, 1997, the Company paid off and retired the Harrisburg Mortgage Loan
(see Note 9).
On March 20, 1996, the Company, through the Operating Partnership, and
the Indianapolis Partnership, entered into a $36,750 mortgage loan (the "CIGNA
Loan") that is collateralized by seven properties in Indianapolis, Indiana and
three properties in Cincinnati, Ohio. The CIGNA Loan bears interest at a fixed
interest rate of 7.50% and provides for monthly principal and interest payments
based on a 25-year amortization schedule. The CIGNA Loan matures on April 1,
2003. The CIGNA Loan may be prepaid only after April 30, 1999 in exchange for
the greater of a 1% prepayment fee or a yield maintenance premium.
On March 20, 1996, the Company, through the Operating Partnership,
assumed a $6,424 mortgage loan and a $2,993 mortgage loan (together, the
"Assumed Loans") that are collateralized by 13 properties in Indianapolis,
Indiana and one property in Indianapolis, Indiana, respectively. The Assumed
Loans bear interest at a fixed rate of 9.25% and provide for monthly principal
and interest payments based on a 16.75-year amortization schedule. The Assumed
Loans mature on January 1, 2013. The Assumed Loans may be prepaid only after
December 22, 1999 in exchange for the greater of a 1% prepayment fee or a yield
maintenance premium.
In conjunction with an acquisition of a portfolio of properties on
January 31, 1997, the Company, through the Operating Partnership, assumed two
mortgage loans in the amount of $3,800 (the "LB Mortgage Loan I") and $705 (the
"LB Mortgage Loan II"). The LB Mortgage Loan I, which was collateralized by a
property located in Long Island, New York and provided for interest only
payments prior to its maturity date of July 11, 1998, was paid off and retired
by the Company on December 19, 1997 (see Note 9). The LB Mortgage Loan II, which
is collateralized by a property located in Long Island, New York, is interest
free until February, 1998, at which time the LB Mortgage Loan II bears interest
at 8.00% and provides for interest only payments prior to maturity. The LB
Mortgage Loan II matures 180 days after the completion of a contingent event
relating to the environmental status of the property collateralizing the loan.
In conjunction with the acquisition of a portfolio of properties on
October 23, 1997, the Company, through the Operating Partnership, assumed a
mortgage loan in the amount of $4,153 (the "Acquisition Mortgage Loan I"). The
Acquisition Mortgage Loan I is collateralized by a property in Bensenville,
Illinois, bears interest at a fixed rate of 8.50% and provides for monthly
principal and interest payments based on a 15-year amortization schedule. The
Acquisition Mortgage Loan I matures on August 1, 2008. The Acquisition Mortgage
Loan I may be prepaid after July 15, 1998 in exchange for a prepayment fee.
In conjunction with the acquisition of a portfolio of properties on
December 9, 1997, the Company, through the Operating Partnership, assumed a
mortgage loan in the amount of $7,997 (the "Acquisition Mortgage Loan II"). The
Acquisition Mortgage Loan II is collateralized by ten properties in St. Charles,
Louisiana, bears interest at a fixed
F-12
<PAGE> 57
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
rate of 7.75% and provides for monthly principal and interest payments based on
a 22-year amortization schedule. The Acquisition Mortgage Loan II matures on
April 1, 2006. The Acquisition Mortgage Loan II may be prepaid only after April
9, 1999 in exchange for the greater of a 1% prepayment fee or a yield
maintenance premium.
In conjunction with the acquisition of a portfolio of properties on
December 23, 1997, the Company, through the Operating Partnership, assumed a
mortgage loan in the amount of $3,598 (the "Acquisition Mortgage Loan III"). The
Acquisition Mortgage Loan III is collateralized by two properties in Houston,
Texas, bears interest at a fixed interest rate of 8.875% and provides for
monthly principal and interest payments based on a 20-year amortization
schedule. The Acquisition Mortgage Loan III matures on June 1, 2003. The
Acquisition Mortgage Loan III may be prepaid only after June 30, 1998 in
exchange for the greater of a 2% prepayment fee or a yield maintenance premium.
Senior Unsecured Debt:
On April 4, 1997, the Company, through the Operating Partnership,
entered into a $309,800 unsecured loan (the "Defeasance Loan"). The Defeasance
Loan bore interest at LIBOR plus 1% and had a scheduled maturity of July 1,
1999. The gross proceeds from the Defeasance Loan were used to purchase U.S.
Government Securities as substitute collateral to execute a legal defeasance of
the 1994 Defeased Mortgage Loan. The Defeasance Loan was paid off and retired in
May, 1997 (See Note 9).
On May 13, 1997, the Company, through the Operating Partnership, issued
$150,000 of senior unsecured debt which matures on May 15, 2007 and bears a
coupon interest rate of 7.60% (the "2007 Notes"). The issue price of the 2007
Notes was 99.965%. Interest is paid semi-annually in arrears on May 15 and
November 15. The Company also entered into an interest rate protection agreement
which was used to fix the interest rate on the 2007 Notes prior to issuance. The
debt issue discount and the settlement amount of the interest rate protection
agreement are being amortized over the life of the 2007 Notes as an adjustment
to the interest expense. The 2007 Notes contain certain covenants including
limitation on incurrence of debt and debt service coverage.
On May 13, 1997, the Company, through the Operating Partnership, issued
$100,000 of senior unsecured debt which matures on May 15, 2027, and bears a
coupon interest rate of 7.15% (the "2027 Notes"). The issue price of the 2027
Notes was 99.854%. The 2027 Notes are redeemable, at the option of the holders
thereof, on May 15, 2002. Interest is paid semi-annually in arrears on May 15
and November 15. The Company also entered into an interest rate protection
agreement which was used to fix the interest rate on the 2027 Notes prior to
issuance. The debt issue discount and the settlement amount of the interest rate
protection agreement are being amortized over the life of the 2027 Notes as an
adjustment to interest expense. The 2027 Notes contain certain covenants
including limitation on incurrence of debt and debt service coverage.
On May 22, 1997, the Company, through the Operating Partnership, issued
$100,000 of senior unsecured debt which matures on May 15, 2011 and bears a
coupon interest rate of 7.375% (the "2011 Notes"). The issue price of the 2011
Notes was 99.348%. Interest is paid semi-annually in arrears on May 15 and
November 15. The 2011 Notes are redeemable, at the option of the holder thereof,
on May 15, 2004 (the "Put Option"). The Company received approximately $1,781 of
proceeds from the holder of the 2011 Notes as consideration for the Put Option.
The Company amortizes the Put Option amount over the life of the Put Option as
an adjustment to interest expense. The Company also entered into an interest
rate protection agreement which was used to fix the interest rate on the 2011
Notes prior to issuance. The debt issue discount and the settlement amount of
the interest rate protection
F-13
<PAGE> 58
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
agreement are being amortized over the life of the 2011 Notes as an adjustment
to interest expense. The 2011 Notes contain certain covenants including
limitation on incurrence of debt and debt service coverage.
On November 20, 1997, the Company, through the Operating Partnership,
issued $50,000 of senior unsecured debt which matures on November 21, 2005 and
bears a coupon interest rate of 6.90% (the "2005 Notes"). The issue price of the
2005 Notes was 100%. Interest is paid semi-annually in arrears on May 21 and
November 21. The 2005 Notes contain certain covenants including limitation on
incurrence of debt and debt service coverage.
On November 24, 1997, the Company, through the Operating Partnership,
entered into a $25,000 unsecured loan (the "November 1997 Unsecured Loan"). The
November 1997 Unsecured Loan bore interest at LIBOR plus .80% and had a
scheduled maturity date of December 31, 1997. The November 1997 Unsecured Loan
was paid off and retired on December 5, 1997 (see Note 9).
On December 8, 1997, the Company, through the Operating Partnership,
issued $150,000 of senior unsecured debt which matures on December 1, 2006 and
bears a coupon interest rate of 7.00% (the "2006 Notes"). The issue price of the
2006 Notes was 100%. Interest is paid semi-annually in arrears on June 1 and
December 1. The Company also entered into an interest rate protection agreement
which was used to fix the interest rate on the 2006 Notes prior to issuance. The
settlement amount of the interest rate protection agreement is being amortized
over the life of the 2006 Notes as an adjustment to interest expense.
The 2006 Notes contain certain covenants including limitation on incurrence of
debt and debt service coverage.
On December 8, 1997, the Company, through the Operating Partnership,
issued $100,000 of unsecured debt which matures on December 1, 2017 and bears a
coupon interest rate of 7.50% (the "2017 Notes"). The issue price of the 2017
Notes was 99.808%. Interest is paid semi-annually in arrears on June 1 and
December 1. The Operating Partnership will amortize the debt issue discount over
the life of the 2017 Notes as an adjustment to interest expense. The 2017 Notes
may be redeemed at any time at the option of the Company, in whole or in part,
at a redemption price equal to the sum of the principal amount of the 2017 Notes
being redeemed plus accrued interest thereon to the redemption date and any
make-whole amount, as defined in the Prospectus Supplement relating to the 2017
Notes.
Acquisition Facilities:
In connection with the Initial Offering, the Company, through the
Operating Partnership, entered into a $100,000 collateralized revolving credit
facility (the "1994 Acquisition Facility"). During the quarter ended June 30,
1995, the capacity of the 1994 Acquisition Facility was increased to $150,000.
Borrowings under the 1994 Acquisition Facility bore interest at a floating rate
equal to LIBOR plus 2.00% or a "Corporate Base Rate" plus .50%, at the Company's
election. Effective July 12, 1996, the lenders reduced the interest rate to
LIBOR plus 1.75%. In December 1996, the Company terminated the 1994 Acquisition
Facility (see Note 9) and entered into a $200,000 unsecured revolving credit
facility (the "1996 Unsecured Acquisition Facility") which initially bore
interest at LIBOR plus 1.10% or a "Corporate Base Rate" plus .25% and provided
for interest only payments until the maturity date. In December 1997, the
Company terminated the 1996 Unsecured Acquisition Facility (see Note 9) and
entered into a $300,000 unsecured revolving credit facility (the "1997 Unsecured
Acquisition Facility") which initially bears interest at LIBOR plus .80% or a
"Corporate Base Rate" at the Company's election, and provides for interest only
payments until maturity. The Company may borrow under the facility to finance
the acquisition of additional properties and for other corporate purposes,
including to obtain additional working capital. The 1997 Unsecured Acquisition
Facility contains certain financial covenants relating to debt service coverage,
market value net worth, dividend payout ratio and total funded indebtedness.
F-14
<PAGE> 59
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
In December 1995, the Company, through the Operating Partnership,
entered into a $24,219 collateralized revolving credit facility (the "1995
Credit Line"). The 1995 Credit Line bore interest at a floating rate of LIBOR
plus 2.45%. The Company terminated the 1995 Credit Line in February 1996 (See
Note 9).
In May 1996, the Company, through the Operating Partnership, entered
into a $10,000 collateralized revolving credit facility (the "1996 Credit
Line"). The 1996 Credit Line bore interest at a floating rate from LIBOR plus
2.45% to LIBOR plus 2.75%, depending on the term of the interest rate option.
The Company terminated the 1995 Credit Line in November 1996 (See Note 9).
In September 1996, the Company, through the Operating Partnership,
entered into a $40,000 revolving credit facility ("1996 Acquisition Facility").
Borrowings under the 1996 Acquisition Facility bore interest at a floating rate
equal to LIBOR plus 2.00% or a "Corporate Base Rate" plus .50%, at the Company's
election. The Company terminated the 1996 Acquisition Facility in November 1996
(see Note 9).
Promissory Notes Payable:
On September 30, 1996, the Company, through the Operating Partnership,
entered into a $6,489 promissory note and a $3,430 promissory note (collectively
referred to as "Promissory Notes") as partial consideration for the purchase of
two properties in Columbus, Ohio. Both Promissory Notes bore interest at 8.00%.
The Promissory Notes were paid off and retired on January 6, 1997.
F-15
<PAGE> 60
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
The following table discloses certain information regarding the
Company's mortgage loans, senior unsecured debt, acquisition facility and
promissory notes payable:
<TABLE>
<CAPTION>
OUTSTANDING BALANCE ACCRUED INTEREST INTEREST
AT PAYABLE AT RATE AT
--------------------- --------------------- ----------
DECEMBER DECEMBER DECEMBER DECEMBER DECEMBER MATURITY
31, 1997 31, 1996 31, 1997 31, 1996 31, 1997 DATE
--------- --------- --------- --------- ---------- ----------
MORTGAGE LOANS PAYABLE
<S> <C> <C> <C> <C> <C> <C>
1994 Mortgage Loan ..... $ -- $ 300,000 $ -- $ 1,750 N/A N/A
--------- --------- --------- ---------
1995 Mortgage Loan ..... 40,000 40,000 168 168 7.22% 1/11/26
Harrisburg Mortgage Loan -- 6,504 -- 39 N/A N/A
CIGNA Loan ............. 35,813 36,363 -- -- 7.50% 4/01/03
Assumed Loans .......... 8,950 9,215 -- -- 9.25% 1/01/13
LB Mortgage Loan II .... 705 -- -- -- (1) (1)
Acquisition Mortgage
Loan I ............... 4,135 -- 29 -- 8.50% 8/01/08
Acquisition Mortgage
Loan II .............. 7,997 -- 52 -- 7.75% 4/01/06
Acquisition Mortgage
Loan III ............. 3,598 -- 27 -- 8.875% 6/01/03
--------- --------- --------- ---------
Total .................. $ 101,198 $ 392,082 $ 276 $ 1,957
========= ========= ========= =========
DEFEASED MORTGAGE LOAN
1994 Defeased Mortgage
Loan (formerly definedas
the 1994 Mortgage Loan . $ 300,000 -- 1,831 -- 7.09% 1/02/98
========= ========= ========= =========
SENIOR UNSECURED DEBT
2005 Notes ............. $ 50,000 $ -- $ 393 $ -- 6.90% 11/21/05
2006 Notes ............. 150,000 -- 671 -- 7.00% 12/01/06
2007 Notes ............. 149,951(2) -- 1,457 -- 7.60% 5/15/07
2011 Notes ............. 99,377(2) -- 942 -- 7.375% 5/15/11(3)
2017 Notes ............. 99,809(2) -- 479 -- 7.50% 12/01/17(4)
2027 Notes ............. 99,857(2) -- 914 -- 7.15% 5/15/27(5)
--------- --------- --------- ---------
Total .................. $ 648,994 $ -- $ 4,856 $ --
========= ========= ========= =========
ACQUISITION FACILITY
PAYABLE
1996 Unsecured
Acquisition Facility .. $ -- $ 4,400 $ -- $ 3 N/A N/A
1997 Unsecured
Acquisition Facility .. 129,400 -- 297 -- 6.77% 4/30/01
--------- --------- --------- ---------
Total .................. $ 129,400 $ 4,400 $ 297 $ 3
========= ========= ========= =========
PROMISSORY NOTES PAYABLE
Promissory Notes ....... $ -- $ 9,919 $ -- $ 68 N/A N/A
========= ========= ========= =========
</TABLE>
(1) The LB Mortgage Loan II is interest free until February 1998 at which
time the mortgage loan bears interest at 8%. The loan matures as
described above.
(2) The 2007 Notes, 2011 Notes, 2017 Notes and 2027 Notes are net of
unamortized discounts of $49, $623, $191 and $143, respectively.
(3) The 2011 Notes are redeemable at the option of the holder thereof, on
May 15, 2004.
(4) The 2017 notes are redeemable at the option of the Company at any time
based upon a predetermined formula.
(5) The 2027 Notes are redeemable at the option of the holders thereof, on
May 15, 2002.
F-16
<PAGE> 61
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
Fair Value:
At December 31, 1996 the fair value of the Company's mortgage loans
payable, acquisition facility payable and promissory notes payable were not
materially different from their carrying values. The value of the interest rate
protection agreements was approximately $7,959. At December 31, 1997, the fair
value of the Company's mortgage loans payable, senior unsecured debt,
acquisition facility payable and interest rate protection agreements were as
follows:
<TABLE>
<CAPTION>
Carrying Fair
Amount Value
----------- -----------
<S> <C> <C>
Mortgage Loans Payable . $ 101,198 $ 105,838
Defeased Mortgage Loan
Payable ................ 300,000 300,000
Senior Unsecured Debt .. 648,994 666,954
Acquisition Facility ... 129,400 129,400
Payable ................
Interest Rate Protection
Agreements ............. -- (4,974)
----------- -----------
Total .................. $ 1,179,592 $ 1,197,218
=========== ===========
</TABLE>
The following is a schedule of maturities of the mortgage loans, senior
unsecured debt and acquisition facility payable for the next five years ending
December 31, and thereafter:
<TABLE>
<CAPTION>
Amount
-----------
<S> <C>
1998 $ 301,843
1999 2,036
2000 2,203
2001 131,764
2002 2,559
Thereafter 739,488
----------
Total $1,179,893
==========
</TABLE>
The above table presents the 1994 Defeased Mortgage Loan maturing in
1998 due to its prepayment on January 2, 1998.
Interest Rate Protection Agreements:
In conjunction with obtaining the 1994 Mortgage Loan, the Company,
through the Financing Partnership, purchased an interest rate protection
agreement (the "1994 Interest Rate Protection Agreement") which effectively
limited the interest rate during the initial five-year term of the 1994 Mortgage
Loan to 7.20% per annum. Prior to the subsequent replacement of the 1994
Interest Rate Protection Agreement, its cost of $18,450 had been capitalized and
was being amortized over the five-year term of the agreement. Effective July 1,
1995, the Company replaced the 1994 Interest Rate Protection Agreement with new
interest rate protection agreements and entered into interest rate swap
agreements (together, the "1995 Interest Rate Protection Agreements") with a
notional value of $300,000, which together effectively fixed the annual interest
rate on the 1994 Mortgage Loan at 6.97% for six years through June 30, 2001. As
a result of the replacement of the interest rate protection agreement, the
Company incurred a one-time loss of $6,400. The costs of the 1995 Interest Rate
Protection Agreements had been capitalized and were being amortized over the
respective terms of the 1995 Interest Rate Protection Agreements. On May 16,
1997, the
F-17
<PAGE> 62
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
4. MORTGAGE LOANS, SENIOR UNSECURED DEBT, ACQUISITION FACILITIES, PROMISSORY
NOTES PAYABLE AND INTEREST RATE PROTECTION AGREEMENTS, CONTINUED
Company sold the 1995 Interest Rate Protection Agreements and entered into a new
interest rate protection agreement (the "1997 Interest Rate Protection
Agreement") at a cost of $150 with a notional value of $300,000 which expired at
the end of 1997. The 1997 Interest Rate Protection Agreement effectively limited
the interest rate on the 1994 Defeased Mortgage Loan to 7.20% until December 31,
1997. The cost of the 1997 Interest Rate Protection Agreement had been
capitalized and was being amortized on a straight-line basis over the remaining
life of the 1997 Interest Rate Protection Agreement. Accumulated amortization on
the interest rate protection agreements was $223 as of December 31, 1996. As of
December 31, 1997 the interest rate protection agreements were fully amortized
and written off.
The Company, from time to time, enters into interest rate protection
agreements which are used to lock into a fixed interest rate on anticipated
offerings of senior unsecured debt. At December 31, 1997, the following interest
rate protection agreements were outstanding:
<TABLE>
<CAPTION>
Notional Value Interest Rate Valuation Basis Settlement Date
- -------------- ------------- ---------------- ---------------
<S> <C> <C> <C>
$100,000 6.037% 10-Year Treasury July 1, 1998
$100,000 6.317% 30-Year Treasury July 1, 1998
$100,000 5.999% 30-Year Treasury January 4, 1999
</TABLE>
5. STOCKHOLDERS' EQUITY
Common Stock:
On February 2, 1996, the Company issued 5,175,000 shares of $.01 par
value common stock (the "February 1996 Equity Offering") inclusive of the
underwriters' over-allotment option. The price per share in the February 1996
Equity Offering was $22, resulting in gross offering proceeds of $113,850.
Proceeds to the Company, net of underwriters' discount and total offering
expenses, were approximately $106,343.
On October 25, 1996, the Company issued 5,750,000 shares of $.01 par
value common stock (the "October 1996 Equity Offering") inclusive of the
underwriters' over-allotment option. The price per share in the October 1996
Equity Offering was $25.50, resulting in gross offering proceeds of $146,625.
Proceeds to the Company, net of underwriters' discount and total offering
expenses, were approximately $137,697.
On September 16, 1997, the Company issued 637,440 shares of $.01 par
value common stock (the "September 1997 Equity Offering"). The price per share
in the September 1997 Equity Offering was $31.38, resulting in gross offering
proceeds of $20,000. Proceeds to the Company, net of underwriters' discount and
total offering expenses, were approximately $18,900.
On October 15, 1997, the Company issued 5,400,000 shares of $.01 par
value common stock (the "October 1997 Equity Offering"). The price per share was
$33.40 resulting in gross offering proceeds of $180,360. Proceeds to the
Company, net of underwritings' discount and the total offering expenses, were
approximately $176,556.
F-18
<PAGE> 63
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
5. STOCKHOLDERS' EQUITY, CONTINUED
Preferred Stock:
In 1995, the Company issued 1,650,000 shares of 9.5%, $.01 par value,
Series A Cumulative Preferred Stock (the "Series A Preferred Stock") at an
initial offering price of $25 per share. Dividends on the Series A Preferred
Stock are cumulative from the date of initial issuance and are payable quarterly
in arrears. The payment of dividends and amounts upon liquidation, dissolution
or winding-up ranks senior to the payments on the Company's $.01 par value
common stock ("Common Stock"). The Series A Preferred Stock is not redeemable
prior to November 17, 2000. On or after November 17, 2000, the Series A
Preferred Stock is redeemable for cash at the option of the Company, in whole or
in part, at $25.00 per share, or $41,250 in the aggregate, plus dividends
accrued and unpaid to the redemption date. The Series A Preferred Stock has no
stated maturity and is not convertible into any other securities of the Company.
The payment of dividends on, and payments on liquidation or redemption
of, the Series A Preferred Stock is guaranteed by the Securities Partnership
(the "Guarantor") pursuant to a Guarantee and Payment Agreement (the "Guarantee
Agreement"). The Series A Preferred Stock is the only class of securities of the
Company which has the benefit of such guarantee. To the extent the Company fails
to make any payment of dividend or pay any portion of the liquidation preference
on or the redemption price of any shares of Series A Preferred Stock, the
Guarantor will be obligated to pay an amount to each holder of Series A
Preferred Stock equal to any such shortfall.
On May 14, 1997, the Company issued 4,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 8 3/4%, $.01 par value, Series
B Cumulative Preferred Stock (the "Series B Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series B Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series B Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock and Series C
Preferred Stock (hereinafter defined). The Series B Preferred Stock is not
redeemable prior to May 14, 2002. On or after May 14, 2002, the Series B
Preferred Stock is redeemable for cash at the option of the Company, in whole or
in part, at a redemption price equivalent to $25 per Depositary Share, or
$100,000 in the aggregate, plus dividends accrued and unpaid to the redemption
date. The Series B Preferred Stock has no stated maturity and is not convertible
into any other securities of the Company.
On June 6, 1997, the Company issued 2,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 8 5/8%, $.01 par value, Series
C Cumulative Preferred Stock (the "Series C Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series C Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series C Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock and Series B
Preferred Stock. The Series C Preferred Stock is not redeemable prior to June 6,
2007. On or after June 6, 2007, the Series C Preferred Stock are redeemable for
cash at the option of the Company, in whole or in part, at a redemption price
equivalent to $25 per Depositary Share, or $50,000 in the aggregate, plus
dividends accrued and unpaid to the redemption date. The Series C Preferred
Stock has no stated maturity and is not convertible into any other securities of
the Company.
F-19
<PAGE> 64
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
5. STOCKHOLDERS' EQUITY, CONTINUED
The following table summarizes certain information regarding the
Company's preferred stock:
<TABLE>
<CAPTION>
Stated Value at
-------------------------- Initial Optional
December 31, December 31, Dividend Redemption
1997 1996 Rate Date
------------ ------------ -------- ----------
<S> <C> <C> <C> <C>
Series A Preferred Stock $ 41,250 $ 41,250 9.5% 11/17/00
Series B Preferred Stock 100,000 -- 8.75% 5/14/02
Series C Preferred Stock 50,000 -- 8.625% 6/06/07
-------- --------
Total $191,250 $ 41,250
======== ========
</TABLE>
Shareholders' Rights Plan:
On September 4, 1997, the Board of Directors of the Company declared a
dividend distribution of one Preferred Share Purchase Right ("Right") for each
outstanding share of common stock, par value $.01 per share, of the Company (the
"Common Stock"). The dividend distribution was made on October 20, 1997 to
stockholders of record as of the close of business on October 19, 1997. In
addition, a Right will attach to each share of Common Stock issued in the
future. Each Right entitles the registered holder to purchase from the Company
one one-hundredth of a share of Junior Participating Preferred Stock (the
"Junior Preferred Stock"), at a price of $125 per one one-hundredth of a share
(the "Purchase Price"), subject to adjustment. The Rights become exercisable
only if a person or group of affiliated or associated persons (an "Acquiring
Person") acquires, or obtains the right to acquire, beneficial ownership of
Common Stock or other voting securities ("Voting Stock") that have 15% or more
of the voting power of the outstanding shares of Voting Stock, or if an
Acquiring Person commences or makes an announcement of an intention to commence
a tender offer or exchange offer to acquire beneficial ownership of Voting Stock
that have 15% or more of the voting power of the outstanding shares of Voting
Stock. The Rights will expire on October 19, 2007, unless redeemed earlier by
the Company at $.001 per Right, or exchanged by the Company at an exchange ratio
of one share of Common Stock per Right.
In the event that a person becomes an Acquiring Person, each holder of
a Right, other than the Acquiring Person, is entitled to receive, upon exercise,
(1) Common Stock having a value equal to two times the Purchase Price of the
Right or (2) common stock of the acquiring company having a value equal to two
times the Purchase Price of the Right.
The Junior Preferred Stock ranks junior to all other series of the
Company's preferred stock with respect to payment of dividends and as to
distributions of assets in liquidation. Each share of Junior Preferred Stock has
a quarterly dividend rate per share equal to the greater of $1.00 or 100 times
the per share amount of any dividend (other than a dividend payable in shares of
Common Stock or a subdivision of the Common Stock) declared on the Common Stock,
subject to certain adjustments. In the event of liquidation, the holder of the
Junior Preferred Stock is entitled to receive a preferred liquidation payment
per share of $1.00 (plus accrued and unpaid dividends) or, if greater, an amount
equal to 100 times the payment to be made per share of Common Stock, subject to
certain adjustments.
F-20
<PAGE> 65
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
5. STOCKHOLDERS' EQUITY, CONTINUED
Dividends/Distributions:
The following table summarizes dividends/distributions for the past two
years:
<TABLE>
<CAPTION>
Common Stock/Operating Partnership Units
- ----------------------------------------
Dividend/
Distribution Total
per Share/ Dividend/
Record Date Payable Date Unit Distribution
-------------------- ----------------------- ------------- ---------------
<S> <C> <C> <C> <C>
First Quarter 1996 March 29, 1996 April 22, 1996 $.48750 $12,477
Second Quarter 1996 June 28, 1996 July 22, 1996 $.48750 $12,759
Third Quarter 1996 September 27, 1996 October 21, 1996 $.48750 $12,801
Fourth Quarter 1996 December 31, 1996 January 20, 1997 $.50500 $16,281
First Quarter 1997 March 31, 1997 April 21, 1997 $.50500 $16,904
Second Quarter 1997 June 30, 1997 July 21, 1997 $.50500 $17,222
Third Quarter 1997 September 30, 1997 October 20, 1997 $.50500 $17,703
Fourth Quarter 1997 December 31, 1997 January 20, 1998 $.53000 $22,010
Series A Preferred Stock
- ------------------------
Dividend
Record Date Payable Date per Share Total Dividend
-------------------- ----------------------- ------------- ---------------
First Quarter 1996 March 15, 1996 March 31, 1996 $ .59375 $ 980
Second Quarter 1996 June 14, 1996 June 30, 1996 $ .59375 $ 980
Third Quarter 1996 September 16, 1996 September 30, 1996 $ .59375 $ 980
Fourth Quarter 1996 December 13, 1996 December 31, 1996 $ .59375 $ 980
First Quarter 1997 March 14, 1997 March 31, 1997 $ .59375 $ 980
Second Quarter 1997 June 13, 1997 June 30, 1997 $ .59375 $ 980
Third Quarter 1997 September 15, 1997 September 30, 1997 $ .59375 $ 980
Fourth Quarter 1997 December 15, 1997 December 31, 1997 $ .59375 $ 980
Series B Preferred Stock
- ------------------------
Dividend
Record Date Payable Date per Share Total Dividend
-------------------- ----------------------- ------------- ---------------
Second Quarter 1997 June 13, 1997 June 30, 1997 $ 27.95000 $ 1,119
Third Quarter 1997 September 15, 1997 September 30, 1997 $ 54.68750 $ 2,188
Fourth Quarter 1997 December 15, 1997 December 31, 1997 $ 54.68750 $ 2,188
Series C Preferred Stock
- ------------------------
Dividend
Record Date Payable Date per Share Total Dividend
-------------------- ----------------------- ------------- ---------------
Third Quarter 1997 September 15, 1997 September 30, 1997 $ 68.12300(1) $ 1,363
Fourth Quarter 1997 December 15, 1997 December 31, 1997 $ 53.90600 $ 1,078
</TABLE>
(1) $14.217 of this dividend relates to the second quarter of 1997.
F-21
<PAGE> 66
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
6. ACQUISITION AND DEVELOPMENT OF REAL ESTATE
In 1997, the Company acquired 389 industrial properties comprising
approximately 22.9 million square feet (unaudited) of GLA for a total purchase
price of approximately $862,350 and completed the development of ten properties
and two expansions comprising approximately 1.7 million square feet (unaudited)
of GLA at a cost of approximately $50,246 .
7. SALES OF REAL ESTATE
In 1996, the Company sold six properties. Gross proceeds from these
sales totaled approximately $14,972. The gain on sales totaled approximately
$4,344.
In 1997, the Company sold ten in-service properties, one property held
for redevelopment and several parcels of land. Gross proceeds from these sales
totaled approximately $33,658. The gain on sales totaled approximately $5,003.
8. DISPOSITION OF INTEREST RATE PROTECTION AGREEMENT
In July 1995, the Company sold the 1994 Interest Rate Protection
Agreement for approximately $12,852. The loss on disposition of the 1994
Interest Rate Protection Agreement totaled approximately $6,410.
In May 1997, the Company sold the 1995 Interest Rate Protection
Agreements for approximately $9,950. The gain on disposition of the 1995
Interest Rate Protection Agreement totaled approximately $1,430.
9. EXTRAORDINARY ITEMS
In 1996, the Company terminated the 1994 Acquisition Facility, the 1995
Credit Line, the 1996 Credit Line and the 1996 Acquisition Facility before their
contractual maturity date. As a result of these early retirements, the Company
recorded an extraordinary loss of $2,273 comprised of a prepayment fee, the
write-off of unamortized deferred financing fees, legal costs and other
expenses.
In 1997, the Company terminated the Harrisburg Mortgage Loan, the LB
Mortgage Loan I, the Defeasance Loan and the 1996 Unsecured Acquisition Facility
before their contractual maturity date. Also, the Company entered into a
commitment to pay down and retire the 1994 Defeased Mortgage Loan on January 2,
1998. As a result of the early retirements and the commitment for early
retirement of the 1994 Defeased Mortgage Loan, the Company recorded an
extraordinary loss of $14,124 comprised of prepayment fees, the write off of
unamortized deferred financing fees, legal costs and other expenses.
F-22
<PAGE> 67
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
10. EARNINGS PER SHARE
In February 1997, the Financial Accounting Standards Board (the
"FASB") issued Statement of Financial Accounting Standards No. 128, "Earnings
per Share" ("FAS 128"), effective for financial statements ending after December
15, 1997. As required by this statement, the Company adopted the new standard
for computing and presenting earnings per share (EPS) for the year ended
December 31, 1997, and for all prior-periods' EPS data presented herein. The
outstanding Operating Partnership units have been excluded from the diluted
earnings per share calculation as there would be no effect on the amounts since
the minority interests' share of income would also be added back to net income.
The computation of basic and diluted EPS, as prescribed by FAS 128, is presented
below:
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Numerator:
Income Before Extraordinary Loss ............ $ 66,070 $ 37,937 $ 12,349
Less: Preferred Stock Dividends ............ (11,856) (3,919) (468)
------------ ------------ ------------
Net Income Available to Common
Stockholders Before Extraordinary Loss-
For Basic and Diluted EPS .................. 54,214 34,018 11,881
Extraordinary Loss .......................... (14,124) (2,273) --
------------ ------------ ------------
Net Income Available to Common
Stockholders- For Basic and Diluted EPS .... $ 40,090 $ 31,745 $ 11,881
============ ============ ============
Denominator:
Weighted Average Common Shares Outstanding at
December 31, 1997, 1996 and 1995,
respectively- Basic ........................ 31,508,240 24,755,953 18,889,013
Effect of Dilutive Securities:
Employee Common Stock Options .............. 305,686 86,447 --
------------ ------------ ------------
Weighted Average Common Shares Outstanding at
December 31, 1997, 1996 and 1995,
respectively- Diluted ...................... 31,813,926 24,842,400 18,889,013
============ ============ ============
Basic EPS:
Net Income Available to Common
Stockholders Before Extraordinary Loss ..... $ 1.72 $ 1.37 $ .63
============ ============ ============
Extraordinary Loss .......................... $ (.45) $ (.09) $ --
============ ============ ============
Net Income Available to Common Stockholders . $ 1.27 $ 1.28 $ .63
============ ============ ============
Diluted EPS:
Net Income Available to Common
Stockholders Before Extraordinary Loss ..... $ 1.70 $ 1.37 $ .63
============ ============ ============
Extraordinary Loss .......................... $ (.44) $ (.09) $ --
============ ============ ============
Net Income Available to Common Stockholders . $ 1.26 $ 1.28 $ .63
============ ============ ============
</TABLE>
F-23
<PAGE> 68
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
11. FUTURE RENTAL REVENUES
The Company's properties are leased to tenants under net and semi-net
operating leases. Minimum lease payments receivable, excluding tenant
reimbursements of expenses, under noncancelable operating leases in effect as of
December 31, 1997 are approximately as follows:
<TABLE>
<S> <C>
1998 $ 229,229
1999 190,315
2000 145,075
2001 108,223
2002 78,566
Thereafter 187,289
-------------
Total $ 938,697
==============
</TABLE>
12. EMPLOYEE BENEFIT PLANS
The Company maintains two stock incentive plans (the "Stock Incentive
Plans") which are administered by the Compensation Committee of the Board of
Directors. Only officers and other employees of the Company and its affiliates
generally are eligible to participate in the Stock Incentive Plans. However,
Independent Directors of the Company receive automatic annual grants of options
to purchase 10,000 shares at a per share exercise price equal to the fair market
value of a share on the date of grant.
The Stock Incentive Plans authorize (i) the grant of stock options that
qualify as incentive stock options under Section 422 of the Code, (ii) the grant
of stock options that do not so qualify, (iii) restricted stock awards, (iv)
performance share awards and (v) dividend equivalent rights. The exercise price
of stock options will be determined by the Compensation Committee, but may not
be less than 100% of the fair market value of the shares on the date of grant.
Special provisions apply to awards granted under the Stock Incentive Plans in
the event of a change in control in the Company. As of January 30, 1998, the
Company has authorized 7.7 million shares for issuance under the Stock Incentive
Plans, of which, 1.7 million shares are available for future grants. The
outstanding stock options generally vest over one to two year periods and have
lives of ten years. Stock option transactions are summarized as follows:
<TABLE>
<CAPTION>
Weighted Average Exercise
Exercise Price Price Per
Share per Share Share
-------------- ------------------ ---------------
<S> <C> <C> <C>
Granted at Initial Offering .... 637,500 $ 23.50 $ 23.50
--------------
Outstanding at December 31, 1994 637,500 $ 23.50 $ 23.50
Granted ..................... 274,500 $ 19.98 $18.25 - $20.25
Expired or Terminated ....... (54,000) $ 23.50 $ 23.50
--------------
Outstanding at December 31, 1995 858,000 $ 22.37 $18.25 - $23.50
Granted ..................... 263,500 $ 22.94 $22.75 - $25.63
Exercised ................... (16,000) $ 23.50 $ 23.50
Expired or Terminated ....... (12,000) $ 23.50 $ 23.50
--------------
Outstanding at December 31, 1996 1,093,500 $ 22.49 $18.25 - $25.63
Granted ..................... 538,000 $ 30.32 $28.50 - $30.375
Exercised or Converted....... (300,000) $ 22.50 $18.25 - $23.50
--------------
Outstanding at December 31, 1997 1,331,500 $ 25.67 $18.25 - $30.375
==============
</TABLE>
F-24
<PAGE> 69
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
12. EMPLOYEE BENEFIT PLANS, CONTINUED
The following table summarizes currently outstanding and exercisable
options as of December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------------------- --------------------------------
Weighted
Average Weighted Weighted
Number Remaining Average Number Average
Range of Exercise Price Outstanding Contractual Exercise Exercisable Exercise
Life Price Price
- -------------------------- ------------- --------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C>
$18.25-$25.63 793,500 7.28 $22.52 793,500 $22.52
$28.50-$30.50 538,000 9.37 $30.32 229,000 $30.375
</TABLE>
The Company applies Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees", in accounting for its Stock
Incentive Plans. Accordingly, no compensation expense has been recognized in the
consolidated statements of operations. Had compensation cost for the Company's
Stock Incentive Plans been determined based upon the fair value at the grant
date for awards under the Stock Incentive Plans consistent with the methodology
prescribed under Statement of Financial Accounting Standards No. 123,
"Accounting for Stock-Based Compensation", net income and earnings per share
would have been the pro forma amounts indicated in the table below:
<TABLE>
<CAPTION>
For the Year Ended
--------------------------------------
1997 1996 1995
--------- --------- ----------
<S> <C> <C> <C>
Net Income Available to Common Stockholders- as reported .................. $ 40,090 $ 31,745 $ 11,881
Net Income Available to Common Stockholders- pro forma .................... $ 38,810 $ 31,239 $ 11,881
Net Income Available to Common Stockholders per Share- as reported- Basic . $ 1.27 $ 1.28 $ .63
Net Income Available to Common Stockholders per Share- pro forma- Basic ... $ 1.23 $ 1.26 $ .63
Net Income Available to Common Stockholders per Share- as reported- Diluted $ 1.26 $ 1.28 $ .63
Net Income Available to Common Stockholders per Share- pro forma- Diluted . $ 1.22 $ 1.26 $ .63
The fair value of each option grant is estimated on the date of grant
using the Black-Scholes option pricing model with the following weighted
average assumptions:
Expected dividend yield ................................................ 8.15% 7.16% 7.16%
Expected stock price volatility ........................................ 20.01% 18.12% 18.12%
Risk-free interest rate ................................................ 6.48% 6.81% 6.05%
Expected life of options ............................................... 3.78 7.37 5.51
</TABLE>
The weighted average fair value of options granted during 1997, 1996 and
1995 is $2.72, $2.43 and $1.84 per option, respectively.
In September 1994, the Board of Directors approved and the Company
adopted a 401(k)/Profit Sharing Plan. Under the Company's 401(k)/Profit Sharing
Plan, all eligible employees may participate by making voluntary contributions.
The Company may make, but is not required to make, matching contributions. For
the years ended December 31, 1996 and 1995, the Company did not make any
matching contributions. For the year ended December 31, 1997, the Company made a
matching contribution of approximately $108. In March 1996, the Board of
Directors approved and the Company adopted a Deferred Income Plan (the "Plan").
Under the Plan, 194,164 unit awards and 138,500 unit awards were granted for the
years ended December 31, 1997 and 1996 respectively, providing the recipients
with deferred income benefits which vest in three equal annual installments. The
expense related to these deferred income benefits is included in general and
administrative expenses in the consolidated statements of operations.
During 1997, the Company awarded 59,946 shares of restricted Common
Stock to certain employees, 1,274 of restricted Common Stock to certain
Directors and certain other employees of the Company converted certain employee
stock options to 54,936 shares of restricted Common Stock. These restricted
shares of Common Stock had
F-25
<PAGE> 70
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
12. EMPLOYEE BENEFIT PLANS, CONTINUED
a fair value of $3,654 on the date of grant. The restricted Common Stock vests
over a period from two to ten years. Compensation expense will be charged to
earnings over the vesting period.
13. RELATED PARTY TRANSACTIONS
The Company often obtains title insurance coverage for its properties
from an entity for which an independent Director of the Company became the
President, Chief Executive Officer and a Director in 1996.
On November 19, 1997, the Company exercised an option that was granted
on March 19, 1996 to purchase a 100,000 square foot (unaudited) bulk warehouse
property located in Indianapolis, Indiana for approximately $3,338. The property
was purchased from a partnership in which one of the Company's Senior Regional
Directors was a limited partner.
From time to time, the Company utilizes real estate brokerage services
from CB Commercial for which a relative of one of the Company's senior executive
officers is an employee.
14. SUPPLEMENTAL INFORMATION TO STATEMENTS OF CASH FLOWS
Supplemental disclosure of cash flow information:
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended
December 31, December 31, December 31,
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Interest paid, net of
capitalized interest ........ $ 44,627 $ 29,309 $ 28,248
========= ========= =========
Interest capitalized ........... $ 1,151 $ 501 $ 324
========= ========= =========
Supplemental schedule of noncash
investing and financing activities:
Distribution payable on
common stock/units ......... $ 22,010 $ 16,281 $ 9,954
========= ========= =========
Dividend payable on
preferred stock ............ $ -- $ -- $ 468
========= ========= =========
Exchange of units for common shares:
Minority interest .......... $ (3,395) $ (943) $ (1,005)
Common stock ............... 2 -- 1
Additional paid in capital . 3,393 943 1,004
--------- --------- ---------
$ -- $ -- $ --
========= ========= =========
Sale of interest rate
protection agreement ....... $ -- $ -- $ (12,852)
Purchase of interest rate
protection and swap
agreements ................. -- -- 12,852
--------- --------- ---------
$ -- $ -- $ --
========= ========= =========
In conjunction with the property
acquisitions, the following assets
and liabilities were assumed:
Purchase of real estate ........ $ 862,350 $ 252,991 $ 63,855
Mortgage loans ................. (20,272) (9,417) --
Promissory notes ............... -- (9,919) --
Operating partnership units .... (115,230) (23,863) --
Accounts receivable ............ -- -- 153
Accounts payable and
accrued expenses ........... (11,414) (2,626) (1,115)
--------- --------- ---------
Acquisition of real estate ..... $ 715,434 $ 207,166 $ 62,893
========= ========= =========
</TABLE>
F-26
<PAGE> 71
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
15. COMMITMENTS AND CONTINGENCIES
In the normal course of business, the Company is involved in legal
actions arising from the ownership of its properties. In management's opinion,
the liabilities, if any, that may ultimately result from such legal actions are
not expected to have a materially adverse effect on the consolidated financial
position, operations or liquidity of the Company.
Thirty-four properties have leases granting the tenants options to
purchase the property. Such options are exercisable at various times and at
appraised fair market value or at a fixed purchase price generally in excess of
the Company's net book value of the asset. The Company has no notice of any
exercise of any tenant purchase option.
The Company has committed to the construction of 12 industrial
properties totaling approximately 2.5 million square feet (unaudited). The
estimated total construction costs are approximately $90.4 million (unaudited).
These developments are expected to be funded with cash flow from operations as
well as borrowings under the 1997 Unsecured Acquisition Facility.
At December 31, 1997, the Company had two letters of credit outstanding
in the amounts of $980 and $329. The $980 letter of credit was required under
the original issuance of the Series A Preferred Stock to guarantee the payment
of one quarter's dividend on the Series A Preferred Stock. The Guarantee Agent
of the Series A Preferred Stock is the beneficiary of this letter of credit
which expires on June 29, 1998. The $329 letter of credit is pledged to a
municipality to guarantee the completion of certain site improvements at one of
the Company's property developments. It expires on August 31, 1998.
16. SUBSEQUENT EVENTS (UNAUDITED)
During the period January 1, 1998 through March 16, 1998, the Company
purchased 56 industrial properties containing an aggregate of 2.9 million square
feet of GLA for approximately $103,441, or $36.20 per square foot. The aggregate
purchase price consisted of approximately $101,470 million in cash and Operating
Partnership units valued at approximately $1,971.
On January 2, 1998, the Company entered into an interest rate
protection agreement to lock into a fixed interest rate on an anticipated
offering of senior unsecured debt. The interest rate protection agreement had a
notional value of $50,000, an interest rate of 5.937% and a settlement date of
October 2, 1998. This interest rate protection agreement's value is based
on the 30-year Treasury.
On January 27, 1998, the Company registered approximately $789,165 of
common stock, preferred stock and depositary shares and $400,000 of debt
securities.
On February 4, 1998, the Company issued 5,000,000 Depositary Shares,
each representing 1/100th of a share of the Company's 7.95%, $.01 par value,
Series D Cumulative Preferred Stock (the "Series D Preferred Stock"), at an
initial offering price of $25 per Depositary Share. Dividends on the Series D
Preferred Stock represented by the Depositary Shares are cumulative from the
date of initial issuance and are payable quarterly in arrears. With respect to
the dividends and amounts upon liquidation, dissolution or winding up, the
Series D Preferred Stock ranks senior to payments on the Company's $.01 par
value common stock and pari passu with the Company's Series A, B and C Preferred
Stock. The Series D Preferred Stock is not redeemable prior to February 4, 2003.
On or after February 4, 2003, the Series D Preferred Stock is redeemable for
cash at the option of the Company, in whole or in part, at a redemption price
equivalent to $25 per Depositary Share, or $125,000 in the aggregate, plus
dividends accrued and unpaid to the redemption date. The Series D Preferred
Stock has no stated maturity and is not convertible into any other securities of
the Company.
F-27
<PAGE> 72
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
16. SUBSEQUENT EVENTS (UNAUDITED), CONTINUED
On March 18, 1998, the Company issued 3,000,000 Depositary Shares, each
representing 1/100th of a share of the Company's 7.90%, $.01 par value, Series E
Cumulative Preferred Stock (the "Series E Preferred Stock"), at an initial
offering price of $25 per Depositary Share. Dividends on the Series E Preferred
Stock, represented by the Depositary Shares, are cumulative from the date of
initial issuance and are payable quarterly in arrears. With respect to the
payment of dividends and amounts upon liquidation, dissolution or winding up,
the Series E Preferred Stock ranks senior to payments on the Company's Common
Stock and pari passu with the Company's Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock; however,
the Series A Preferred Stock has the benefit of a guarantee by First Industrial
Securities, L.P. The Series E Preferred Stock is not redeemable prior to March
18, 2003. On or after March 18, 2003, the Series E Preferred Stock is redeemable
for cash at the option of the Company, in whole or in part, at a redemption
price equivalent to $25 per Depositary Share, or $75,000 in the aggregate, plus
dividends accrued and unpaid to the redemption date. The Series E Preferred
Stock has no stated maturity and is not convertible into any other securities of
the Company.
In March 1998, the Company declared a first quarter dividend of $.53
per share on its common stock which is payable on April 20, 1998. The Company
also declared a first quarter dividend of $.59375 per share, $54.688 per share
($.54688 per depositary share), $53.906 per share ($.53906 per depositary share)
and a partial period dividend of $30.365 per share ($.30365 per depositary
share) on its Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock, respectively, which is payable on
March 31, 1998.
F-28
<PAGE> 73
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
17. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1997
--------------------------------------------------------
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Total Revenues ................................... $ 46,143 $ 52,648 $ 56,377 $ 68,035
Income Before Disposition of Interest Rate
Protection
Agreements, Gain on Sales of Properties, ...... 13,190 15,091 17,180 19,488
Minority Interest
and Extraordinary Loss
Disposition of Interest Rate Protection Agreements -- 1,430 -- --
Gain on Sales of Properties ...................... -- 3,999 187 817
Income Before Minority Interest and Extraordinary 13,190 20,520 17,367 20,305
Loss
Minority Interest ................................ (1,356) (594) (1,552) (1,810)
Income Before Extraordinary Loss ................. 11,834 19,926 15,815 18,495
Extraordinary Loss ............................... -- (12,563) -- (1,561)
Net Income ....................................... 11,834 7,363 15,815 16,934
Preferred Stock Dividends ........................ (980) (2,385) (4,245) (4,246)
-------- -------- -------- --------
Net Income Available to Common Stockholders ...... $ 10,854 $ 4,978 $ 11,570 $ 12,688
======== ======== ======== ========
Earnings Per Share:
Net Income Available to Common Stockholders
Before Extraordinary Loss per Weighted Average
Common Share Outstanding:
Basic ............ $ .36 $ .58 $ .38 $ .40
======== ======== ======== ========
Diluted .......... $ .36 $ .58 $ .38 $ .40
======== ======== ======== ========
Net Income Available to Common Stockholders per
Weighted Average Common Share Outstanding:
Basic ............ $ .36 $ .17 $ .38 $ .36
======== ======== ======== ========
Diluted .......... $ .36 $ .16 $ .38 $ .35
======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1996
--------------------------------------------------------
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Total Revenues .................................. $ 30,645 $ 34,779 $ 36,175 $ 38,456
Income Before Gain on Sales of Properties,
Minority Interest ............................... 6,986 8,558 9,419 11,561
and Extraordinary Loss
Gain on Sales of Properties ..................... -- 4,320 -- 24
Income Before Minority Interest and Extraordinary 6,986 12,878 9,419 11,585
Loss
Minority Interest ............................... (404) (1,001) (759) (767)
Income Before Extraordinary Loss ................ 6,582 11,877 8,660 10,818
Extraordinary Loss .............................. (821) -- -- (1,452)
Net Income ...................................... 5,761 11,877 8,660 9,366
Preferred Stock Dividends ....................... (980) (980) (980) (979)
-------- -------- -------- --------
Net Income Available to Common Stockholders ..... $ 4,781 $ 10,897 $ 7,680 $ 8,387
======== ======== ======== ========
Earnings Per Share:
Net Income Available to Common Stockholders
Before Extraordinary Loss per Weighted
Average Common Share Outstanding:
Basic ........... $ .25 $ .45 $ .32 $ .35
======== ======== ======== ========
Diluted ......... $ .25 $ .45 $ .32 $ .34
======== ======== ======== ========
Net Income Available to Common Stockholders
per Weighted Average Common Share Outstanding:
Basic ........... $ .21 $ .45 $ .32 $ .30
======== ======== ======== ========
Diluted ......... $ .21 $ .45 $ .32 $ .29
======== ======== ======== ========
</TABLE>
F-29
<PAGE> 74
FIRST INDUSTRIAL REALTY TRUST, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT FOR PER SHARE DATA)
18. PRO FORMA FINANCIAL INFORMATION (UNAUDITED)
The following Pro Forma Condensed Statements of Operations for the
years ended December 31, 1997 and 1996 are presented as if the acquisition of
501 properties between January 1, 1996 and December 31, 1997 had been acquired
on either January 1, 1996 or the lease commencement date if the property was
developed and as if the February 1996 Equity Offering, the October 1996 Equity
Offering, the Series B Preferred Stock Offering, the Series C Preferred Stock
Offering, the September 1997 Equity Offering, the October 1997 Equity Offering,
the assumption of secured debt, the issuance of the 2005 Notes, the issuance of
the 2006 Notes and the issuance of the 2017 Notes had been completed on January
1, 1996.
PRO FORMA CONDENSED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year Ended
--------------------------
December December
31, 1997 31, 1996
--------- ---------
<S> <C> <C>
Total Revenues ....................................... $ 293,404 $ 262,175
Property Expenses .................................... 80,234 76,536
General and Administrative Expense ................... 6,248 4,018
Interest Expense ..................................... 62,135 47,383
Depreciation and Other Amortization .................. 50,908 47,362
Amortization of Interest Rate Protection Agreements
and Deferred Financing Costs ...................... 2,812 3,286
--------- ---------
Income Before Disposition of Interest Rate Protection
Agreements, Gain on Sales of Properties,
Minority Interest and Extraordinary Item .......... 91,067 83,590
Disposition of Interest Rate Protection Agreements ... 1,430 --
Gain on Sales of Properties .......................... 5,003 4,344
--------- ---------
Income Before Minority Interest and Extraordinary Item 97,500 87,934
Income Allocated to Minority Interest ................ (11,361) (10,074)
--------- ---------
Income Before Extraordinary Item ..................... 86,139 77,860
Preferred Stock Dividends ............................ (16,984) (16,984)
--------- ---------
Income Before Extraordinary Item Available to Common
Stockholders ...................................... $ 69,155 $ 60,876
========= =========
Income Before Extraordinary Item Available to Common
Stockholders Per Weighted Average Common Share
Outstanding- Basic ................................ $ 1.91 $ 1.68
========= =========
Income Before Extraordinary Item Available to Common
Stockholders Per Weighted Average Common Share
Outstanding- Diluted .............................. $ 1.89 $ 1.68
========= =========
</TABLE>
F-30
<PAGE> 75
FIRST INDUSTRIAL REALTY TRUST, INC.
SCHEDULE III:
REAL ESTATE AND ACCUMULATED DEPRECIATION
AS OF DECEMBER 31, 1997
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
ATLANTA
4250 River Green Parkway Duluth, GA (e) $ 264 $ 1,522
3400 Corporate Parkway Duluth, GA (e) 281 1,621
3450 Corporate Parkway Duluth, GA (e) 506 2,904
3500 Corporate Parkway Duluth, GA (e) 260 1,500
3425 Corporate Parkway Duluth, GA (e) 385 2,212
1650 GA Highway 155 McDonough, GA 788 4,544
415 Industrial Park Road Cartersville, GA 544 3,140
434 Industrial Park Road Cartersville, GA 234 1,365
435 Industrial Park Road Cartersville, GA 281 1,638
14101 Industrial Park Boulevard Covington, GA 285 1,658
801-804 Blacklawn Road Conyers, GA 361 2,095
1665 Dogwood Drive Conyers, GA 635 3,662
1715 Dogwood Drive Conyers, GA 288 1,675
11235 Harland Drive Covington, GA 125 739
700 Westlake Parkway Atlanta, GA 213 1,551
800 Westlake Parkway Atlanta, GA 450 2,645
4050 Southmeadow Parkway Atlanta, GA 401 2,813
4051 Southmeadow Parkway Atlanta, GA 697 3,486
4071 Southmeadow Parkway Atlanta, GA 750 4,460
4081 Southmeadow Parkway Atlanta, GA 1,012 5,450
1875 Rockdale Industrial Blvd. Conyers, GA 386 2,264
370 Great Southwest Parkway (l) Atlanta, GA 527 2,984
955 Cobb Place Kennesaw, GA 780 4,420
6105 Boatrock Blvd Atlanta, GA 89 504
1640 Sands Place Marietta, GA 162 920
3312 N. Berkeley Lake Road Duluth, GA 2,937 16,644
3495 Bankhead Highway (l) Atlanta, GA 983 5,568
CENTRAL PENNSYLVANIA
1214-a Freedom Road Cranberry Township, PA 31 994
401 Russell Drive Middletown, PA 262 857
2700 Commerce Drive Middletown, PA 196 997
2701 Commerce Drive Middletown, PA 141 859
2780 Commerce Drive Middletown, PA 113 743
5035 Ritter Road Mechanicsburg, PA 360 1,442
5070-B Ritter Road (l) Mechanicsburg, PA 395 2,322
6340 Flank Drive Harrisburg, PA 361 2,363
6345 Flank Drive Harrisburg, PA 293 2,297
6360 Flank Drive Harrisburg, PA 218 2,286
6380 Flank Drive Harrisburg, PA 109 1,317
6400 Flank Drive Harrisburg, PA 153 1,312
6405 Flank Drive Harrisburg, PA 221 1,462
100 Schantz Spring Road Allentown, PA 532 3,144
794 Roble Road Allentown, PA 915 5,391
7355 Williams Avenue Allentown, PA 291 1,725
2600 Beltline Avenue Reading, PA 341 2,038
7125 Grayson Road Harrisburg, PA 1,514 8,779
7253 Grayson Road Harrisburg, PA 894 5,168
5 Keystone Drive Lebanon, PA 678 -
5020 Louise Drive Mechanicsburg, PA (d) 707 -
7195 Grayson Harrisburg, PA (d) 478 2,771
400 First Street Middletown, PA 280 1,839
401 First Street Middletown, PA 819 5,381
600 Hunter Lane Middletown, PA 191 -
300 Hunter Lane Middletown, PA 216 -
3380 Susquehanna Trail North York, PA 450 2,550
495 East Locust Lane York, PA 810 4,590
350 Old Silver Spring Road Mechanicsburg, PA 510 2,890
4500 Westport Drive Mechanicsburg, PA 690 3,970
500 Industrial Lane Middletown, PA 194 1,272
41 Weaver Road Denver, PA 2,501 14,171
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
ATLANTA
4250 River Green Parkway $ 21 $ 264 $ 1,543 $ 1,807
3400 Corporate Parkway 106 281 1,727 2,008
3450 Corporate Parkway 18 506 2,922 3,428
3500 Corporate Parkway 16 260 1,516 1,776
3425 Corporate Parkway 145 385 2,357 2,742
1650 GA Highway 155 165 788 4,709 5,497
415 Industrial Park Road 51 544 3,191 3,735
434 Industrial Park Road 72 234 1,437 1,671
435 Industrial Park Road 9 281 1,647 1,928
14101 Industrial Park Boulevard 515 285 2,173 2,458
801-804 Blacklawn Road 164 361 2,259 2,620
1665 Dogwood Drive 11 635 3,673 4,308
1715 Dogwood Drive 94 288 1,769 2,057
11235 Harland Drive 30 125 769 894
700 Westlake Parkway 510 223 2,051 2,274
800 Westlake Parkway 402 479 3,018 3,497
4050 Southmeadow Parkway 158 425 2,947 3,372
4051 Southmeadow Parkway 686 726 4,143 4,869
4071 Southmeadow Parkway 715 828 5,097 5,925
4081 Southmeadow Parkway 611 1,157 5,916 7,073
1875 Rockdale Industrial Blvd. 30 386 2,294 2,680
370 Great Southwest Parkway (l) 214 546 3,179 3,725
955 Cobb Place 167 804 4,563 5,367
6105 Boatrock Blvd 13 91 516 606
1640 Sands Place 34 166 951 1,116
3312 N. Berkeley Lake Road 788 3,046 17,323 20,369
3495 Bankhead Highway (l) 184 1,005 5,730 6,735
CENTRAL PENNSYLVANIA
1214-a Freedom Road 617 205 1,437 1,642
401 Russell Drive 1,496 287 2,328 2,615
2700 Commerce Drive 671 206 1,658 1,864
2701 Commerce Drive 1,171 164 2,007 2,171
2780 Commerce Drive 1,033 209 1,680 1,889
5035 Ritter Road 2,401 442 3,761 4,203
5070-B Ritter Road (l) 1,897 506 4,108 4,614
6340 Flank Drive 2,522 563 4,683 5,246
6345 Flank Drive 2,767 587 4,770 5,357
6360 Flank Drive 849 359 2,994 3,353
6380 Flank Drive 795 234 1,987 2,221
6400 Flank Drive 1,257 281 2,441 2,722
6405 Flank Drive 1,256 313 2,626 2,939
100 Schantz Spring Road 75 533 3,218 3,751
794 Roble Road 45 915 5,436 6,351
7355 Williams Avenue 203 291 1,928 2,219
2600 Beltline Avenue 212 356 2,235 2,591
7125 Grayson Road 6 1,514 8,785 10,299
7253 Grayson Road 27 894 5,195 6,089
5 Keystone Drive 4,747 683 4,742 5,425
5020 Louise Drive 2,773 716 2,764 3,480
7195 Grayson 77 479 2,847 3,326
400 First Street 576 192 2,503 2,695
401 First Street 1,666 563 7,303 7,866
600 Hunter Lane 4,393 191 4,393 4,584
300 Hunter Lane 6,059 216 6,059 6,275
3380 Susquehanna Trail North 137 467 2,670 3,137
495 East Locust Lane 237 838 4,799 5,637
350 Old Silver Spring Road 243 542 3,101 3,643
4500 Westport Drive 196 727 4,129 4,856
500 Industrial Lane 264 133 1,597 1,730
41 Weaver Road 194 2,530 14,336 16,866
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
ATLANTA
4250 River Green Parkway $ 127 1988 (q)
3400 Corporate Parkway 177 1987 (q)
3450 Corporate Parkway 237 1988 (q)
3500 Corporate Parkway 123 1991 (q)
3425 Corporate Parkway 211 1990 (q)
1650 GA Highway 155 468 1991 (q)
415 Industrial Park Road 278 1986 (q)
434 Industrial Park Road 121 1988 (q)
435 Industrial Park Road 147 1986 (q)
14101 Industrial Park Boulevard 149 1984 (q)
801-804 Blacklawn Road 256 1982 (q)
1665 Dogwood Drive 325 1973 (q)
1715 Dogwood Drive 195 1973 (q)
11235 Harland Drive 71 1988 (q)
700 Westlake Parkway 227 1990 (q)
800 Westlake Parkway 285 1991 (q)
4050 Southmeadow Parkway 276 1991 (q)
4051 Southmeadow Parkway 399 1989 (q)
4071 Southmeadow Parkway 480 1991 (q)
4081 Southmeadow Parkway 543 1989 (q)
1875 Rockdale Industrial Blvd. 202 1966 (q)
370 Great Southwest Parkway (l) 87 1986 (q)
955 Cobb Place 38 1991 (q)
6105 Boatrock Blvd 1 1972 (q)
1640 Sands Place 2 1977 (q)
3312 N. Berkeley Lake Road 823 1969 (q)
3495 Bankhead Highway (l) 150 1986 (q)
CENTRAL PENNSYLVANIA
1214-a Freedom Road 450 1982 (q)
401 Russell Drive 611 1990 (q)
2700 Commerce Drive 366 1990 (q)
2701 Commerce Drive 346 1989 (q)
2780 Commerce Drive 370 1989 (q)
5035 Ritter Road 915 1988 (q)
5070-B Ritter Road (l) 917 1989 (q)
6340 Flank Drive 1,049 1988 (q)
6345 Flank Drive 1,065 1989 (q)
6360 Flank Drive 692 1988 (q)
6380 Flank Drive 423 1991 (q)
6400 Flank Drive 527 1992 (q)
6405 Flank Drive 552 1991 (q)
100 Schantz Spring Road 278 1993 (q)
794 Roble Road 474 1984 (q)
7355 Williams Avenue 238 1989 (q)
2600 Beltline Avenue 335 1985 (q)
7125 Grayson Road 814 1991 (q)
7253 Grayson Road 482 1990 (q)
5 Keystone Drive 291 1995 (q)
5020 Louise Drive 257 1995 (q)
7195 Grayson 219 1994 (q)
400 First Street 140 1963/96 (q)
401 First Street 405 1963/96 (q)
600 Hunter Lane 73 1997 (q)
300 Hunter Lane 75 1996 (q)
3380 Susquehanna Trail North 55 1990 (q)
495 East Locust Lane 99 1993 (q)
350 Old Silver Spring Road 64 1968 (q)
4500 Westport Drive 60 1996 (q)
500 Industrial Lane 88 1970/96 (q)
41 Weaver Road 30 1974 (q)
</TABLE>
S-1
<PAGE> 76
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) -----------------------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
CHICAGO
720-730 Landwehr Road Northbrook, IL (e) 521 2,985
3170-3190 MacArthur Boulevard Northbrook, IL (e) 370 2,126
20W201 101st Street Lemont, IL (e) 967 5,554
280-296 Palatine Road Wheeling, IL (e) 305 1,735
1330 West 43rd Street Chicago, IL 369 1,464
2300 Hammond Drive Schaumburg, IL 442 1,241
6500 North Lincoln Avenue Lincolnwood, IL 613 1,336
3600 West Pratt Avenue Lincolnwood, IL 1,050 5,767
917 North Shore Drive Lake Bluff, IL 556 3,212
6750 South Sayre Avenue Bedford Park, IL 224 1,309
585 Slawin Court Mount Prospect, IL 611 3,505
2300 Windsor Court Addison, IL 688 3,943
3505 Thayer Court Aurora, IL 430 2,472
3600 Thayer Court Aurora, IL 636 3,645
736-776 Industrial Drive Elmhurst, IL 349 1,994
5310-5352 East Avenue Countryside, IL 382 2,036
12330-12358 South Latrobe Alsip, IL 381 2,067
305-311 Era Drive Northbrook, IL 200 1,154
700-714 Landwehr Road Northbrook, IL 357 2,052
4330 South Racine Avenue Chicago, IL 448 1,893
13040 S. Crawford Ave. Alsip, IL 1,073 6,193
11241 Melrose Street Franklin Park, IL 332 1,931
3150-3160 MacArthur Boulevard Northbrook, IL (d) 439 2,518
2101-2125 Gardner Road Broadview, IL (d) 1,177 6,818
365 North Avenue Carol Stream, IL (d) 1,208 6,961
2942 MacArthur Boulevard Northbrook, IL (d) 315 1,803
7200 S Leamington Bedford Park, IL 798 4,595
12301-12325 S Laramie Ave Alsip, IL 650 3,692
6300 W Howard Street Niles, IL 743 4,208
301 Hintz Wheeling, IL 160 905
301 Alice Wheeling, IL 218 1,236
1001 Commerce Court Buffalo Grove, IL 615 3,485
11939 S Central Avenue Alsip, IL 1,208 6,843
405 East Shawmut La Grange, IL 368 2,083
2201 Lunt Elk Grove Village, IL 469 2,656
1010-50 Sesame Street Bensenville, IL (i) 979 5,546
5555 West 70th Place Bedford Park, IL 146 829
3200-3250 South St. Louis (l) Chicago, IL 110 625
3110-3130 South St. Louis Chicago, IL 115 650
7301 South Hamlin Chicago, IL 149 846
3740 West 74th Street Chicago, IL 190 1,075
7401 South Pulaski Chicago, IL 664 3,763
3900 West 74th Street Chicago, IL 137 778
7501 S. Pulaski Chicago, IL 360 2,038
410 W 169th Street South Holland, IL 462 2,618
CINCINNATI
9900-9970 Princeton-Glendale Cincinnati, OH (f) 545 3,088
2940 Highland Avenue Cincinnati, OH (f) 1,717 9,730
4700-4750 Creek Road Blue Ash, OH (f) 1,080 6,118
4860 Duff Drive Cincinnati, OH 67 378
4866 Duff Drive Cincinnati, OH 67 379
4884 Duff Drive Cincinnati, OH 104 591
4890 Duff Drive Cincinnati, OH 104 592
9636-9643 Interocean Drive Cincinnati, OH 123 695
7600 Empire Drive Florence, KY 900 5,100
CLEVELAND
21510-21600 Alexander Road (m) Oakwood, OH 509 2,883
5405 & 5505 Valley Belt Road (l) Independence, OH 371 2,101
10145 Philipp Parkway Streetsboro, OH 334 1,891
4410 Hamann Willoughby, OH 138 782
6675 Parkland Blvd Solon, OH 548 3,103
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
CHICAGO
720-730 Landwehr Road 9 521 2,994 3,515
3170-3190 MacArthur Boulevard 199 370 2,325 2,695
20W201 101st Street 432 968 5,985 6,953
280-296 Palatine Road 148 310 1,878 2,188
1330 West 43rd Street 527 375 1,985 2,360
2300 Hammond Drive 546 444 1,785 2,229
6500 North Lincoln Avenue 939 615 2,273 2,888
3600 West Pratt Avenue 462 1,050 6,229 7,279
917 North Shore Drive 48 556 3,260 3,816
6750 South Sayre Avenue 36 224 1,345 1,569
585 Slawin Court 1 611 3,506 4,117
2300 Windsor Court 180 688 4,123 4,811
3505 Thayer Court 17 430 2,489 2,919
3600 Thayer Court 52 636 3,697 4,333
736-776 Industrial Drive 256 349 2,250 2,599
5310-5352 East Avenue 537 382 2,573 2,955
12330-12358 South Latrobe 209 381 2,276 2,657
305-311 Era Drive 144 205 1,293 1,498
700-714 Landwehr Road 207 357 2,259 2,616
4330 South Racine Avenue 239 468 2,112 2,580
13040 S. Crawford Ave. 24 1,073 6,217 7,290
11241 Melrose Street 1,072 469 2,866 3,335
3150-3160 MacArthur Boulevard 30 439 2,548 2,987
2101-2125 Gardner Road 110 1,228 6,877 8,105
365 North Avenue 81 1,208 7,042 8,250
2942 MacArthur Boulevard 15 315 1,818 2,133
7200 S Leamington 466 818 5,041 5,859
12301-12325 S Laramie Ave 424 659 4,107 4,766
6300 W Howard Street 343 782 4,512 5,294
301 Hintz 71 167 969 1,136
301 Alice 58 225 1,287 1,512
1001 Commerce Court 99 626 3,573 4,199
11939 S Central Avenue 140 1,224 6,967 8,191
405 East Shawmut 104 379 2,176 2,555
2201 Lunt 1,145 560 3,710 4,270
1010-50 Sesame Street 171 1,003 5,693 6,696
5555 West 70th Place 80 157 898 1,055
3200-3250 South St. Louis (l) 47 116 666 782
3110-3130 South St. Louis 53 120 698 818
7301 South Hamlin 55 154 896 1,050
3740 West 74th Street 50 196 1,119 1,315
7401 South Pulaski 450 685 4,192 4,877
3900 West 74th Street 40 142 813 955
7501 S. Pulaski 86 371 2,113 2,484
410 W 169th Street 124 476 2,728 3,204
CINCINNATI
9900-9970 Princeton-Glendale 750 566 3,817 4,383
2940 Highland Avenue 705 1,772 10,380 12,152
4700-4750 Creek Road 288 1,109 6,377 7,486
4860 Duff Drive 11 68 388 456
4866 Duff Drive 10 68 388 456
4884 Duff Drive 16 106 605 711
4890 Duff Drive 21 107 610 717
9636-9643 Interocean Drive 28 125 721 846
7600 Empire Drive 104 915 5,189 6,104
CLEVELAND
21510-21600 Alexander Road (m) 122 526 2,988 3,514
5405 & 5505 Valley Belt Road (l) 107 385 2,194 2,579
10145 Philipp Parkway 55 342 1,938 2,280
4410 Hamann 49 145 824 969
6675 Parkland Blvd 172 571 3,252 3,823
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
CHICAGO
720-730 Landwehr Road 262 1978 (q)
3170-3190 MacArthur Boulevard 206 1978 (q)
20W201 101st Street 611 1988 (q)
280-296 Palatine Road 133 1978 (q)
1330 West 43rd Street 1,072 1977 (q)
2300 Hammond Drive 1,068 1970 (q)
6500 North Lincoln Avenue 1,036 1965/88 (q)
3600 West Pratt Avenue 561 1953/88 (q)
917 North Shore Drive 298 1974 (q)
6750 South Sayre Avenue 116 1975 (q)
585 Slawin Court 307 1992 (q)
2300 Windsor Court 418 1986 (q)
3505 Thayer Court 220 1989 (q)
3600 Thayer Court 328 1989 (q)
736-776 Industrial Drive 250 1975 (q)
5310-5352 East Avenue 234 1975 (q)
12330-12358 South Latrobe 203 1975 (q)
305-311 Era Drive 123 1978 (q)
700-714 Landwehr Road 201 1978 (q)
4330 South Racine Avenue 1,207 1978 (q)
13040 S. Crawford Ave. 517 1976 (q)
11241 Melrose Street 249 1969 (q)
3150-3160 MacArthur Boulevard 224 1978 (q)
2101-2125 Gardner Road 571 1950/69 (q)
365 North Avenue 571 1969 (q)
2942 MacArthur Boulevard 159 1979 (q)
7200 S Leamington 249 1950 (q)
12301-12325 S Laramie Ave 208 1975 (q)
6300 W Howard Street 226 1956/1964 (q)
301 Hintz 48 1960 (q)
301 Alice 64 1965 (q)
1001 Commerce Court 75 1989 (q)
11939 S Central Avenue 115 1972 (q)
405 East Shawmut 31 1965 (q)
2201 Lunt 42 1963 (q)
1010-50 Sesame Street 35 1976 (q)
5555 West 70th Place 6 1973 (q)
3200-3250 South St. Louis (l) 4 1968 (q)
3110-3130 South St. Louis 4 1968 (q)
7301 South Hamlin 7 1975/86 (q)
3740 West 74th Street 3 1975/86 (q)
7401 South Pulaski 28 1975/86 (q)
3900 West 74th Street 7 1975/86 (q)
7501 S. Pulaski 11 1975/86 (q)
410 W 169th Street 124 1974 (q)
CINCINNATI
9900-9970 Princeton-Glendale 167 1970 (q)
2940 Highland Avenue 479 1969/1974 (q)
4700-4750 Creek Road 291 1960 (q)
4860 Duff Drive 11 1979 (q)
4866 Duff Drive 10 1979 (q)
4884 Duff Drive 16 1979 (q)
4890 Duff Drive 17 1979 (q)
9636-9643 Interocean Drive 20 1983 (q)
7600 Empire Drive 43 1964 (q)
CLEVELAND
21510-21600 Alexander Road (m) 25 1985 (q)
5405 & 5505 Valley Belt Road (l) 18 1983 (q)
10145 Philipp Parkway 12 1994 (q)
4410 Hamann 5 1975 (q)
6675 Parkland Blvd 101 1991 (q)
</TABLE>
S-2
<PAGE> 77
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
COLUMBUS
6911 Americana Parkway Columbus, OH 314 1,777
3800 Lockbourne Industrial Parkway Columbus, OH 1,133 6,421
1819 North Walcutt Road Columbus, OH 810 4,590
3800 Groveport Road Obetz, OH 2,145 12,154
4300 Cemetery Road Hilliard, OH 1,103 6,248
DALLAS
1275-1281 Roundtable Drive Dallas, TX 148 839
2406-2416 Walnut Ridge Dallas, TX 178 1,006
12750 Perimiter Drive Dallas, TX 638 3,618
1324-1343 Roundtable Drive Dallas, TX 178 1,006
1405-1409 Avenue II East Grand Prairie, TX 118 671
2651-2677 Manana Dallas, TX 266 1,510
2401-2419 Walnut Ridge Dallas, TX 148 839
4248-4252 Simonton Farmers Ranch, TX 888 5,032
900-906 Great Southwest Pkwy Arlington, TX 237 1,342
2179 Shiloh Road Garland, TX 251 1,424
2159 Shiloh Road Garland, TX 108 610
2701 Shiloh Road Garland, TX 818 4,636
12784 Perimeter Drive (m) Dallas, TX 350 1,986
3000 West Commerce Dallas, TX 456 2,584
3030 Hansboro Dallas, TX 266 1,510
5222 Cockrell Hill Dallas, TX 296 1,677
405-407 113th Arlington, TX 181 1,026
816 111th Street Arlington, TX 251 1,421
DAYTON
6094-6104 Executive Blvd Huber Heights, OH 181 1,025
6202-6220 Executive Blvd Huber Heights, OH 268 1,521
6268-6294 Executive Blvd Huber Heights, OH 255 1,444
5749-5753 Executive Blvd Huber Heights, OH 50 282
2200-2224 Sandridge Road Moriane, OH 218 1,233
6230-6266 Executive Blvd Huber Heights, OH 271 1,534
DENVER
7100 North Broadway - 1 Denver, CO 201 1141
7100 North Broadway - 2 Denver, CO 203 1150
7100 North Broadway - 3 Denver, CO 139 787
7100 North Broadway - 5 Denver, CO 180 1018
7100 North Broadway - 6 Denver, CO 269 1526
10691 East Bethany Drive Aurora, CO 186 1054
20100 East 32nd Avenue Parkway Aurora, CO 333 1888
15700-15820 West 6th Avenue Golden, Co 333 1887
12850-15884 West 6th Avenue Golden, Co 201 1139
5454 Washington Denver, CO 154 873
5801 West 6th Avenue Lakewood, CO 74 418
5805 West 6th Avenue Lakewood, CO 97 549
5815 West 6th Avenue Lakewood, CO 99 560
5825 West 6th Avenue Lakewood, CO 99 559
5835 West 6th Avenue Lakewood, CO 97 552
525 East 70th Street Denver, CO 68 384
565 East 70th Street Denver, CO 169 960
605 East 70th Street Denver, CO 192 1089
625 East 70th Street Denver, CO 136 768
665 East 70th Street Denver, CO 136 768
700 West 48th Street Denver, CO 302 1711
702 West 48th Street Denver, CO 135 763
3370 North Peoria Street Aurora, CO 163 924
3390 North Peoria Street Aurora, CO 145 822
3508-3538 North Peoria Street Aurora, CO 260 1472
3568 North Peoria Street Aurora, CO 222 1260
3350 North Peoria Street Aurora, CO 215 1216
4785 Elati Denver, CO 173 981
4770 Fox Street Denver, CO 132 750
1550 W. Evans Denver, CO 388 2200
12401-41 East 37th Ave Denver, CO 129 732
3751-71 Revere Street Denver, CO 262 1486
3871 Revere Street Denver, CO 361 2047
5454 Havana Street Denver, CO 204 1156
5500 Havana Street Denver, CO 167 946
4570 Ivy Street Denver, CO 219 1239
5855 Stapleton Drive North Denver, CO 288 1630
5885 Stapleton Drive North Denver, CO 376 2129
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
COLUMBUS
6911 Americana Parkway 122 321 1,892 2,213
3800 Lockbourne Industrial Parkway 184 1,155 6,583 7,738
1819 North Walcutt Road 140 830 4,710 5,540
3800 Groveport Road 204 2,165 12,338 14,503
4300 Cemetery Road 80 1,160 6,271 7,431
DALLAS
1275-1281 Roundtable Drive 36 154 870 1,023
2406-2416 Walnut Ridge 39 184 1,040 1,223
12750 Perimiter Drive 137 659 3,735 4,393
1324-1343 Roundtable Drive 40 184 1,041 1,224
1405-1409 Avenue II East 28 123 695 817
2651-2677 Manana 58 275 1,560 1,834
2401-2419 Walnut Ridge 34 153 869 1,021
4248-4252 Simonton 208 919 5,210 6,128
900-906 Great Southwest Pkwy 53 245 1,388 1,632
2179 Shiloh Road 33 256 1,453 1,708
2159 Shiloh Road 16 110 625 734
2701 Shiloh Road 695 923 5,227 6,149
12784 Perimeter Drive (m) 65 360 2,042 2,401
3000 West Commerce 87 469 2,659 3,127
3030 Hansboro 73 276 1,574 1,849
5222 Cockrell Hill 67 306 1,735 2,040
405-407 113th 26 185 1,049 1,233
816 111th Street 48 258 1,463 1,720
DAYTON
6094-6104 Executive Blvd 75 187 1,094 1,281
6202-6220 Executive Blvd 96 275 1,610 1,885
6268-6294 Executive Blvd 97 262 1,534 1,796
5749-5753 Executive Blvd 46 53 325 378
2200-2224 Sandridge Road 103 226 1,328 1,554
6230-6266 Executive Blvd 99 281 1,623 1,904
DENVER
7100 North Broadway - 1 13 203 1,152 1,355
7100 North Broadway - 2 12 205 1,160 1,365
7100 North Broadway - 3 8 140 794 934
7100 North Broadway - 5 22 181 1,039 1,220
7100 North Broadway - 6 17 272 1,540 1,812
10691 East Bethany Drive 12 188 1,064 1,252
20100 East 32nd Avenue Parkway 73 338 1,956 2,294
15700-15820 West 6th Avenue 31 338 1,913 2,251
12850-15884 West 6th Avenue 13 203 1,150 1,353
5454 Washington 13 156 884 1,040
5801 West 6th Avenue 0 74 418 492
5805 West 6th Avenue 0 97 549 646
5815 West 6th Avenue 0 99 560 659
5825 West 6th Avenue 0 99 559 658
5835 West 6th Avenue 0 97 552 649
525 East 70th Street 5 69 388 457
565 East 70th Street 12 171 970 1,141
605 East 70th Street 13 194 1,100 1,294
625 East 70th Street 9 137 776 913
665 East 70th Street 9 137 776 913
700 West 48th Street 31 307 1,737 2,044
702 West 48th Street 33 140 791 931
3370 North Peoria Street 10 165 932 1,097
3390 North Peoria Street 8 146 829 975
3508-3538 North Peoria Street 29 263 1,498 1,761
3568 North Peoria Street 18 224 1,276 1,500
3350 North Peoria Street 12 216 1,227 1,443
4785 Elati 13 175 992 1,167
4770 Fox Street 10 134 758 892
1550 W. Evans 46 395 2,239 2,634
12401-41 East 37th Ave 10 131 740 871
3751-71 Revere Street 31 267 1,512 1,779
3871 Revere Street 41 367 2,082 2,449
5454 Havana Street 15 206 1,169 1,375
5500 Havana Street 12 169 956 1,125
4570 Ivy Street 11 220 1,249 1,469
5855 Stapleton Drive North 15 290 1,643 1,933
5885 Stapleton Drive North 35 380 2,160 2,540
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
COLUMBUS
6911 Americana Parkway 87 1980 (q)
3800 Lockbourne Industrial Parkway 214 1986 (q)
1819 North Walcutt Road 88 1973 (q)
3800 Groveport Road 406 1986 (q)
4300 Cemetery Road 13 1968 (q)
DALLAS
1275-1281 Roundtable Drive 2 1966 (q)
2406-2416 Walnut Ridge 2 1978 (q)
12750 Perimiter Drive 8 1979 (q)
1324-1343 Roundtable Drive 2 1972 (q)
1405-1409 Avenue II East 1 1969 (q)
2651-2677 Manana 3 1966 (q)
2401-2419 Walnut Ridge 2 1978 (q)
4248-4252 Simonton 11 1973 (q)
900-906 Great Southwest Pkwy 3 1972 (q)
2179 Shiloh Road 3 1982 (q)
2159 Shiloh Road 1 1982 (q)
2701 Shiloh Road 11 1981 (q)
12784 Perimeter Drive (m) 4 1981 (q)
3000 West Commerce 6 1980 (q)
3030 Hansboro 3 1971 (q)
5222 Cockrell Hill 4 1973 (q)
405-407 113th 2 1969 (q)
816 111th Street 3 1972 (q)
DAYTON
6094-6104 Executive Blvd 43 1975 (q)
6202-6220 Executive Blvd 63 1996 (q)
6268-6294 Executive Blvd 60 1989 (q)
5749-5753 Executive Blvd 12 1975 (q)
2200-2224 Sandridge Road 30 1983 (q)
6230-6266 Executive Blvd 55 1979 (q)
DENVER
7100 North Broadway - 1 7 1978 (q)
7100 North Broadway - 2 7 1978 (q)
7100 North Broadway - 3 5 1978 (q)
7100 North Broadway - 5 7 1978 (q)
7100 North Broadway - 6 10 1978 (q)
10691 East Bethany Drive 7 1979 (q)
20100 East 32nd Avenue Parkway 13 1997 (q)
15700-15820 West 6th Avenue 12 1978 (q)
12850-15884 West 6th Avenue 7 1978 (q)
5454 Washington 5 1985 (q)
5801 West 6th Avenue 3 1980 (q)
5805 West 6th Avenue 3 1980 (q)
5815 West 6th Avenue 3 1980 (q)
5825 West 6th Avenue 3 1980 (q)
5835 West 6th Avenue 3 1980 (q)
525 East 70th Street 2 1985 (q)
565 East 70th Street 6 1985 (q)
605 East 70th Street 7 1985 (q)
625 East 70th Street 5 1985 (q)
665 East 70th Street 5 1985 (q)
700 West 48th Street 11 1984 (q)
702 West 48th Street 5 1984 (q)
3370 North Peoria Street 6 1978 (q)
3390 North Peoria Street 5 1978 (q)
3508-3538 North Peoria Street 9 1978 (q)
3568 North Peoria Street 8 1978 (q)
3350 North Peoria Street 8 1978 (q)
4785 Elati 6 1972 (q)
4770 Fox Street 5 1972 (q)
1550 W. Evans 14 1975 (q)
12401-41 East 37th Ave 5 1980 (q)
3751-71 Revere Street 9 1980 (q)
3871 Revere Street 13 1980 (q)
5454 Havana Street 7 1980 (q)
5500 Havana Street 6 1980 (q)
4570 Ivy Street 8 1985 (q)
5855 Stapleton Drive North 10 1985 (q)
5885 Stapleton Drive North 13 1985 (q)
</TABLE>
S-3
<PAGE> 78
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
5200-5280 North Broadway Denver, CO 169 960
5977-5995 North Broadway Denver, CO 268 1518
2952-5978 North Broadway Denver, CO 414 2346
6400 North Broadway Denver, CO 318 1804
875 Parfer Street Lakewood, CO 288 1633
4721 Ironton Street Denver, CO 232 1313
833 Parfer Street Lakewood, CO 196 1112
11005 West 8th Avenue Lakewood, CO 102 580
7100 North Broadway - 7 Denver, CO 215 1221
7100 North Broadway - 8 Denver, CO 79 448
6804 East 48th Avenue Denver, CO 253 1435
15350 East Hindsdale Drive Denver, CO 129 732
15353 East Hinsdale Drive Englewood, CO 97 549
15373 East Hinsdale Drive Englewood, CO 39 219
4611 East 46th Avenue Denver, CO 129 732
East 47th Drive - A Denver, CO 474 2689
East 47th Drive - B Denver, CO 405 2296
Centenial Airport Business Pk. Denver, CO 640 3629
9500 West 49th Street - A Wheatridge, CO 432 2448
9500 West 49th Street - B Wheatridge, CO 235 1330
9500 West 49th Street - C Wheatridge, CO 602 3409
9500 West 49th Street - D Wheatridge, CO 271 1537
8100 South Park Way - A Littleton, CO 442 2507
8100 South Park Way - B Littleton, CO 103 582
8100 South Park Way - C Littleton, CO 568 3219
451-591 East 124th Avenue Littleton, CO 386 2188
14100 East Jewell Aurora, CO 395 2240
14190 East Jewell Aurora, CO 199 1126
608 Garrison Street Lakewood, CO 265 1501
610 Garrison Street Lakewood, CO 264 1494
1111 West Evans (A&C) Denver, CO 233 1321
1111 West Evans (B) Denver, CO 30 169
15000 West 6th Avenue Golden, Co 913 5174
14998 West 6th Avenue Bldg E Golden, Co 565 3199
14998 West 6th Avenue Bldg F Englewood, CO 269 1525
12503 East Euclid Drive Denver, CO 1,219 6905
6547 South Racine Circle Englewood, CO 748 4241
7800 East Iliff Avenue Denver, CO 196 1110
2369 South Trenton Way Denver, CO 292 1656
2370 South Trenton Way Denver, CO 200 1132
2422 South Trenton Way Denver, CO 241 1364
2452 South Trenton Way Denver, CO 421 2386
8122 South Park Lane - A Littleton, CO 394 2232
8122 South Park Lane - B Littleton, CO 186 1054
1600 South Abilene Aurora, CO 465 2633
1620 South Abilene Aurora, CO 268 1520
1640 South Abilene Aurora, CO 368 2085
13900 East Florida Ave Aurora, CO 189 1071
4301 South Federal Boulevard Englewood, CO 237 1341
14401-14492 East 33rd Place Aurora, CO 445 2519
11701 East 53rd Avenue Denver, CO 416 2355
5401 Oswego Street Denver, CO 273 1547
2630 West 2nd Avenue Denver, CO 53 299
2650 West 2nd Avenue Denver, CO 221 1252
14818 West 6th Avenue Bldg A Golden, Co 494 2799
14828 West 6th Avenue Bldg B Golden, Co 519 2942
2075 South Valentia Denver, CO 131 743
DES MOINES
1550 East Washington Avenue Des Moines, IA 610 4,251
1600 East Washington Avenue Des Moines, IA 209 1,557
5701 NE 17th Street Des Moines, IA 162 918
4121 McDonald Avenue Des Moines, IA 390 2,931
4141 McDonald Avenue Des Moines, IA 706 5,518
4161 McDonald Avenue Des Moines, IA 389 3,046
DETROIT
2654 Elliott Troy, MI (e) 57 334
1731 Thorncroft Troy, MI (e) 331 1,904
1653 E. Maple Troy, MI (e) 192 1,104
47461 Clipper Plymouth, MI (e) 122 723
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
5200-5280 North Broadway 11 171 969 1,140
5977-5995 North Broadway 28 272 1,542 1,814
2952-5978 North Broadway 49 421 2,388 2,809
6400 North Broadway 38 324 1,836 2,160
875 Parfer Street 28 292 1,657 1,949
4721 Ironton Street 27 236 1,336 1,572
833 Parfer Street 17 199 1,126 1,325
11005 West 8th Avenue 9 104 587 691
7100 North Broadway - 7 11 217 1,230 1,447
7100 North Broadway - 8 4 80 451 531
6804 East 48th Avenue 18 256 1,450 1,706
15350 East Hindsdale Drive 8 130 739 869
15353 East Hinsdale Drive 6 98 554 652
15373 East Hinsdale Drive 3 39 222 261
4611 East 46th Avenue 11 131 741 872
East 47th Drive - A 165 477 2,851 3,328
East 47th Drive - B 7 406 2,302 2,708
Centenial Airport Business Pk. 98 646 3,721 4,367
9500 West 49th Street - A 14 434 2,460 2,894
9500 West 49th Street - B 8 236 1,337 1,573
9500 West 49th Street - C 226 605 3,632 4,237
9500 West 49th Street - D 9 273 1,544 1,817
8100 South Park Way - A 31 447 2,533 2,980
8100 South Park Way - B 130 103 712 815
8100 South Park Way - C 39 574 3,252 3,826
451-591 East 124th Avenue 34 391 2,217 2,608
14100 East Jewell 34 400 2,269 2,669
14190 East Jewell 11 200 1,136 1,336
608 Garrison Street 12 267 1,511 1,778
610 Garrison Street 11 265 1,504 1,769
1111 West Evans (A&C) 14 235 1,333 1,568
1111 West Evans (B) 2 30 171 201
15000 West 6th Avenue 57 920 5,224 6,144
14998 West 6th Avenue Bldg E 21 568 3,217 3,785
14998 West 6th Avenue Bldg F 11 271 1,534 1,805
12503 East Euclid Drive 65 1,228 6,961 8,189
6547 South Racine Circle 40 754 4,275 5,029
7800 East Iliff Avenue 9 197 1,118 1,315
2369 South Trenton Way 14 294 1,668 1,962
2370 South Trenton Way 9 201 1,140 1,341
2422 South Trenton Way 12 243 1,374 1,617
2452 South Trenton Way 29 425 2,411 2,836
8122 South Park Lane - A 28 398 2,256 2,654
8122 South Park Lane - B 9 187 1,062 1,249
1600 South Abilene 30 469 2,659 3,128
1620 South Abilene 27 270 1,545 1,815
1640 South Abilene 20 370 2,103 2,473
13900 East Florida Ave 8 190 1,078 1,268
4301 South Federal Boulevard 14 239 1,353 1,592
14401-14492 East 33rd Place 171 452 2,683 3,135
11701 East 53rd Avenue 43 422 2,392 2,814
5401 Oswego Street 28 277 1,571 1,848
2630 West 2nd Avenue 3 53 302 355
2650 West 2nd Avenue 14 223 1,264 1,487
14818 West 6th Avenue Bldg A 47 497 2,843 3,340
14828 West 6th Avenue Bldg B 20 522 2,959 3,481
2075 South Valentia 10 133 751 884
DES MOINES
1550 East Washington Avenue 771 623 5,009 5,632
1600 East Washington Avenue 165 221 1,710 1,931
5701 NE 17th Street 110 175 1,015 1,190
4121 McDonald Avenue 303 416 3,208 3,624
4141 McDonald Avenue 641 787 6,078 6,865
4161 McDonald Avenue 648 467 3,616 4,083
DETROIT
2654 Elliott 46 57 380 437
1731 Thorncroft 20 331 1,924 2,255
1653 E. Maple 44 192 1,148 1,340
47461 Clipper 104 122 827 949
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
5200-5280 North Broadway 6 1977 (q)
5977-5995 North Broadway 10 1978 (q)
2952-5978 North Broadway 15 1978 (q)
6400 North Broadway 11 1982 (q)
875 Parfer Street 10 1975 (q)
4721 Ironton Street 8 1969 (q)
833 Parfer Street 7 1974 (q)
11005 West 8th Avenue 4 1974 (q)
7100 North Broadway - 7 8 1985 (q)
7100 North Broadway - 8 3 1985 (q)
6804 East 48th Avenue 9 1973 (q)
15350 East Hindsdale Drive 5 1987 (q)
15353 East Hinsdale Drive 3 1987 (q)
15373 East Hinsdale Drive 1 1987 (q)
4611 East 46th Avenue 5 1974 (q)
East 47th Drive - A 7 1997 (q)
East 47th Drive - B 5 1997 (q)
Centenial Airport Business Pk. 24 1997 (q)
9500 West 49th Street - A 15 1997 (q)
9500 West 49th Street - B 8 1997 (q)
9500 West 49th Street - C 28 1997 (q)
9500 West 49th Street - D 10 1997 (q)
8100 South Park Way - A 16 1997 (q)
8100 South Park Way - B 6 1984 (q)
8100 South Park Way - C 20 1984 (q)
451-591 East 124th Avenue 14 1979 (q)
14100 East Jewell 14 1980 (q)
14190 East Jewell 7 1980 (q)
608 Garrison Street 10 1984 (q)
610 Garrison Street 9 1984 (q)
1111 West Evans (A&C) 8 1986 (q)
1111 West Evans (B) 1 1986 (q)
15000 West 6th Avenue 33 1985 (q)
14998 West 6th Avenue Bldg E 20 1995 (q)
14998 West 6th Avenue Bldg F 10 1995 (q)
12503 East Euclid Drive 43 1986 (q)
6547 South Racine Circle 27 1996 (q)
7800 East Iliff Avenue 7 1983 (q)
2369 South Trenton Way 10 1983 (q)
2370 South Trenton Way 7 1983 (q)
2422 South Trenton Way 9 1983 (q)
2452 South Trenton Way 15 1983 (q)
8122 South Park Lane - A 14 1986 (q)
8122 South Park Lane - B 7 1986 (q)
1600 South Abilene 17 1986 (q)
1620 South Abilene 10 1986 (q)
1640 South Abilene 13 1986 (q)
13900 East Florida Ave 7 1986 (q)
4301 South Federal Boulevard 8 1997 (q)
14401-14492 East 33rd Place 16 1979 (q)
11701 East 53rd Avenue 15 1985 (q)
5401 Oswego Street 10 1985 (q)
2630 West 2nd Avenue 2 1970 (q)
2650 West 2nd Avenue 8 1970 (q)
14818 West 6th Avenue Bldg A 18 1985 (q)
14828 West 6th Avenue Bldg B 18 1985 (q)
2075 South Valentia 5 1981 (q)
DES MOINES
1550 East Washington Avenue 543 1987 (q)
1600 East Washington Avenue 160 1987 (q)
5701 NE 17th Street 10 1968 (q)
4121 McDonald Avenue 301 1977 (q)
4141 McDonald Avenue 571 1976 (q)
4161 McDonald Avenue 339 1979 (q)
DETROIT
2654 Elliott 29 1986 (q)
1731 Thorncroft 160 1969 (q)
1653 E. Maple 97 1990 (q)
47461 Clipper 123 1992 (q)
</TABLE>
S-4
<PAGE> 79
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
47522 Galleon Plymouth, MI (e) 85 496
4150 Varsity Drive Ann Arbor, MI (e) 168 969
1330 Crooks Road Clawson, MI (e) 234 1,348
12000 Merriman Road Livonia, MI 453 3,651
238 Executive Drive Troy, MI 52 173
256 Executive Drive Troy, MI 44 146
301 Executive Drive Troy, MI 71 293
449 Executive Drive Troy, MI 125 425
501 Executive Drive Troy, MI 71 236
645 Executive Drive Troy, MI 184 940
451 Robbins Drive Troy, MI 96 448
700 Stephenson Highway Troy, MI 250 854
800 Stephenson Highway Troy, MI 558 2,341
1150 Stephenson Highway Troy, MI 178 966
1200 Stephenson Highway Troy, MI 246 1,115
1035 Crooks Road Troy, MI 114 414
1095 Crooks Road Troy, MI 331 1,017
1416 Meijer Drive Troy, MI 94 394
1624 Meijer Drive Troy, MI 236 1,406
1972 Meijer Drive Troy, MI 315 1,301
2112 Meijer Drive Troy, MI 141 714
1621 Northwood Drive Troy, MI 85 351
1707 Northwood Drive Troy, MI 95 262
1749 Northwood Drive Troy, MI 107 477
1788 Northwood Drive Troy, MI 50 196
1821 Northwood Drive Troy, MI 132 523
1826 Northwood Drive Troy, MI 55 208
1864 Northwood Drive Troy, MI 57 190
1902 Northwood Drive Troy, MI 234 807
1921 Northwood Drive Troy, MI 135 589
2230 Elliott Avenue Troy, MI 46 174
2237 Elliott Avenue Troy, MI 48 159
2277 Elliott Avenue Troy, MI 48 188
2291 Elliott Avenue Troy, MI 52 209
2451 Elliott Avenue Troy, MI 78 319
2730 Research Drive Rochester Hills, MI 915 4,215
2791 Research Drive Rochester Hills, MI 557 2,731
2871 Research Drive Rochester Hills, MI 324 1,487
2911 Research Drive Rochester Hills, MI 505 2,136
3011 Research Drive Rochester Hills, MI 457 2,104
2870 Technology Drive Rochester Hills, MI 275 1,262
2890 Technology Drive Rochester Hills, MI 199 902
2900 Technology Drive Rochester Hills, MI 214 977
2920 Technology Drive Rochester Hills, MI 149 671
2930 Technology Drive Rochester Hills, MI 131 594
2950 Technology Drive Rochester Hills, MI 178 819
2960 Technology Drive Rochester Hills, MI 281 1,277
23014 Commerce Drive Farmington Hills, MI 39 203
23028 Commerce Drive Farmington Hills, MI 98 507
23035 Commerce Drive Farmington Hills, MI 71 355
23042 Commerce Drive Farmintgon Hills, MI 67 277
23065 Commerce Drive Farmington Hills, MI 71 408
23070 Commerce Drive Farmington Hills, MI 112 442
23079 Commerce Drive Farmington Hills, MI 68 301
23093 Commerce Drive Farmington Hills, MI 211 1,024
23135 Commerce Drive Farmington Hills, MI 146 701
23149 Commerce Drive Farmington Hills, MI 266 1,005
23163 Commerce Drive Farmington Hills, MI 111 513
23177 Commerce Drive Farmington Hills, MI 175 1,007
23192 Commerce Drive Farmington Hills, MI 41 205
23206 Commerce Drive Farmington Hills, MI 125 531
23290 Commerce Drive Farmington Hills, MI 124 707
23370 Commerce Drive Farmington Hills, MI 59 233
24492 Indoplex Circle Farmington Hills, MI 67 370
24528 Indoplex Circle Farmington Hills, MI 91 536
31800 Plymouth Road - Building 1 Livonia, MI (c) 3,415 19,481
31800 Plymouth Road - Building 2 Livonia, MI (c) 671 3,860
31800 Plymouth Road - Building 3 Livonia, MI (c) 322 1,869
31800 Plymouth Road - Building 6 Livonia, MI (c) 557 3,207
31800 Plymouth Road - Building 7 Livonia, MI (c) 139 832
21477 Bridge Street Southfield, MI 244 1,386
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
47522 Galleon 9 85 505 590
4150 Varsity Drive 8 168 977 1,145
1330 Crooks Road 14 234 1,362 1,596
12000 Merriman Road 1,375 440 5,039 5,479
238 Executive Drive 426 100 551 651
256 Executive Drive 359 85 464 549
301 Executive Drive 487 133 718 851
449 Executive Drive 829 218 1,161 1,379
501 Executive Drive 526 129 704 833
645 Executive Drive 358 234 1,248 1,482
451 Robbins Drive 963 192 1,315 1,507
700 Stephenson Highway 1,361 386 2,079 2,465
800 Stephenson Highway 1,278 654 3,523 4,177
1150 Stephenson Highway 277 200 1,221 1,421
1200 Stephenson Highway 604 284 1,681 1,965
1035 Crooks Road 475 143 860 1,003
1095 Crooks Road 947 360 1,935 2,295
1416 Meijer Drive 388 121 755 876
1624 Meijer Drive 800 373 2,069 2,442
1972 Meijer Drive 726 372 1,970 2,342
2112 Meijer Drive 608 229 1,234 1,463
1621 Northwood Drive 1,041 215 1,262 1,477
1707 Northwood Drive 1,156 239 1,274 1,513
1749 Northwood Drive 464 164 884 1,048
1788 Northwood Drive 461 103 604 707
1821 Northwood Drive 745 220 1,180 1,400
1826 Northwood Drive 395 103 555 658
1864 Northwood Drive 441 107 581 688
1902 Northwood Drive 2,163 511 2,693 3,204
1921 Northwood Drive 1,164 291 1,597 1,888
2230 Elliott Avenue 419 95 544 639
2237 Elliott Avenue 419 90 536 626
2277 Elliott Avenue 438 104 570 674
2291 Elliott Avenue 324 86 499 585
2451 Elliott Avenue 671 164 904 1,068
2730 Research Drive 545 903 4,772 5,675
2791 Research Drive 290 560 3,018 3,578
2871 Research Drive 265 327 1,749 2,076
2911 Research Drive 375 504 2,512 3,016
3011 Research Drive 321 457 2,425 2,882
2870 Technology Drive 231 279 1,489 1,768
2890 Technology Drive 206 206 1,101 1,307
2900 Technology Drive 491 219 1,463 1,682
2920 Technology Drive 155 153 822 975
2930 Technology Drive 382 138 969 1,107
2950 Technology Drive 256 185 1,068 1,253
2960 Technology Drive 242 283 1,517 1,800
23014 Commerce Drive 124 56 310 366
23028 Commerce Drive 213 125 693 818
23035 Commerce Drive 178 93 511 604
23042 Commerce Drive 304 89 559 648
23065 Commerce Drive 134 93 520 613
23070 Commerce Drive 658 125 1,087 1,212
23079 Commerce Drive 181 79 471 550
23093 Commerce Drive 628 295 1,568 1,863
23135 Commerce Drive 226 158 915 1,073
23149 Commerce Drive 459 274 1,456 1,730
23163 Commerce Drive 238 138 724 862
23177 Commerce Drive 513 254 1,441 1,695
23192 Commerce Drive 134 58 322 380
23206 Commerce Drive 463 137 982 1,119
23290 Commerce Drive 531 210 1,152 1,362
23370 Commerce Drive 139 66 365 431
24492 Indoplex Circle 724 175 986 1,161
24528 Indoplex Circle 1,081 263 1,445 1,708
31800 Plymouth Road - Building 1 2,261 3,417 21,740 25,157
31800 Plymouth Road - Building 2 172 674 4,029 4,703
31800 Plymouth Road - Building 3 151 324 2,018 2,342
31800 Plymouth Road - Building 6 989 560 4,193 4,753
31800 Plymouth Road - Building 7 29 141 859 1,000
21477 Bridge Street 219 253 1,596 1,849
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
47522 Galleon 42 1990 (q)
4150 Varsity Drive 81 1986 (q)
1330 Crooks Road 115 1960 (q)
12000 Merriman Road 2,219 1975 (q)
238 Executive Drive 227 1973 (q)
256 Executive Drive 184 1974 (q)
301 Executive Drive 293 1974 (q)
449 Executive Drive 461 1975 (q)
501 Executive Drive 219 1984 (q)
645 Executive Drive 558 1972 (q)
451 Robbins Drive 437 1975 (q)
700 Stephenson Highway 760 1978 (q)
800 Stephenson Highway 1,269 1979 (q)
1150 Stephenson Highway 396 1982 (q)
1200 Stephenson Highway 534 1980 (q)
1035 Crooks Road 311 1980 (q)
1095 Crooks Road 640 1986 (q)
1416 Meijer Drive 246 1980 (q)
1624 Meijer Drive 706 1984 (q)
1972 Meijer Drive 637 1985 (q)
2112 Meijer Drive 460 1980 (q)
1621 Northwood Drive 501 1977 (q)
1707 Northwood Drive 435 1983 (q)
1749 Northwood Drive 346 1977 (q)
1788 Northwood Drive 231 1977 (q)
1821 Northwood Drive 465 1977 (q)
1826 Northwood Drive 214 1977 (q)
1864 Northwood Drive 225 1977 (q)
1902 Northwood Drive 1,087 1977 (q)
1921 Northwood Drive 655 1977 (q)
2230 Elliott Avenue 222 1974 (q)
2237 Elliott Avenue 198 1974 (q)
2277 Elliott Avenue 219 1975 (q)
2291 Elliott Avenue 209 1974 (q)
2451 Elliott Avenue 359 1974 (q)
2730 Research Drive 1,535 1988 (q)
2791 Research Drive 921 1991 (q)
2871 Research Drive 533 1991 (q)
2911 Research Drive 799 1992 (q)
3011 Research Drive 776 1988 (q)
2870 Technology Drive 471 1988 (q)
2890 Technology Drive 332 1991 (q)
2900 Technology Drive 458 1992 (q)
2920 Technology Drive 241 1992 (q)
2930 Technology Drive 265 1991 (q)
2950 Technology Drive 312 1991 (q)
2960 Technology Drive 455 1992 (q)
23014 Commerce Drive 96 1983 (q)
23028 Commerce Drive 238 1983 (q)
23035 Commerce Drive 165 1983 (q)
23042 Commerce Drive 181 1983 (q)
23065 Commerce Drive 165 1983 (q)
23070 Commerce Drive 298 1983 (q)
23079 Commerce Drive 153 1983 (q)
23093 Commerce Drive 539 1983 (q)
23135 Commerce Drive 290 1986 (q)
23149 Commerce Drive 482 1985 (q)
23163 Commerce Drive 229 1986 (q)
23177 Commerce Drive 502 1986 (q)
23192 Commerce Drive 94 1986 (q)
23206 Commerce Drive 242 1985 (q)
23290 Commerce Drive 439 1980 (q)
23370 Commerce Drive 124 1980 (q)
24492 Indoplex Circle 386 1976 (q)
24528 Indoplex Circle 598 1976 (q)
31800 Plymouth Road - Building 1 1,951 1968/89 (q)
31800 Plymouth Road - Building 2 369 1968/89 (q)
31800 Plymouth Road - Building 3 189 1968/89 (q)
31800 Plymouth Road - Building 6 375 1968/89 (q)
31800 Plymouth Road - Building 7 77 1968/89 (q)
21477 Bridge Street 119 1986 (q)
</TABLE>
S-5
<PAGE> 80
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
2965 Technology Drive Rochester Hills, MI (d) 964 2,277
1451 Lincoln Avenue Madison Heights, MI (d) 299 1,703
4400 Purks Drive Auburn Hills, MI (d) 602 3,410
4177A Varsity Drive Ann Arbor, MI (d) 90 536
6515 Cobb Drive Sterling Heights, MI (d) 305 1,753
32450 N Avis Drive Madison Heights, MI 281 1,590
32200 N Avis Drive Madison Heights, MI 408 2,311
32440-32442 Industrial Drive Madison Heights, MI 120 679
32450 Industrial Drive Madison Heights, MI 65 369
11813 Hubbard Livonia, MI 177 1,001
11844 Hubbard Livonia, MI 189 1,069
11866 Hubbard Livonia, MI 189 1,073
12050-12190 Hubbard (l) Livonia, MI 425 2,410
38200 Plymouth Road Livonia, MI 1,215 --
38220 Plymouth Road Livonia, MI 756 --
38300 Plymouth Road Livonia, MI 729 --
12707 Eckles Road Plymouth, MI 255 1,445
9300-9328 Harrison Rd Romulus, MI 147 834
9330-9358 Harrison Rd Romulus, MI 81 456
28420-28448 Highland Rd Romulus, MI 143 809
28450-28478 Highland Rd Romulus, MI 81 461
28421-28449 Highland Rd Romulus, MI 109 617
28451-28479 Highland Rd Romulus, MI 107 608
28825-28909 Highland Rd Romulus, MI 70 395
28933-29017 Highland Rd Romulus, MI 112 634
28824-28908 Highland Rd Romulus, MI 134 760
28932-29016 Highland Rd Romulus, MI 123 694
9710-9734 Harrison Rd Romulus, MI 125 706
9740-9772 Harrison Rd Romulus, MI 132 749
9840-9868 Harrison Rd Romulus, MI 144 815
9800-9824 Harrison Rd Romulus, MI 117 664
29265-29285 Airport Dr Romulus, MI 140 794
29185-29225 Airport Dr Romulus, MI 140 792
29149-29165 Airport Dr Romulus, MI 216 1,225
29101-29115 Airport Dr Romulus, MI 130 738
29031-29045 Airport Dr Romulus, MI 124 704
29050-29062 Airport Dr Romulus, MI 127 718
29120-29134 Airport Dr Romulus, MI 161 912
29200-29214 Airport Dr Romulus, MI 170 963
9301-9339 Middlebelt Rd Romulus, MI 124 703
21405 Trolley Industrial Drive Taylor, MI 758 4,293
26980 Trolley Industrial Drive Taylor, MI 450 2,550
GRAND RAPIDS
3232 Kraft Avenue Grand Rapids, MI (e) 810 4,792
8181 Logistics Drive Grand Rapids, MI (e) 803 5,263
5062 Kendrick Court SE Grand Rapids, MI (e) 142 815
2 84th Street SW Byron Center, MI 117 685
100 84th Street SW Byron Center, MI 255 1,477
150 84th Street SW Byron Center, MI 47 286
511 76th Street SW Grand Rapids, MI 758 4,355
553 76th Street SW Grand Rapids, MI 32 191
555 76th Street SW Grand Rapids, MI 776 4,458
2925 Remico Avenue SW Grandville, MI 281 1,617
2935 Walkent Court NW Grand Rapids, MI 285 1,663
3300 Kraft Avenue SE Grand Rapids, MI 838 4,810
3366 Kraft Avenue SE Grand Rapids, MI 833 4,780
4939 Starr Avenue Grand Rapids, MI 117 681
5001 Kendrick Court SE Grand Rapids, MI 210 1,221
5050 Kendrick Court SE Grand Rapids, MI (c) 1,721 11,433
5015 52nd Street SE Grand Rapids, MI (c) 234 1,321
5025 28th Street Grand Rapids, MI 77 488
5079 33rd Street SE Grand Rapids, MI 525 3,018
5333 33rd Street SE Grand Rapids, MI 480 2,761
5130 Patterson Avenue SE Grand Rapids, MI 137 793
425 Gordon Industrial Court Grand Rapids, MI (d) 611 3,747
2851 Prairie Street Grandville, MI (d) 377 2,778
2945 Walkent Court Grand Rapids, MI (d) 310 2,074
537 76th Street Grand Rapids, MI (d) 255 1,456
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
2965 Technology Drive 123 964 2,400 3,364
1451 Lincoln Avenue 452 305 2,149 2,454
4400 Purks Drive 112 612 3,512 4,124
4177A Varsity Drive 78 90 614 704
6515 Cobb Drive 29 305 1,782 2,087
32450 N Avis Drive 63 286 1,648 1,934
32200 N Avis Drive 94 411 2,402 2,813
32440-32442 Industrial Drive 83 123 759 882
32450 Industrial Drive 36 66 404 470
11813 Hubbard 42 180 1,040 1,220
11844 Hubbard 72 191 1,139 1,330
11866 Hubbard 28 191 1,099 1,290
12050-12190 Hubbard (l) 275 428 2,682 3,110
38200 Plymouth Road 4,610 1,268 4,557 5,825
38220 Plymouth Road 2,487 756 2,487 3,243
38300 Plymouth Road 3,268 729 3,268 3,997
12707 Eckles Road 106 267 1,539 1,806
9300-9328 Harrison Rd 118 154 945 1,099
9330-9358 Harrison Rd 90 85 542 627
28420-28448 Highland Rd 122 149 925 1,074
28450-28478 Highland Rd 180 85 637 722
28421-28449 Highland Rd 186 114 798 912
28451-28479 Highland Rd 98 112 701 813
28825-28909 Highland Rd 112 73 504 577
28933-29017 Highland Rd 117 117 746 863
28824-28908 Highland Rd 189 140 943 1,083
28932-29016 Highland Rd 99 128 788 916
9710-9734 Harrison Rd 131 130 832 962
9740-9772 Harrison Rd 120 138 863 1,001
9840-9868 Harrison Rd 112 150 921 1,071
9800-9824 Harrison Rd 88 123 746 869
29265-29285 Airport Dr 163 147 950 1,097
29185-29225 Airport Dr 226 146 1,012 1,158
29149-29165 Airport Dr 233 226 1,448 1,674
29101-29115 Airport Dr 214 136 946 1,082
29031-29045 Airport Dr 96 130 794 924
29050-29062 Airport Dr 91 133 803 936
29120-29134 Airport Dr 150 168 1,055 1,223
29200-29214 Airport Dr 240 178 1,195 1,373
9301-9339 Middlebelt Rd 111 130 808 938
21405 Trolley Industrial Drive 126 774 4,403 5,177
26980 Trolley Industrial Drive 96 463 2,633 3,096
GRAND RAPIDS
3232 Kraft Avenue 1,062 874 5,790 6,664
8181 Logistics Drive 675 864 5,877 6,741
5062 Kendrick Court SE 13 142 828 970
2 84th Street SW 287 117 972 1,089
100 84th Street SW 101 255 1,578 1,833
150 84th Street SW 45 47 331 378
511 76th Street SW 215 758 4,570 5,328
553 76th Street SW 22 32 213 245
555 76th Street SW 97 776 4,555 5,331
2925 Remico Avenue SW 8 281 1,625 1,906
2935 Walkent Court NW 46 285 1,709 1,994
3300 Kraft Avenue SE 130 838 4,940 5,778
3366 Kraft Avenue SE 380 833 5,160 5,993
4939 Starr Avenue 29 117 710 827
5001 Kendrick Court SE 38 210 1,259 1,469
5050 Kendrick Court SE 4,568 1,721 16,001 17,722
5015 52nd Street SE 34 234 1,355 1,589
5025 28th Street 17 77 505 582
5079 33rd Street SE 4 525 3,022 3,547
5333 33rd Street SE 48 480 2,809 3,289
5130 Patterson Avenue SE 20 137 813 950
425 Gordon Industrial Court 1,331 644 5,045 5,689
2851 Prairie Street 240 445 2,950 3,395
2945 Walkent Court 296 352 2,328 2,680
537 76th Street 330 258 1,783 2,041
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
2965 Technology Drive 172 1995 (q)
1451 Lincoln Avenue 142 1967 (q)
4400 Purks Drive 226 1987 (q)
4177A Varsity Drive 92 1993 (q)
6515 Cobb Drive 148 1984 (q)
32450 N Avis Drive 78 1974 (q)
32200 N Avis Drive 113 1973 (q)
32440-32442 Industrial Drive 44 1979 (q)
32450 Industrial Drive 19 1979 (q)
11813 Hubbard 50 1979 (q)
11844 Hubbard 85 1979 (q)
11866 Hubbard 52 1979 (q)
12050-12190 Hubbard (l) 131 1981 (q)
38200 Plymouth Road 93 1997 (q)
38220 Plymouth Road 1 1988 (q)
38300 Plymouth Road 1 1997 (q)
12707 Eckles Road 54 1990 (q)
9300-9328 Harrison Rd 26 1978 (q)
9330-9358 Harrison Rd 15 1978 (q)
28420-28448 Highland Rd 26 1979 (q)
28450-28478 Highland Rd 15 1979 (q)
28421-28449 Highland Rd 21 1980 (q)
28451-28479 Highland Rd 19 1980 (q)
28825-28909 Highland Rd 14 1981 (q)
28933-29017 Highland Rd 22 1982 (q)
28824-28908 Highland Rd 25 1982 (q)
28932-29016 Highland Rd 22 1982 (q)
9710-9734 Harrison Rd 27 1987 (q)
9740-9772 Harrison Rd 26 1987 (q)
9840-9868 Harrison Rd 27 1987 (q)
9800-9824 Harrison Rd 21 1987 (q)
29265-29285 Airport Dr 26 1983 (q)
29185-29225 Airport Dr 26 1983 (q)
29149-29165 Airport Dr 39 1984 (q)
29101-29115 Airport Dr 27 1985 (q)
29031-29045 Airport Dr 22 1985 (q)
29050-29062 Airport Dr 22 1986 (q)
29120-29134 Airport Dr 29 1986 (q)
29200-29214 Airport Dr 31 1985 (q)
9301-9339 Middlebelt Rd 23 1983 (q)
21405 Trolley Industrial Drive 91 1971 (q)
26980 Trolley Industrial Drive 22 1997 (q)
GRAND RAPIDS
3232 Kraft Avenue 551 1988 (q)
8181 Logistics Drive 561 1990 (q)
5062 Kendrick Court SE 77 1987 (q)
2 84th Street SW 97 1986 (q)
100 84th Street SW 151 1979 (q)
150 84th Street SW 39 1977 (q)
511 76th Street SW 418 1986 (q)
553 76th Street SW 20 1985 (q)
555 76th Street SW 409 1987 (q)
2925 Remico Avenue SW 142 1988 (q)
2935 Walkent Court NW 151 1991 (q)
3300 Kraft Avenue SE 540 1987 (q)
3366 Kraft Avenue SE 483 1987 (q)
4939 Starr Avenue 72 1985 (q)
5001 Kendrick Court SE 118 1983 (q)
5050 Kendrick Court SE 1,312 1988 (q)
5015 52nd Street SE 118 1987 (q)
5025 28th Street 76 1967 (q)
5079 33rd Street SE 264 1990 (q)
5333 33rd Street SE 282 1991 (q)
5130 Patterson Avenue SE 78 1987 (q)
425 Gordon Industrial Court 411 1990 (q)
2851 Prairie Street 277 1989 (q)
2945 Walkent Court 219 1993 (q)
537 76th Street 117 1987 (q)
</TABLE>
S-6
<PAGE> 81
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
HOUSTON
2102-2314 Edwards Street Houston, TX 348 1,973
4545 Eastpark Drive Houston, TX 235 1,331
3351 Ranch St Houston, TX 272 1,541
3851 Yale St Houston, TX 413 2,343
3337-3347 Ranch Street Houston, TX 227 1,287
8505 N Loop East Houston, TX 439 2,489
4749-4799 Eastpark Dr Houston, TX 594 3,368
4851 Homestead Road Houston, TX 491 2,782
3365-3385 Ranch Street Houston, TX 284 1,611
5050 Campbell Road Houston, TX 461 2,610
4300 Pine Timbers Houston, TX 489 2,769
10600 Hampstead Houston, TX 105 597
2300 Fairway Park Dr Houston, TX 86 488
7969 Blakenship Houston, TX 174 987
8001 Kempwood Houston, TX 98 558
7901 Blankenship Houston, TX 136 772
2500-2530 Fairway Park Drive Houston, TX 766 4,342
6550 Longpointe Houston, TX 362 2,050
1815 Turning Basin Dr Houston, TX 487 2,761
1819 Turning Basin Dr Houston, TX 231 1,308
4545 Mossford Dr Houston, TX 237 1,342
1805 Turning Basin Drive Houston, TX 564 3,197
7000 Empire Drive Houston, TX (k) 450 2,552
9777 West Gulfbank Drive Houston, TX (k) 1,217 6,899
INDIANAPOLIS
2900 N Shadeland Avenue Indianapolis, IN (f) 2,394 13,565
2400 N Shadeland Avenue Indianapolis, IN 142 802
2402 N Shadeland Avenue Indianapolis, IN 466 2,640
7901 West 21st Street Indianapolis, IN 1,064 6,027
1445 Brookville Way Indianapolis, IN (f) 459 2,603
1440 Brookville Way Indianapolis, IN (f) 665 3,770
1240 Brookville Way Indianapolis, IN (f) 247 1,402
1220 Brookville Way Indianapolis, IN (f) 223 40
1345 Brookville Way Indianapolis, IN (g) 586 3,321
1350 Brookville Way Indianapolis, IN (f) 205 1,161
1315 Sadlier Circle E Dr Indianapolis, IN (g) 57 322
1341 Sadlier Circle E Dr Indianapolis, IN (g) 131 743
1322-1438 Sadlier Circle E Dr Indianapolis, IN (g) 145 822
1327-1441 Sadlier Circle E Dr Indianapolis, IN (g) 218 1,234
1304 Sadlier Circle E Dr Indianapolis, IN (g) 71 405
1402 Sadlier Circle E Dr Indianapolis, IN (g) 165 934
1504 Sadlier Circle E Dr Indianapolis, IN (g) 219 1,238
1311 Sadlier Circle E Dr Indianapolis, IN (g) 54 304
1365 Sadlier Circle E Dr Indianapolis, IN (g) 121 688
1352-1354 Sadlier Circle E Dr Indianapolis, IN (g) 178 1,008
1335 Sadlier Circle E Dr Indianapolis, IN (g) 81 460
1327 Sadlier Circle E Dr Indianapolis, IN (g) 52 295
1425 Sadlier Circle E Dr Indianapolis, IN (g) 21 117
1230 Brookville Way Indianapolis, IN (f) 103 586
6951 E 30th St Indianapolis, IN 256 1,449
6701 E 30th St Indianapolis, IN 78 443
6737 E 30th St Indianapolis, IN 385 2,181
1225 Brookville Way Indianapolis, IN 60 --
6555 E 30th St Indianapolis, IN 840 4,760
2432-2436 Shadeland Indianapolis, IN 212 1,199
8402-8440 E 33rd St Indianapolis, IN 222 1,260
8520-8630 E 33rd St Indianapolis, IN 326 1,848
8710-8768 E 33rd St Indianapolis, IN 175 993
3316-3346 N. Pagosa Court Indianapolis, IN 325 1,842
3331 Raton Court Indianapolis, IN 138 802
4430 Airport Expressway Indianapolis, IN 1,068 6,789
6751 E 30th St Indianapolis, IN 728 2,837
LONG ISLAND
1140 Motor Parkway Hauppauge, NY 1,034 5,861
10 Edison Street Amityville, NY 183 1,036
120 Secatogue Ave Farmingdale, NY 375 2,123
100 Lauman Lane Hicksville, NY 216 1,226
200 Finn Court Farmingdale, NY 619 3,506
243 Dixon Avenue Amityville, NY 93 527
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
HOUSTON
2102-2314 Edwards Street 71 359 2,034 2,392
4545 Eastpark Drive 33 240 1,360 1,599
3351 Ranch St 38 278 1,574 1,851
3851 Yale St 71 424 2,404 2,827
3337-3347 Ranch Street 36 233 1,318 1,550
8505 N Loop East 66 449 2,546 2,994
4749-4799 Eastpark Dr 107 611 3,459 4,069
4851 Homestead Road 87 504 2,857 3,360
3365-3385 Ranch Street 38 290 1,644 1,933
5050 Campbell Road 61 470 2,663 3,132
4300 Pine Timbers 69 499 2,829 3,327
10600 Hampstead 25 109 619 727
2300 Fairway Park Dr 22 90 507 596
7969 Blakenship 31 179 1,014 1,192
8001 Kempwood 20 102 575 676
7901 Blankenship 26 140 795 934
2500-2530 Fairway Park Drive 168 792 4,485 5,276
6550 Longpointe 53 370 2,096 2,465
1815 Turning Basin Dr 290 531 3,008 3,538
1819 Turning Basin Dr 133 251 1,422 1,672
4545 Mossford Dr 54 245 1,389 1,633
1805 Turning Basin Drive 341 616 3,487 4,102
7000 Empire Drive 23 454 2,571 3,025
9777 West Gulfbank Drive 59 1,226 6,949 8,175
INDIANAPOLIS
2900 N Shadeland Avenue 1,786 2,496 15,249 17,745
2400 N Shadeland Avenue 51 149 846 995
2402 N Shadeland Avenue 231 490 2,847 3,337
7901 West 21st Street 114 1,079 6,126 7,205
1445 Brookville Way 266 476 2,852 3,328
1440 Brookville Way 248 685 3,998 4,683
1240 Brookville Way 190 258 1,581 1,839
1220 Brookville Way 31 226 68 294
1345 Brookville Way 268 601 3,574 4,175
1350 Brookville Way 80 211 1,235 1,446
1315 Sadlier Circle E Dr 48 61 366 427
1341 Sadlier Circle E Dr 50 134 790 924
1322-1438 Sadlier Circle E Dr 104 152 919 1,071
1327-1441 Sadlier Circle E Dr 101 225 1,328 1,553
1304 Sadlier Circle E Dr 50 75 451 526
1402 Sadlier Circle E Dr 84 171 1,012 1,183
1504 Sadlier Circle E Dr 74 226 1,305 1,531
1311 Sadlier Circle E Dr 84 57 385 442
1365 Sadlier Circle E Dr 57 126 740 866
1352-1354 Sadlier Circle E Dr 88 184 1,090 1,274
1335 Sadlier Circle E Dr 49 85 505 590
1327 Sadlier Circle E Dr 25 55 317 372
1425 Sadlier Circle E Dr 24 23 139 162
1230 Brookville Way 46 109 626 735
6951 E 30th St 93 265 1,533 1,798
6701 E 30th St 40 82 479 561
6737 E 30th St 143 398 2,311 2,709
1225 Brookville Way 396 68 388 456
6555 E 30th St 427 484 5,543 6,027
2432-2436 Shadeland 178 230 1,359 1,589
8402-8440 E 33rd St 55 230 1,307 1,537
8520-8630 E 33rd St 249 336 2,087 2,423
8710-8768 E 33rd St 37 187 1,018 1,205
3316-3346 N. Pagosa Court 140 335 1,972 2,307
3331 Raton Court 40 144 836 980
4430 Airport Expressway 900 1,238 7,519 8,757
6751 E 30th St 106 741 2,930 3,671
LONG ISLAND
1140 Motor Parkway 157 1,051 6,001 7,052
10 Edison Street 74 188 1,105 1,293
120 Secatogue Ave 65 382 2,181 2,563
100 Lauman Lane 66 222 1,286 1,508
200 Finn Court 132 630 3,627 4,257
243 Dixon Avenue 44 96 568 664
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
HOUSTON
2102-2314 Edwards Street 4 1961 (q)
4545 Eastpark Drive 3 1972 (q)
3351 Ranch St 3 1970 (q)
3851 Yale St 5 1971 (q)
3337-3347 Ranch Street 3 1970 (q)
8505 N Loop East 5 1981 (q)
4749-4799 Eastpark Dr 7 1979 (q)
4851 Homestead Road 6 1973 (q)
3365-3385 Ranch Street 3 1970 (q)
5050 Campbell Road 6 1970 (q)
4300 Pine Timbers 6 1980 (q)
10600 Hampstead 1 1974 (q)
2300 Fairway Park Dr 1 1974 (q)
7969 Blakenship 2 1972 (q)
8001 Kempwood 1 1972 (q)
7901 Blankenship 2 1972 (q)
2500-2530 Fairway Park Drive 9 1974 (q)
6550 Longpointe 4 1980 (q)
1815 Turning Basin Dr 6 1980 (q)
1819 Turning Basin Dr 3 1980 (q)
4545 Mossford Dr 3 1975 (q)
1805 Turning Basin Drive 7 1980 (q)
7000 Empire Drive 5 1980 (q)
9777 West Gulfbank Drive 14 1980 (q)
INDIANAPOLIS
2900 N Shadeland Avenue 721 1957/1992 (q)
2400 N Shadeland Avenue 11 1970 (q)
2402 N Shadeland Avenue 36 1970 (q)
7901 West 21st Street 51 1985 (q)
1445 Brookville Way 138 1989 (q)
1440 Brookville Way 181 1990 (q)
1240 Brookville Way 86 1990 (q)
1220 Brookville Way 3 1990 (q)
1345 Brookville Way 166 1992 (q)
1350 Brookville Way 56 1994 (q)
1315 Sadlier Circle E Dr 16 1970/1992 (q)
1341 Sadlier Circle E Dr 36 1971/1992 (q)
1322-1438 Sadlier Circle E Dr 44 1971/1992 (q)
1327-1441 Sadlier Circle E Dr 66 1992 (q)
1304 Sadlier Circle E Dr 22 1971/1992 (q)
1402 Sadlier Circle E Dr 46 1970/1992 (q)
1504 Sadlier Circle E Dr 59 1971/1992 (q)
1311 Sadlier Circle E Dr 26 1971/1992 (q)
1365 Sadlier Circle E Dr 33 1971/1992 (q)
1352-1354 Sadlier Circle E Dr 49 1970/1992 (q)
1335 Sadlier Circle E Dr 23 1971/1992 (q)
1327 Sadlier Circle E Dr 15 1971/1992 (q)
1425 Sadlier Circle E Dr 6 1971/1992 (q)
1230 Brookville Way 28 1995 (q)
6951 E 30th St 70 1995 (q)
6701 E 30th St 22 1995 (q)
6737 E 30th St 106 1995 (q)
1225 Brookville Way 5 1997 (q)
6555 E 30th St 210 1969/1981 (q)
2432-2436 Shadeland 50 1968 (q)
8402-8440 E 33rd St 41 1977 (q)
8520-8630 E 33rd St 75 1976 (q)
8710-8768 E 33rd St 33 1979 (q)
3316-3346 N. Pagosa Court 61 1977 (q)
3331 Raton Court 26 1979 (q)
4430 Airport Expressway 209 1970 (q)
6751 E 30th St 12 1997 (q)
LONG ISLAND
1140 Motor Parkway 149 1978 (q)
10 Edison Street 27 1971 (q)
120 Secatogue Ave 54 1957 (q)
100 Lauman Lane 32 1968 (q)
200 Finn Court 89 1965 (q)
243 Dixon Avenue 14 1978 (q)
</TABLE>
S-7
<PAGE> 82
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) -----------------------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
717 Broadway Avenue Holbrook, NY 790 4,474
725 Broadway Avenue Holbrook, NY 643 3,644
270 Duffy Avenue Hicksville, NY 1,305 7,393
280 Duffy Avenue Hicksville, NY 478 2,707
575 Underhill Boulevard Syosset, NY 2,714 15,382
5 Sidney Court Lindenhurst, NY 148 840
7 Sidney Court Lindenhurst, NY 172 975
450 Commack Road Deer Park, NY 304 1,720
99 Layfayette Drive Syosset, NY 1,607 9,106
65 East Bethpage Road Plainview, NY 198 1,122
171 Milbar Boulevard Farmingdale, NY 454 2,574
95 Horseblock Road Yaphank, NY 1,313 7,439
151-171 East 2nd Street Huntington, NY 497 2,815
171-175 East 2nd Street Huntington, NY 493 2,792
35 Bloomingdale Road Hicksville, NY 190 1,076
15-39 Tec Street Hicksville, NY 164 930
100 Tec Street Hicksville, NY 237 1,340
51-89 Tec Street Hicksville, NY 207 1,171
502 Old Country Road Hicksville, NY 95 536
80-98 Tec Street Hicksville, NY 123 700
201-233 Park Avenue Hicksville, NY 349 1,979
6851 Jericho Turnpike Syosset, NY 1,570 8,896
One Fairchild Court Plainview, NY 315 1,786
79 Express Street Plainview, NY 417 2,363
92 Central Avenue Farmingdale, NY 837 4,745
160 Engineer Drive Hicksville, NY 148 836
260 Engineers Drive Hicksville, NY 264 1,494
87-119 Engineers Dr (l) Hicksville, NY 181 1,023
950-970 South Broadway Hicksville, NY 250 1,418
290 Duffy Avenue Hicksville, NY (h) 383 2,171
185 Price Parkway Farmingdale, NY 611 3,464
62 Alpha Plaza Hicksville, NY 155 877
90 Alpha Plaza Hicksville, NY 127 717
325 Duffy Avenue Hicksville, NY 480 2,720
939 Motor Parkway Hauppauge, NY 105 596
2070 5th Avenue Ronkonkoma, NY 383 2,171
200 13th Avenue Ronkonkoma, NY 313 1,776
100 13th Avenue Ronkonkoma, NY 348 1,973
1 Comac Loop Ronkonkoma, NY 348 1,973
80 13th Avenue Ronkonkoma, NY 418 2,368
90 13th Avenue Ronkonkoma, NY 383 2,171
33 Comac Loop Ronkonkoma, NY 383 2,171
101-125 Comac Street Ronkonkoma, NY 905 5,131
MILWAUKEE
N25 W23050 Paul Road Pewaukee, WI 474 2,723
N25 W23255 Paul Road Pewaukee, WI 571 3,270
N27 W23293 Roundy Drive Pewaukee, WI 412 2,837
6523 N. Sydney Place Glendale, WI 172 976
8800 W Bradley Milwaukee, WI 375 2,125
1435 North 113th St Wauwatosa, WI 300 1,699
11217-43 W. Becher St West Allis, WI 148 841
2152 S 114th Street West Allis, WI 326 1,846
4560 N. 124th Street Wauwatosa, WI 118 667
12221 W. Feerick Street Wauwatosa, WI 210 1,190
MINNEAPOLIS
2700 Freeway Boulevard Brooklyn Center, MN (e) 392 2,318
6507-6545 Cecilia Circle Bloomington, MN 357 1,320
6403-6545 Cecilia Drive Bloomington, MN 366 1,363
1275 Corporate Center Drive Eagan, MN 80 357
1279 Corporate Center Drive Eagan, MN 105 357
2815 Eagandale Boulevard Eagan, MN 80 357
6201 West 111th Street Bloomington, MN (c) 1,358 8,622
6925-6943 Washington Avenue Edina, MN 117 504
6955-6973 Washington Avenue Edina, MN 117 486
7251-7267 Washington Avenue Edina, MN 129 382
7301-7325 Washington Avenue Edina, MN 174 391
7101 Winnetka Avenue North Brooklyn Park, MN (c) 2,195 6,084
7600 Golden Triangle Drive Eden Prairie, MN 566 1,394
7830-7848 12th Avenue South Bloomington, MN 376 1,346
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
717 Broadway Avenue 135 805 4,594 5,399
725 Broadway Avenue 118 656 3,749 4,405
270 Duffy Avenue 156 1,319 7,535 8,854
280 Duffy Avenue 47 483 2,749 3,232
575 Underhill Boulevard 301 2,741 15,656 18,397
5 Sidney Court 63 152 899 1,051
7 Sidney Court 46 176 1,017 1,193
450 Commack Road 80 310 1,794 2,104
99 Layfayette Drive 221 1,629 9,305 10,934
65 East Bethpage Road 44 202 1,162 1,364
171 Milbar Boulevard 88 461 2,655 3,116
95 Horseblock Road 227 1,331 7,648 8,979
151-171 East 2nd Street 66 503 2,875 3,378
171-175 East 2nd Street 80 498 2,867 3,365
35 Bloomingdale Road 61 194 1,133 1,327
15-39 Tec Street 54 167 981 1,148
100 Tec Street 33 240 1,370 1,610
51-89 Tec Street 38 210 1,206 1,416
502 Old Country Road 20 97 554 651
80-98 Tec Street 23 126 720 846
201-233 Park Avenue 70 354 2,044 2,398
6851 Jericho Turnpike 231 1,586 9,111 10,697
One Fairchild Court 80 322 1,859 2,181
79 Express Street 69 425 2,424 2,849
92 Central Avenue 111 846 4,847 5,693
160 Engineer Drive 45 152 877 1,029
260 Engineers Drive 58 270 1,546 1,816
87-119 Engineers Dr (l) 57 185 1,076 1,261
950-970 South Broadway 117 256 1,529 1,785
290 Duffy Avenue 258 389 2,423 2,812
185 Price Parkway 98 622 3,551 4,173
62 Alpha Plaza 29 159 902 1,061
90 Alpha Plaza 31 130 745 875
325 Duffy Avenue 53 488 2,765 3,253
939 Motor Parkway 47 112 636 748
2070 5th Avenue 18 386 2,186 2,572
200 13th Avenue 18 316 1,791 2,107
100 13th Avenue 19 351 1,989 2,340
1 Comac Loop 19 351 1,989 2,340
80 13th Avenue 22 421 2,387 2,808
90 13th Avenue 24 387 2,191 2,578
33 Comac Loop 20 386 2,188 2,574
101-125 Comac Street 43 912 5,167 6,079
MILWAUKEE
N25 W23050 Paul Road 12 474 2,735 3,209
N25 W23255 Paul Road 1 571 3,271 3,842
N27 W23293 Roundy Drive 1 412 2,838 3,250
6523 N. Sydney Place 140 176 1,112 1,288
8800 W Bradley 130 388 2,242 2,630
1435 North 113th St 99 310 1,788 2,098
11217-43 W. Becher St 59 155 893 1,048
2152 S 114th Street 97 339 1,930 2,269
4560 N. 124th Street 84 129 740 869
12221 W. Feerick Street 81 221 1,260 1,481
MINNEAPOLIS
2700 Freeway Boulevard 422 415 2,717 3,132
6507-6545 Cecilia Circle 352 386 1,643 2,029
6403-6545 Cecilia Drive 446 395 1,780 2,175
1275 Corporate Center Drive 41 93 385 478
1279 Corporate Center Drive 90 109 443 552
2815 Eagandale Boulevard 172 97 512 609
6201 West 111th Street 3,763 1,499 12,244 13,743
6925-6943 Washington Avenue 538 237 922 1,159
6955-6973 Washington Avenue 386 191 798 989
7251-7267 Washington Avenue 422 182 751 933
7301-7325 Washington Avenue 476 193 848 1,041
7101 Winnetka Avenue North 2,141 2,229 8,191 10,420
7600 Golden Triangle Drive 1,269 615 2,614 3,229
7830-7848 12th Avenue South 206 381 1,547 1,928
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
717 Broadway Avenue 114 1967 (q)
725 Broadway Avenue 93 1967 (q)
270 Duffy Avenue 188 1956 (q)
280 Duffy Avenue 68 1956 (q)
575 Underhill Boulevard 384 1967 (q)
5 Sidney Court 22 1962 (q)
7 Sidney Court 25 1964 (q)
450 Commack Road 44 1964 (q)
99 Layfayette Drive 227 1964 (q)
65 East Bethpage Road 29 1960 (q)
171 Milbar Boulevard 66 1961 (q)
95 Horseblock Road 192 1971 (q)
151-171 East 2nd Street 71 1968 (q)
171-175 East 2nd Street 71 1969 (q)
35 Bloomingdale Road 30 1962 (q)
15-39 Tec Street 26 1965 (q)
100 Tec Street 34 1965 (q)
51-89 Tec Street 35 1965 (q)
502 Old Country Road 14 1965 (q)
80-98 Tec Street 18 1965 (q)
201-233 Park Avenue 50 1962 (q)
6851 Jericho Turnpike 240 1969 (q)
One Fairchild Court 47 1959 (q)
79 Express Street 60 1972 (q)
92 Central Avenue 120 1961 (q)
160 Engineer Drive 21 1966 (q)
260 Engineers Drive 38 1966 (q)
87-119 Engineers Dr (l) 27 1966 (q)
950-970 South Broadway 40 1966 (q)
290 Duffy Avenue 59 1974 (q)
185 Price Parkway 88 1969 (q)
62 Alpha Plaza 6 1968 (q)
90 Alpha Plaza 5 1969 (q)
325 Duffy Avenue 6 1970 (q)
939 Motor Parkway 1 1977 (q)
2070 5th Avenue 5 1975 (q)
200 13th Avenue 4 1979 (q)
100 13th Avenue 4 1979 (q)
1 Comac Loop 4 1980 (q)
80 13th Avenue 5 1983 (q)
90 13th Avenue 5 1982 (q)
33 Comac Loop 5 1983 (q)
101-125 Comac Street 11 1985 (q)
MILWAUKEE
N25 W23050 Paul Road 171 1989 (q)
N25 W23255 Paul Road 286 1987 (q)
N27 W23293 Roundy Drive 247 1989 (q)
6523 N. Sydney Place 57 1978 (q)
8800 W Bradley 88 1982 (q)
1435 North 113th St 56 1993 (q)
11217-43 W. Becher St 13 1979 (q)
2152 S 114th Street 28 1980 (q)
4560 N. 124th Street 11 1976 (q)
12221 W. Feerick Street 16 1971 (q)
MINNEAPOLIS
2700 Freeway Boulevard 291 1981 (q)
6507-6545 Cecilia Circle 653 1980 (q)
6403-6545 Cecilia Drive 704 1980 (q)
1275 Corporate Center Drive 128 1990 (q)
1279 Corporate Center Drive 150 1990 (q)
2815 Eagandale Boulevard 147 1990 (q)
6201 West 111th Street 1,808 1987 (q)
6925-6943 Washington Avenue 489 1972 (q)
6955-6973 Washington Avenue 431 1972 (q)
7251-7267 Washington Avenue 399 1972 (q)
7301-7325 Washington Avenue 448 1972 (q)
7101 Winnetka Avenue North 3,088 1990 (q)
7600 Golden Triangle Drive 960 1989 (q)
7830-7848 12th Avenue South 661 1978 (q)
</TABLE>
S-8
<PAGE> 83
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) -----------------------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
7850-7890 12th Avenue South Bloomington, MN 347 1,242
7900 Main Street Northeast Fridley, MN 480 1,604
7901 Beech Street Northeast Fridley, MN 405 1,554
9901 West 74th Street Eden Prairie, MN 621 3,289
10175-10205 Crosstown Circle Eden Prairie, MN 132 686
11201 Hampshire Avenue South Bloomington, MN 495 1,035
12220-12222 Nicollet Avenue Burnsville, MN 105 425
12250-12268 Nicollet Avenue Burnsville, MN 260 1,054
12224-12226 Nicollet Avenue Burnsville, MN 190 770
305 2nd Street Northwest New Brighton, MN 460 2,744
953 Westgate Drive St. Paul, MN 193 1,178
980 Lone Oak Road Eagan, MN 683 4,103
990 Lone Oak Road Eagan, MN 883 5,575
1030 Lone Oak Road Eagan, MN 456 2,703
1060 Lone Oak Road Eagan, MN 624 3,700
5400 Nathan Lane Plymouth, MN 749 4,461
6464 Sycamore Court Maple Grove, MN 457 2,730
6701 Parkway Circle Brooklyn Center, MN 350 2,131
6601 Shingle Creek Parkway Brooklyn Center, MN 411 2,813
10120 W 76th Street Eden Prairie, MN 315 1,804
7615 Golden Triangle Eden Prairie, MN 268 1,532
7625 Golden Triangle Eden Prairie, MN 415 2,375
2605 Fernbrook Lane North Plymouth, MN 443 2,533
12155 Nicollet Ave. Burnsville, MN 286 -
6655 Wedgewood Road Maple Grove, MN (d) 1,466 8,342
900 Apollo Road Eagan, MN (d) 1,029 5,855
7316 Aspen Lane Brooklyn Park, MN (d) 368 2,156
6707 Shingle Creek Parkway Brooklyn Center, MN (d) 376 2,101
9401 73rd Avenue North Brooklyn Park, MN 504 2,856
1905 W Country Road C Roseville, MN 402 2,278
2720 Arthur Street Roseville, MN 824 4,671
10205 51st Avenue North Plymouth, MN 180 1,020
4100 Peavey Road Chaska, MN 399 2,261
11300 Hamshire Ave South Bloomington, MN 527 2,985
375 Rivertown Drive Woodbury, MN 1,083 6,135
5205 Highway 169 Plymouth, MN 446 2,525
6451-6595 Citywest Parkway Eden Prairie, MN 525 2,975
7100-7198 Shady Oak Rd (m) Eden Prairie, MN 1,118 6,333
1565 First Avenue NW New Brighton, MN 485 2,750
7125 Northland Terrace Brooklyn Park, MN 660 3,740
7102 Winnetka Brooklyn Park, MN 1,334 -
6900 Shady Oak Road Eden Prairie, MN 310 1,756
7550-7588 Washington Square Eden Prairie, MN 153 867
7500-7546 Washington Square Eden Prairie, MN 229 1,300
5240-5300 Valley Industrial Blvd S Shakopee, MN 362 2,049
6477-6525 City West Parkway Eden Prairie, MN 810 4,590
NASHVILLE
1621 Heil Quaker Boulevard Nashville, TN (e) 413 2,348
417 Harding Industrial Drive Nashville, TN (c) 1,006 6,586
520 Harding Industrial Drive (l) Nashville, TN (c) 645 3,382
3099 Barry Drive Portland, TN 418 2,368
3150 Barry Drive Portland, TN 941 5,333
1650 Elm Hill Pike Nashville, TN 329 1,867
1821 Air Lane Drive Nashville, TN 151 858
1102 Appleton Drive Nashville, TN 154 873
1920 Air Lane Drive Nashville, TN 250 1,415
1931 Air Lane Drive Nashville, TN 491 2,785
470 Metroplex Drive (l) Nashville, TN 619 3,507
1150 Antiock Pike Nashville, TN 667 3,748
5599 Highway 31 West Portland, TN 564 3,196
NEW JERSEY
116 Lehigh Drive Fairfield, NJ 851 4,823
60 Ethel Road West Piscataway, NJ 252 1,426
70 Ethel Road West Piscataway, NJ 431 2,443
105 Neptune Boulevard Neptune, NJ 245 1,386
140 Hanover Avenue Hanover, NJ 457 2,588
601-629 Montrose Avenue South Plainfield, NJ 487 2,762
3 Marlen Hamilton, NJ 71 404
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------ ---------
<C> <C> <C> <C> <C>
7850-7890 12th Avenue South 220 358 1,451 1,809
7900 Main Street Northeast 499 497 2,086 2,583
7901 Beech Street Northeast 442 428 1,973 2,401
9901 West 74th Street 1,961 639 5,232 5,871
10175-10205 Crosstown Circle 102 174 746 920
11201 Hampshire Avenue South 848 501 1,877 2,378
12220-12222 Nicollet Avenue 47 114 463 577
12250-12268 Nicollet Avenue 96 284 1,126 1,410
12224-12226 Nicollet Avenue 102 207 855 1,062
305 2nd Street Northwest 41 460 2,785 3,245
953 Westgate Drive 2 193 1,180 1,373
980 Lone Oak Road 45 683 4,148 4,831
990 Lone Oak Road 119 883 5,694 6,577
1030 Lone Oak Road 45 456 2,748 3,204
1060 Lone Oak Road 137 624 3,837 4,461
5400 Nathan Lane 44 749 4,505 5,254
6464 Sycamore Court 103 457 2,833 3,290
6701 Parkway Circle 344 377 2,448 2,825
6601 Shingle Creek Parkway 495 502 3,217 3,719
10120 W 76th Street 98 318 1,899 2,217
7615 Golden Triangle 342 268 1,874 2,142
7625 Golden Triangle 143 415 2,518 2,933
2605 Fernbrook Lane North 315 445 2,846 3,291
12155 Nicollet Ave. 1,678 288 1,676 1,964
6655 Wedgewood Road 142 1,466 8,484 9,950
900 Apollo Road 194 1,030 6,048 7,078
7316 Aspen Lane 180 377 2,327 2,704
6707 Shingle Creek Parkway 364 379 2,462 2,841
9401 73rd Avenue North 73 512 2,921 3,433
1905 W Country Road C 65 409 2,336 2,745
2720 Arthur Street 77 832 4,740 5,572
10205 51st Avenue North 69 187 1,082 1,269
4100 Peavey Road 124 415 2,369 2,784
11300 Hamshire Ave South 223 541 3,194 3,735
375 Rivertown Drive 676 1,503 6,391 7,894
5205 Highway 169 2,157 739 4,389 5,128
6451-6595 Citywest Parkway 237 538 3,199 3,737
7100-7198 Shady Oak Rd (m) 485 1,149 6,787 7,936
1565 First Avenue NW 173 496 2,912 3,408
7125 Northland Terrace 96 673 3,823 4,496
7102 Winnetka - 1,334 -- 1,334
6900 Shady Oak Road 219 340 1,945 2,285
7550-7588 Washington Square 29 157 891 1,049
7500-7546 Washington Square 40 235 1,333 1,569
5240-5300 Valley Industrial Blvd S 93 371 2,132 2,504
6477-6525 City West Parkway 70 820 4,650 5,470
NASHVILLE
1621 Heil Quaker Boulevard 413 430 2,744 3,174
417 Harding Industrial Drive 880 1,116 7,356 8,472
520 Harding Industrial Drive (l) 1,092 699 4,420 5,119
3099 Barry Drive 52 424 2,414 2,838
3150 Barry Drive 329 987 5,616 6,603
1650 Elm Hill Pike 39 333 1,902 2,235
1821 Air Lane Drive 12 153 868 1,021
1102 Appleton Drive 9 153 883 1,036
1920 Air Lane Drive 18 252 1,431 1,683
1931 Air Lane Drive 49 497 2,828 3,325
470 Metroplex Drive (l) 44 625 3,545 4,170
1150 Antiock Pike 45 669 3,791 4,460
5599 Highway 31 West 64 571 3,253 3,824
NEW JERSEY
116 Lehigh Drive 98 862 4,910 5,772
60 Ethel Road West 126 264 1,540 1,804
70 Ethel Road West 143 451 2,566 3,017
105 Neptune Boulevard 70 255 1,446 1,701
140 Hanover Avenue 325 475 2,895 3,370
601-629 Montrose Avenue 186 514 2,921 3,435
3 Marlen 32 74 433 507
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
7850-7890 12th Avenue South 653 1978 (q)
7900 Main Street Northeast 996 1973 (q)
7901 Beech Street Northeast 788 1975 (q)
9901 West 74th Street 913 1983/88 (q)
10175-10205 Crosstown Circle 282 1980 (q)
11201 Hampshire Avenue South 732 1986 (q)
12220-12222 Nicollet Avenue 159 1989/90 (q)
12250-12268 Nicollet Avenue 412 1989/90 (q)
12224-12226 Nicollet Avenue 300 1989/90 (q)
305 2nd Street Northwest 261 1991 (q)
953 Westgate Drive 105 1991 (q)
980 Lone Oak Road 406 1992 (q)
990 Lone Oak Road 730 1989 (q)
1030 Lone Oak Road 263 1988 (q)
1060 Lone Oak Road 400 1988 (q)
5400 Nathan Lane 402 1990 (q)
6464 Sycamore Court 259 1990 (q)
6701 Parkway Circle 239 1987 (q)
6601 Shingle Creek Parkway 339 1985 (q)
10120 W 76th Street 136 1987 (q)
7615 Golden Triangle 266 1987 (q)
7625 Golden Triangle 223 1987 (q)
2605 Fernbrook Lane North 266 1987 (q)
12155 Nicollet Ave. 89 1995 (q)
6655 Wedgewood Road 713 1989 (q)
900 Apollo Road 427 1970 (q)
7316 Aspen Lane 166 1978 (q)
6707 Shingle Creek Parkway 275 1986 (q)
9401 73rd Avenue North 128 1995 (q)
1905 W Country Road C 102 1993 (q)
2720 Arthur Street 207 1995 (q)
10205 51st Avenue North 49 1990 (q)
4100 Peavey Road 93 1988 (q)
11300 Hamshire Ave South 214 1983 (q)
375 Rivertown Drive 207 1996 (q)
5205 Highway 169 122 1960 (q)
6451-6595 Citywest Parkway 129 1984 (q)
7100-7198 Shady Oak Rd (m) 204 1982 (q)
1565 First Avenue NW 60 1978 (q)
7125 Northland Terrace 79 1996 (q)
7102 Winnetka 1 (s)
6900 Shady Oak Road 36 1980 (q)
7550-7588 Washington Square 24 1975 (q)
7500-7546 Washington Square 36 1975 (q)
5240-5300 Valley Industrial Blvd S 58 1973 (q)
6477-6525 City West Parkway 29 1984 (q)
NASHVILLE
1621 Heil Quaker Boulevard 213 1975 (q)
417 Harding Industrial Drive 911 1972 (q)
520 Harding Industrial Drive (l) 413 1975 (q)
3099 Barry Drive 75 1995 (q)
3150 Barry Drive 175 1993 (q)
1650 Elm Hill Pike 12 1984 (q)
1821 Air Lane Drive 5 1984 (q)
1102 Appleton Drive 6 1984 (q)
1920 Air Lane Drive 9 1985 (q)
1931 Air Lane Drive 18 1984 (q)
470 Metroplex Drive (l) 22 1986 (q)
1150 Antiock Pike 24 1987 (q)
5599 Highway 31 West 101 1995 (q)
NEW JERSEY
116 Lehigh Drive 122 1986 (q)
60 Ethel Road West 19 1982 (q)
70 Ethel Road West 32 1979 (q)
105 Neptune Boulevard 18 1989 (q)
140 Hanover Avenue 37 1964/1988 (q)
601-629 Montrose Avenue 36 1974 (q)
3 Marlen 1 1981 (q)
</TABLE>
S-9
<PAGE> 84
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) -----------------------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
5 Marlen Hamilton, NJ 116 655
7 Marlen Hamilton, NJ 128 728
8 Marlen Hamilton, NJ 230 1,302
15 Marlen Hamilton, NJ 53 302
17 Marlen Hamilton, NJ 104 588
1 South Gold Drive Hamilton, NJ 106 599
2 South Gold Drive Hamilton, NJ 200 1,131
5 South Gold Drive Hamilton, NJ 106 602
6 South Gold Drive Hamilton, NJ 59 332
7 South Gold Drive Hamilton, NJ 32 182
8 South Gold Drive Hamilton, NJ 103 584
9 South Gold Drive Hamilton, NJ 60 342
11 South Gold Drive Hamilton, NJ 183 1,039
12 South Gold Drive Hamilton, NJ 84 475
9 Princess Road Lawrenceville, NJ 221 1,254
11 Princess Road Lawrenceville, NJ 491 2,780
15 Princess Road Lawrenceville, NJ 234 1,328
17 Princess Road Lawrenceville, NJ 342 1,936
220 Hanover Avenue Hanover, NJ 1,361 7,715
244 Shefield Street Mountainside, NJ 201 1,141
30 Troy Road Hanover, NJ 128 727
15 Leslie Court Hanover, NJ 126 716
20 Leslie Court Hanover, NJ 84 474
25 Leslie Court Hanover, NJ 512 2,899
130 Algonquin Parkway Hanover, NJ 157 888
150 Algonquin Parkway Hanover, NJ 85 479
55 Locust Avenue Roseland, NJ 535 3,034
31 West Forest Street (l) Englewood, NJ 941 5,333
25 World's Fair Drive Franklin, NJ 285 1,616
14 World's Fair Drive Franklin, NJ 483 2,735
16 World's Fair Drive Franklin, NJ 174 988
18 World's Fair Drive Franklin, NJ 123 699
23 World's Fair Drive Franklin, NJ 134 758
12 World's Fair Drive Franklin, NJ 572 3,240
1 World's Fair Drive Franklin, NJ 632 3,581
2 World's Fair Drive Franklin, NJ 625 3,539
49 Napoleon Court Franklin, NJ 230 1,306
50 Napoleon Court Franklin, NJ 149 842
22 World's Fair Drive Franklin, NJ 364 2,064
26 World's Fair Drive Franklin, NJ 361 2,048
24 World's Fair Drive Franklin, NJ 347 1,968
12 Wright Way Oakland, NJ 410 2,321
NEW ORLEANS
520-524 Elmwood Park Blvd (l) Jefferson, LA 926 5,248
125 Mallard St St. Rose, LA (j) 103 586
107 Mallard St. Rose, LA (j) 164 928
125 James Drive West St. Rose, LA (j) 246 1,392
161 James Drive West St. Rose, LA 298 1,687
150 James Drive East St. Rose, LA 399 2,258
115 James Drive West St. Rose, LA (j) 163 922
100 James Drive St. Rose, LA (j) 430 2,435
143 Mallard St St. Rose, LA (j) 143 812
160 James Drive East St. Rose, LA (j) 102 580
190 James Drive East St. Rose, LA (j) 205 1,160
120 Mallard St St. Rose, LA (j) 348 1,971
110 James Drive West St. Rose, LA (j) 143 812
150 Canvasback Dr St. Rose, LA 165 937
PHOENIX
7340 South Kyrene Rd Tempe, AZ 1,495 8,469
7350 S Kyrene Road Tempe, AZ 818 4,634
7360 South Kyrene Rd Tempe, AZ 508 2,876
7343 South Hardy Drive Tempe, AZ 1,119 6,341
7333 South Hardy Drive Tempe, AZ 1,549 8,779
SALT LAKE
2255 South 300 West (o) Salt Lake City, UT 618 3,504
512 Lawndale Drive (p) Salt Lake City, UT 2,779 15,749
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSMOUNTS CARRIED
CAPITALIZED AT CLOSF PERIOD 12/31/97
SUBSEQUENT TO -----------------------------------------------------------
ACQUISITION ILDING AND
BUILDING ADDRESS OR COMPLETION LAND PROVEMENTS TOTAL
- ---------------- ------------- ----------- ---------- -------------
<C> <C> <C> <C>
5 Marlen 40 121 690 811
7 Marlen 52 135 773 908
8 Marlen 41 234 1,339 1,573
15 Marlen 31 57 329 386
17 Marlen 44 110 626 736
1 South Gold Drive 43 112 636 748
2 South Gold Drive 67 209 1,189 1,398
5 South Gold Drive 54 113 649 762
6 South Gold Drive 32 63 360 423
7 South Gold Drive 26 36 204 240
8 South Gold Drive 43 109 621 730
9 South Gold Drive 34 65 371 436
11 South Gold Drive 65 192 1,095 1,287
12 South Gold Drive 65 89 535 624
9 Princess Road 72 231 1,316 1,547
11 Princess Road 152 510 2,913 3,423
15 Princess Road 270 244 1,588 1,832
17 Princess Road 105 353 2,030 2,383
220 Hanover Avenue 410 1,419 8,067 9,486
244 Shefield Street 63 210 1,195 1,405
30 Troy Road 38 133 760 893
15 Leslie Court 42 132 752 884
20 Leslie Court 32 88 502 590
25 Leslie Court 112 526 2,997 3,523
130 Algonquin Parkway 46 163 928 1,091
150 Algonquin Parkway 31 89 506 595
55 Locust Avenue 171 559 3,181 3,740
31 West Forest Street (l) 239 974 5,539 6,513
25 World's Fair Drive 82 297 1,686 1,983
14 World's Fair Drive 206 503 2,921 3,424
16 World's Fair Drive 75 183 1,054 1,237
18 World's Fair Drive 44 129 737 866
23 World's Fair Drive 47 140 799 939
12 World's Fair Drive 150 593 3,369 3,962
1 World's Fair Drive 156 654 3,715 4,369
2 World's Fair Drive 192 650 3,706 4,356
49 Napoleon Court 49 238 1,347 1,585
50 Napoleon Court 40 154 877 1,031
22 World's Fair Drive 77 375 2,130 2,505
26 World's Fair Drive 113 377 2,145 2,522
24 World's Fair Drive 108 361 2,062 2,423
12 Wright Way 107 424 2,414 2,838
NEW ORLEANS
520-524 Elmwood Park Blvd (l) 149 949 5,375 6,323
125 Mallard St 33 109 614 722
107 Mallard 49 171 971 1,141
125 James Drive West 76 257 1,458 1,714
161 James Drive West 40 304 1,722 2,025
150 James Drive East 70 409 2,319 2,727
115 James Drive West 53 171 968 1,138
100 James Drive 137 451 2,552 3,002
143 Mallard St 49 151 854 1,004
160 James Drive East 37 108 612 719
190 James Drive East 64 215 1,215 1,429
120 Mallard St 113 365 2,068 2,432
110 James Drive West 45 150 851 1,000
150 Canvasback Dr 30 170 963 1,132
PHOENIX
7340 South Kyrene Rd 29 1,499 8,494 9,993
7350 S Kyrene Road 24 821 4,655 5,476
7360 South Kyrene Rd 21 511 2,894 3,405
7343 South Hardy Drive 48 1,126 6,382 7,508
7333 South Hardy Drive 38 1,555 8,811 10,366
SALT LAKE
2255 South 300 West (o) 27 622 3,527 4,149
512 Lawndale Drive (p) 113 2,797 15,844 18,641
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
5 Marlen 8 1981 (q)
7 Marlen 9 1982 (q)
8 Marlen 3 1982 (q)
15 Marlen 4 1982 (q)
17 Marlen 8 1981 (q)
1 South Gold Drive 8 1973 (q)
2 South Gold Drive 15 1974 (q)
5 South Gold Drive 8 1974 (q)
6 South Gold Drive 4 1975 (q)
7 South Gold Drive 2 1976 (q)
8 South Gold Drive 8 1977 (q)
9 South Gold Drive 4 1980 (q)
11 South Gold Drive 13 1979 (q)
12 South Gold Drive 6 1980 (q)
9 Princess Road 13 1985 (q)
11 Princess Road 31 1985 (q)
15 Princess Road 23 1986 (q)
17 Princess Road 23 1986 (q)
220 Hanover Avenue 100 1987 (q)
244 Shefield Street 15 1965/1986 (q)
30 Troy Road 8 1972 (q)
15 Leslie Court 9 1971 (q)
20 Leslie Court 6 1974 (q)
25 Leslie Court 31 1975 (q)
130 Algonquin Parkway 9 1973 (q)
150 Algonquin Parkway 6 1973 (q)
55 Locust Avenue 39 1980 (q)
31 West Forest Street (l) 57 1978 (q)
25 World's Fair Drive 21 1986 (q)
14 World's Fair Drive 39 1980 (q)
16 World's Fair Drive 13 1981 (q)
18 World's Fair Drive 9 1982 (q)
23 World's Fair Drive 10 1982 (q)
12 World's Fair Drive 42 1981 (q)
1 World's Fair Drive 46 1983 (q)
2 World's Fair Drive 47 1982 (q)
49 Napoleon Court 3 1982 (q)
50 Napoleon Court 2 1982 (q)
22 World's Fair Drive 4 1983 (q)
26 World's Fair Drive 27 1984 (q)
24 World's Fair Drive 26 1984 (q)
12 Wright Way 30 1981 (q)
NEW ORLEANS
520-524 Elmwood Park Blvd (l) 11 1986 (q)
125 Mallard St 1 1984 (q)
107 Mallard 2 1985 (q)
125 James Drive West 3 1990 (q)
161 James Drive West 4 1986 (q)
150 James Drive East 5 1986 (q)
115 James Drive West 2 1986 (q)
100 James Drive 5 1980 (q)
143 Mallard St 2 1982 (q)
160 James Drive East 1 1981 (q)
190 James Drive East 3 1987 (q)
120 Mallard St 4 1981 (q)
110 James Drive West 2 1983 (q)
150 Canvasback Dr 2 1986 (q)
PHOENIX
7340 South Kyrene Rd 18 1996 (q)
7350 S Kyrene Road 10 1996 (q)
7360 South Kyrene Rd 6 1996 (q)
7343 South Hardy Drive 13 1997 (q)
7333 South Hardy Drive 18 1997 (q)
SALT LAKE
2255 South 300 West (o) 7 1980 (q)
512 Lawndale Drive (p) 33 1981 (q)
</TABLE>
S-10
<PAGE> 85
<TABLE>
<CAPTION>
(b)
INITIAL COST
LOCATION (a) ------------
BUILDING ADDRESS (CITY/STATE) ENCUMBRANCES LAND BUILDINGS
- ---------------- ------------ ------------ ---- ---------
<S> <C> <C> <C> <C>
ST. LOUIS
8921-8957 Frost Avenue Hazelwood, MO (e) 431 2,479
9043-9083 Frost Avenue Hazelwood, MO (e) 319 1,838
2121 Chapin Industrial Drive Vinita Park, MO 606 4,384
1200 Andes Boulevard Olivette, MO 246 1,412
1248 Andes Boulevard Olivette, MO 156 907
1208-1226 Ambassador Boulevard Olivette, MO 235 1,351
1250 Ambassador Boulevard Olivette, MO 119 694
1503-1525 Fairview Industrial Olivette, MO 112 658
2462-2470 Schuetz Road St. Louis, MO 174 1,004
10431-10449 Midwest Industrial Blvd Olivette, MO 237 1,360
10751 Midwest Industrial Boulevard Olivette, MO 193 1,119
11652-11666 Fairgrove Industrial Blvd St. Louis, MO 103 599
11674-11688 Fairgrove Industrial Blvd St. Louis, MO 118 689
2337 Centerline Drive Maryland Heights, MO 216 1,242
6951 N Hanley (l) Hazelwood, MO 405 2,295
4560 Anglum Road Hazelwood, MO 150 849
2760 South 1st Street St. Louis, MO 800 -
TAMPA
6614 Adamo Drive Tampa, FL 177 1,005
202 Kelsey Tampa, FL 602 3,409
6202 Benjamin Road Tampa, FL 203 1,151
6204 Benjamin Road Tampa, FL 432 2,445
6206 Benjamin Road Tampa, FL 397 2,251
6302 Benjamin Road Tampa, FL 214 1,212
6304 Benjamin Road Tampa, FL 201 1,138
6306 Benjamin Road Tampa, FL 257 1,457
6308 Benjamin Road Tampa, FL 345 1,958
5313 Johns Road Tampa, FL 204 1,159
5602 Thompson Center Court Tampa, FL 115 652
5411 Johns Road Tampa, FL 230 1,304
5525 Johns Road Tampa, FL 192 1,086
5607 Johns Road Tampa, FL 102 579
5709 Johns Road Tampa, FL 192 1,086
5711 Johns Road Tampa, FL 243 1,376
4410 E Adamo Drive Tampa, FL 523 2,962
4420 E Adamo Drive Tampa, FL 127 718
4430 E Adamo Drive Tampa, FL 333 1,885
4440 E Adamo Drive Tampa, FL 348 1,975
4450 E Adamo Drive Tampa, FL 253 1,436
5453 W Waters Avenue Tampa, FL 71 402
5455 W Waters Avenue Tampa, FL 307 1,742
5553 W Waters Avenue Tampa, FL 307 1,742
5501 W Waters Avenue Tampa, FL 154 871
5503 W Waters Avenue Tampa, FL 71 402
5555 W Waters Avenue Tampa, FL 213 1,206
5557 W Waters Avenue Tampa, FL 59 335
5903 Johns Road Tampa, FL 88 497
4107 N Himes Avenue Tampa, FL 568 3,220
OTHER
2800 Airport Road (n) Denton, TX 369 1,935
3501 Maple Street Abilene, TX 67 1,057
4200 West Harry Street (m) Wichita, KS (c) 193 2,224
Industrial Park No. 2 West Lebanon, NH 723 5,208
931 Discovery Road Green Bay, WI 121 685
11200 Industiplex Blvd Baton Rouge, LA 463 2,624
11441 Indsutriplex Blvd Baton Rouge, LA 331 1,874
11301 Industriplex Blvd Baton Rouge, LA 265 1,499
6565 Exchequer Drive Baton Rouge, LA 461 2,614
2675 Valley View Drive Shreveport, LA 144 -
300 10th Street NW Clarion, IA 35 -
9580 Interport Dr Shreveport, LA 113 639
Developments/Redevelopments/Land 15,826 2,763
----------- ---------
$ 285,681 $1,477,137
=========== ==========
</TABLE>
<TABLE>
<CAPTION>
COSTS GROSS AMOUNTS CARRIED
CAPITALIZED AT CLOSE OF PERIOD 12/31/97
SUBSEQUENT TO --------------------------------------------------------------
ACQUISITION BUILDING AND
BUILDING ADDRESS OR COMPLETION LAND IMPROVEMENTS TOTAL
- ---------------- ------------- ----------- ------------- -------------
<C> <C> <C> <C> <C>
ST. LOUIS
8921-8957 Frost Avenue 10 431 2,489 2,920
9043-9083 Frost Avenue 27 319 1,865 2,184
2121 Chapin Industrial Drive 1,205 614 5,581 6,195
1200 Andes Boulevard 83 319 1,422 1,741
1248 Andes Boulevard (199) 157 958 1,115
1208-1226 Ambassador Boulevard 1 235 1,352 1,587
1250 Ambassador Boulevard 2 119 696 815
1503-1525 Fairview Industrial 48 112 706 818
2462-2470 Schuetz Road 1 174 1,005 1,179
10431-10449 Midwest Industrial Blvd 198 237 1,558 1,795
10751 Midwest Industrial Boulevard 13 193 1,132 1,325
11652-11666 Fairgrove Industrial Blvd 89 103 688 791
11674-11688 Fairgrove Industrial Blvd 27 118 716 834
2337 Centerline Drive (40) 216 1,353 1,569
6951 N Hanley (l) 562 419 2,843 3,262
4560 Anglum Road 86 161 924 1,085
2760 South 1st Street 4,087 821 4,066 4,887
TAMPA
6614 Adamo Drive 20 180 1,022 1,202
202 Kelsey 94 616 3,489 4,105
6202 Benjamin Road 37 209 1,182 1,391
6204 Benjamin Road 103 445 2,535 2,980
6206 Benjamin Road 80 409 2,319 2,728
6302 Benjamin Road 39 220 1,245 1,465
6304 Benjamin Road 36 206 1,169 1,375
6306 Benjamin Road 54 265 1,503 1,768
6308 Benjamin Road 70 356 2,017 2,373
5313 Johns Road 38 210 1,191 1,401
5602 Thompson Center Court 24 119 672 791
5411 Johns Road 41 236 1,339 1,575
5525 Johns Road 36 197 1,117 1,314
5607 Johns Road 23 106 598 704
5709 Johns Road 36 197 1,117 1,314
5711 Johns Road 64 252 1,431 1,683
4410 E Adamo Drive 129 542 3,072 3,614
4420 E Adamo Drive 34 132 747 879
4430 E Adamo Drive 87 346 1,959 2,305
4440 E Adamo Drive 91 362 2,052 2,414
4450 E Adamo Drive 73 264 1,498 1,762
5453 W Waters Avenue 20 74 419 493
5455 W Waters Avenue 78 319 1,808 2,127
5553 W Waters Avenue 76 319 1,806 2,125
5501 W Waters Avenue 48 161 912 1,073
5503 W Waters Avenue 20 74 419 493
5555 W Waters Avenue 47 220 1,246 1,466
5557 W Waters Avenue 18 62 350 412
5903 Johns Road 29 92 522 614
4107 N Himes Avenue 140 589 3,339 3,928
OTHER
2800 Airport Road (n) 1,572 490 3,386 3,876
3501 Maple Street 941 260 1,805 2,065
4200 West Harry Street (m) 1,751 528 3,640 4,168
Industrial Park No. 2 175 776 5,330 6,106
931 Discovery Road 117 138 785 923
11200 Industiplex Blvd 82 476 2,694 3,169
11441 Indsutriplex Blvd 59 340 1,925 2,264
11301 Industriplex Blvd 49 272 1,542 1,813
6565 Exchequer Drive 78 473 2,681 3,153
2675 Valley View Drive 4,481 276 4,349 4,625
300 10th Street NW 2,058 162 1,931 2,093
9580 Interport Dr 15 115 653 767
Developments / Vacant Land 4,301 16,900 3,244 20,144
------------- ----------- ------------- -------------
$ 199,932 $ 299,020 $ 1,663,731 $ 1,962,750
============= =========== ============= =============
</TABLE>
<TABLE>
<CAPTION>
ACCUMULATED
DEPRECIATION YEAR BUILT/ DEPRECIABLE
BUILDING ADDRESS 12/31/97 RENOVATED LIVES (YEARS)
- ---------------- ----------- --------- -------------
<S> <C> <C> <C>
ST. LOUIS
8921-8957 Frost Avenue 218 1971 (q)
9043-9083 Frost Avenue 163 1970 (q)
2121 Chapin Industrial Drive 3,545 1969/87 (q)
1200 Andes Boulevard 124 1967 (q)
1248 Andes Boulevard 118 1967 (q)
1208-1226 Ambassador Boulevard 118 1966 (q)
1250 Ambassador Boulevard 61 1967 (q)
1503-1525 Fairview Industrial 78 1967 (q)
2462-2470 Schuetz Road 88 1965 (q)
10431-10449 Midwest Industrial Blvd 139 1967 (q)
10751 Midwest Industrial Boulevard 100 1965 (q)
11652-11666 Fairgrove Industrial Blvd 74 1966 (q)
11674-11688 Fairgrove Industrial Blvd 72 1967 (q)
2337 Centerline Drive 124 1967 (q)
6951 N Hanley (l) 72 1965 (q)
4560 Anglum Road 8 1970 (q)
2760 South 1st Street 1 1997 (q)
TAMPA
6614 Adamo Drive 2 1967 (q)
202 Kelsey 7 1989 (q)
6202 Benjamin Road 2 1981 (q)
6204 Benjamin Road 6 1982 (q)
6206 Benjamin Road 5 1983 (q)
6302 Benjamin Road 3 1983 (q)
6304 Benjamin Road 2 1984 (q)
6306 Benjamin Road 3 1984 (q)
6308 Benjamin Road 4 1984 (q)
5313 Johns Road 2 1991 (q)
5602 Thompson Center Court 1 1972 (q)
5411 Johns Road 3 1997 (q)
5525 Johns Road 2 1993 (q)
5607 Johns Road 1 1991 (q)
5709 Johns Road 2 1990 (q)
5711 Johns Road 3 1990 (q)
4410 E Adamo Drive 6 1990 (q)
4420 E Adamo Drive 2 1990 (q)
4430 E Adamo Drive 4 1987 (q)
4440 E Adamo Drive 4 1988 (q)
4450 E Adamo Drive 3 1969 (q)
5453 W Waters Avenue 1 1987 (q)
5455 W Waters Avenue 4 1987 (q)
5553 W Waters Avenue 4 1987 (q)
5501 W Waters Avenue 2 1990 (q)
5503 W Waters Avenue 1 1990 (q)
5555 W Waters Avenue 3 1990 (q)
5557 W Waters Avenue 1 1990 (q)
5903 Johns Road 1 1987 (q)
4107 N Himes Avenue 7 1990 (q)
OTHER
2800 Airport Road (n) 1,081 1965 (q)
3501 Maple Street 569 1980 (q)
4200 West Harry Street (m) 1,152 1972 (q)
Industrial Park No. 2 1,677 1968 (q)
931 Discovery Road 11 1997 (q)
11200 Industiplex Blvd 6 1986 (q)
11441 Indsutriplex Blvd 4 1987 (q)
11301 Industriplex Blvd 3 1985 (q)
6565 Exchequer Drive 6 1986 (q)
2675 Valley View Drive 1 1997 (q)
300 10th Street NW 1 1997 (q)
9580 Interport Dr 1 1989 (q)
DEVELOPMENTS / VACANT LAND - (r)
-----------
$ 121,030
===========
</TABLE>
S-11
<PAGE> 86
NOTES:
(a) See description of encumbrances in Note 4 to Notes to Consolidated
Financial statements.
(b) Initial cost for each respective property is total acquisition costs
associated with its purchase.
(c) Collateralizes the 1994 Defeased Mortgage Loan. On January 2, 1998, the
1994 Defeased Mortgage Loan was paid off and retired and the remaining 15
properties were released.
(d) These properties are owned by the Securities Partnership. The Securities
Partnership guarantees the payment on the Series A Preferred Stock
of dividends and amounts upon redemption, liquidation, dissolution or
winding-up.
(e) These properties collateralize the 1995 Mortgage Loan.
(f) These properties collateralize the CIGNA Loan.
(g) These properties collateralize the Assumed Loans.
(h) This property collateralizes the LB Mortgage Loan II.
(i) This property collateralizes the Acquisition Mortgage Loan I.
(j) These properties collateralize the Acquisition Mortgage Loan II.
(k) These properties collateralize the Acquisition Mortgage Loan III.
(l) Comprised of two properties.
(m) Comprised of three properties.
(n) Comprised of five properties.
(o) Comprised of seven properties.
(p) Comprised of 29 properties.
(q) Depreciation is computed based upon the following estimated lives:
Buildings, Improvements 31.5 to 40 years
Tenant Improvements, Leasehold Improvements Life of lease
Furniture, Fixtures and equipment 5 to 10 years
(r) These properties represent vacant land, developments and redevelopments
that haven't been placed in service.
(s) Parking Lot
(t) Excludes $30,158 of Construction in Progress
At December 31, 1997, the aggregate cost of land and buildings and equipment for
federal income tax purpose was approximately $1,749 million.
S-12
<PAGE> 87
FIRST INDUSTRIAL REALTY TRUST, INC.
SCHEDULE III:
REAL ESTATE AND ACCUMULATED DEPRECIATION (CONTINUED)
AS OF DECEMBER 31, 1997
(DOLLARS IN THOUSANDS)
The changes in total real estate assets for the three years ended December
31, 1997 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
----------- ----------- -----------
<S> <C> <C> <C>
Balance, Beginning of Year ................................. $ 1,050,779 $ 757,516 $ 669,608
Transfer of Assets Between Contributing Businesses ......... -- -- --
Acquisition, Construction Costs and Improvements ........... 975,168 305,153 87,908
Disposition of Assets ...................................... (31,601) (11,890) --
----------- ----------- -----------
Balance, End of Year ....................................... $ 1,994,346 $ 1,050,779 $ 757,516
=========== =========== ===========
</TABLE>
The changes in accumulated depreciation for the three years ended December
31, 1997 are as follows:
<TABLE>
<CAPTION>
1997 1996 1995
--------- --------- ---------
<S> <C> <C> <C>
Balance, Beginning of Year ................................. $ 91,457 $ 68,749 $ 49,314
Transfer of Assets Between Contributing Businesses ......... -- -- --
Depreciation for Year ...................................... 35,286 24,542 19,435
Disposition of Assets ...................................... (5,713) (1,834) --
--------- --------- ---------
Balance, End of Year ....................................... $ 121,030 $ 91,457 $ 68,749
========= ========= =========
</TABLE>
S-13
<PAGE> 1
EXHIBIT 3.9
7.90% Series E Cumulative Preferred Stock
(Liquidation Preference $2,500.00 Per Share)
ARTICLES SUPPLEMENTARY
FIRST INDUSTRIAL REALTY TRUST, INC.
____________________________
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
7.90% Series E Cumulative Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
____________________________
Dated as of March 13, 1998
<PAGE> 2
FIRST INDUSTRIAL REALTY TRUST, INC.
__________
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
7.90% Series E Cumulative Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
__________
First Industrial Realty Trust, Inc., a Maryland corporation, having its
principal office in the State of Maryland in the City of Baltimore (the
"Company"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
Pursuant to authority conferred upon the Board of Directors by the Charter
and Bylaws of the Company, the Board of Directors on December 3, 1996 and
December 4, 1997 adopted resolutions appointing certain members of the Board of
Directors to a committee (the "Special Committee") with power to cause the
Company to issue, among other things, certain series of Preferred Stock and to
determine the number of shares which shall constitute such series and the
Dividend Rate (as defined herein) and other terms of such series. The Special
Committee pursuant to a resolution dated March 13, 1998 (i) authorized the
creation and issuance of up to 34,500 shares of Series E Cumulative Preferred
Stock which stock was previously authorized but not issued and (ii) determined
the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the shares of such series and the Dividend Rate (which rate shall
be 7.90%) payable on such series. Such preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption, number of shares and
Dividend Rate, as determined by such duly authorized committee, as applicable,
are as follows:
Section 1. Number of Shares and Designation. This class of Preferred
Stock shall be designated 7.90% Series E Cu-
<PAGE> 3
-2-
mulative Preferred Stock (the "Series E Preferred Shares") and the number of
shares which shall constitute such series shall not be more than 34,500 shares,
par value $.01 per share, which number may be decreased (but not below the
number thereof then outstanding) from time to time by the Board of Directors.
Section 2. Dividend Rights. (1) Dividends shall be payable in cash on
the Series E Preferred Shares when, as and if declared by the Board of
Directors, out of assets legally available therefor: (i) for the period (the
"Initial Dividend Period") from the Deemed Original Issue Date (as defined
below) to but excluding July 1, 1998, and (ii) for each quarterly dividend
period thereafter (the Initial Dividend Period and each quarterly dividend
period being hereinafter individually referred to as a "Dividend Period" and
collectively referred to as "Dividend Periods"), which quarterly Dividend
Periods shall commence on January 1, April 1, July 1, and October 1 in each
year (each, a "Dividend Period Commencement Date"), commencing on July 1, 1998,
and shall end on and include the day next preceding the next Dividend Period
Commencement Date, at a rate per annum equal to 7.90% of the liquidation
preference thereof (the "Dividend Rate"). Dividends on each Series E Preferred
Share shall be cumulative from the Deemed Original Issue Date of such share and
shall be payable, without interest thereon, when, as and if declared by the
Board of Directors, on March 31, June 30, September 30 and December 31 of each
year, commencing on June 30, 1998 or, in the case of Series E Preferred Shares
with a Deemed Original Issue Date after June 30 1998, the first such dividend
payment date following such Deemed Original Issue Date; provided, that if any
such day shall be a Saturday, Sunday, or a day on which banking institutions in
the State of New York are authorized or obligated by law to close, or a day
which is or is declared a national or a New York state holiday (any of the
foregoing a "Non-Business Day"), then the payment date shall be the next
succeeding day which is not a Non-Business Day. Each such dividend shall be
paid to the holders of record of Series E Preferred Shares as they appear on
the stock register of the Company on such record date, not more than 45 days
nor less than 15 days preceding the payment date thereof, as shall be fixed by
the Board of Directors. Dividends on account of arrears for any past Dividend
Periods may be declared and paid at any time, without reference to any regular
dividend payment date, to holders of record on such date, not more than 45 days
nor less than 15 days preceding the payment date thereof, as may be fixed by
the Board of Directors. After an amount equal to full cumulative dividends on
this series, including for the then current Dividend Period, has been paid to
holders of record of Series E Preferred Shares
<PAGE> 4
-3-
entitled to receive dividends as set forth above by the Company, or such
dividends have been declared and funds therefor set aside for payment, the
holders of Series E Preferred Shares will not be entitled to any further
dividends with respect to that Dividend Period.
"Deemed Original Issue Date" means (a) in the case of any share which is
part of the first issuance of Series E Preferred Shares or part of a subsequent
issuance of Series E Preferred Shares prior to July 1, 1998, the date of such
first issuance and (b) in the case of any share which is part of a subsequent
issuance of Series E Preferred Shares on or after July 1, 1998, the later of
(x) July 1, 1998 and (y) the latest Dividend Period Commencement Date which
precedes the date of issuance of such share and which succeeds the last
Dividend Period for which full cumulative dividends have been paid; provided
that, in the case of any share which is part of a subsequent issuance on or
after July 1, 1998, the date of issuance of which falls between (i) the record
date for dividends payable on the first succeeding dividend payment date and
(ii) such dividend payment date, the "Deemed Original Issue Date" means the
date of the Dividend Period Commencement Date that immediately follows the date
of issuance.
(2) Dividends payable on Series E Preferred Shares for any period greater
or less than a full Dividend Period, including the Initial Dividend Period,
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months. Dividends payable on Series E Preferred Shares for each full Dividend
Period shall be computed by dividing the Dividend Rate by four.
(3) When dividends are not paid in full upon the Series E Preferred Shares
and any other series of preferred stock of the Company ranking on a parity
therewith as to dividends, (or, in the case of the Company's Series A Preferred
Shares, payments in lieu thereof are not made under that certain Guarantee and
Payment Agreement dated November 17, 1995 between First Industrial Securities,
L.P., a Delaware limited partnership and First Industrial Securities
Corporation for the benefit of American National Bank and Trust Company of
Chicago for the holders of the Series A Preferred Shares (the "Guarantee")),
all dividends declared upon the Series E Preferred Shares and any other series
of preferred stock of the Company ranking on a parity therewith as to dividends
shall be declared pro rata so that the amount of dividends declared per share
on the Series E Preferred Shares and such other series of preferred stock shall
in all cases bear to each other that same
<PAGE> 5
-4-
ratio that the accumulated dividends per share on the Series E Preferred Shares
and such other series of preferred stock (less, in the case of the Series A
Preferred Shares, payments under the Guarantee in lieu of such dividends) bear
to each other. Except as provided in the preceding sentence, unless an amount
equal to full cumulative dividends on the Series E Preferred Shares has been
paid to holders of record of Series E Preferred Shares entitled to receive
dividends as set forth above by the Company for all past Dividend Periods, no
dividends (other than in shares of the Company's common stock, par value $.01
per share (together with any other shares of capital stock of the Company into
which such shares shall be reclassified or changed "Common Stock"), or other
shares of capital stock of the Company ranking junior to the Series E Preferred
Shares as to dividends and upon liquidation) shall be declared or paid or set
aside for payment nor (except pursuant to the Guarantee with respect to the
Series A Preferred Shares) shall any other distribution be made upon the Common
Stock or any other Shares of capital stock of the Company ranking junior to or
on a parity with the Series E Preferred Shares as to dividends or upon
liquidation. Unless an amount equal to full cumulative dividends on the Series
E Preferred Shares has been paid to holders of record of Series E Preferred
Shares entitled to receive dividends as set forth above by the Company for all
past Dividend Periods, no Common Stock or any other Shares of capital stock of
the Company ranking junior to or on a parity with the Series E Preferred Shares
as to dividends or upon liquidation shall be redeemed, purchased, or otherwise
acquired for any consideration (or any moneys be paid to or made available for
a sinking fund for the redemption of any shares of any such stock) by the
Company or any subsidiary of the Company, except by conversion into or exchange
for shares of capital stock of the Company ranking junior to the Series E
Preferred Shares as to dividends and upon liquidation and except pursuant to
the Guarantee with respect to the Series A Preferred Shares.
Section 3. Liquidation. (1) In the event of any voluntary or
involuntary liquidation, dissolution, or winding up of the Company, the holders
of Series E Preferred Shares are entitled to receive out of the assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to holders of Common Stock or any other class or series of
shares ranking junior to the Series E Preferred Shares upon liquidation,
liquidating distributions in the amount of the stated value of $2,500 per
share, plus all accumulated and unpaid dividends (whether or not earned or
declared) for the then current and all past Dividend Periods. If, upon any
voluntary or involuntary liquidation, dissolution,
<PAGE> 6
-5-
or winding up of the Company, the amounts payable with respect to the Series E
Preferred Shares and any other shares of the Company ranking as to any such
distribution on a parity with the Series E Preferred Shares are not paid in
full, the holders of Series E Preferred Shares and of such other shares will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which they are
entitled, the holders of Series E Preferred Shares will not be entitled to any
further participation in any distribution of assets by the Company.
(2) Written notice of any such liquidation, dissolution or winding up of
the Company, stating the payment date or dates when, and the place or places
where, the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage prepaid, not less than 30 nor more than
60 days prior to the payment date stated therein, to each record holder of the
Series E Preferred Shares at the respective addresses of such holders as the
same shall appear on the stock transfer records of the Company.
(3) For purposes of liquidation rights, a consolidation or merger of the
Company with or into any other corporation or corporations or a sale of all or
substantially all of the assets of the Company shall be deemed not to be a
liquidation, dissolution or winding up of the Company.
Section 4. Redemption. (1) Except as provided in clause (9) below, the
Series E Preferred Shares are not redeemable prior to March 18, 2003. On and
after such date, the Series E Preferred Shares are redeemable at the option of
the Company, by resolution of the Board of Directors, in whole or in part, from
time to time upon not less than 30 nor more than 60 days' notice, at a cash
redemption price of the stated value of $2,500 per share, plus all accumulated
and unpaid dividends (whether or not earned or declared) to the date of
redemption (the "Redemption Price"). The Redemption Price (other than the
portion consisting of accumulated and unpaid dividends) shall be payable solely
out of the proceeds from the sale of capital stock of the Company. For
purposes of the preceding sentence "Capital Stock" means common stock,
preferred stock, depositary shares, interests, participations or other
ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity securities) or options
to purchase any of the foregoing.
<PAGE> 7
-6-
(2) If fewer than all of the outstanding Series E Preferred Shares are to
be redeemed, the number of shares to be redeemed will be determined by the
Board of Directors and such shares shall be redeemed pro rata from the holders
of record of such shares in proportion to the number of such shares held by
such holders (with adjustments to avoid redemption of fractional shares) or by
lot in a manner determined by the Board of Directors.
(3) Notwithstanding the foregoing, if an amount equal to full dividends
for all past Dividend Periods on the Series E Preferred Shares has not been
paid to holders of record of Series E Preferred Shares entitled to receive
dividends as set forth above by the Company, no Series E Preferred Shares shall
be redeemed, except pursuant to Article IX of the Charter, unless all
outstanding Series E Preferred Shares are simultaneously redeemed, and the
Company shall not purchase or otherwise acquire, directly or indirectly, any
Series E Preferred Shares; provided, however, that the foregoing shall not
prevent the purchase or acquisition of Series E Preferred Shares pursuant to a
purchase or exchange offer provided such offer is made on the same terms to all
holders of Series E Preferred Shares.
(4) Immediately prior to any redemption of Series E Preferred Shares, the
Company shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a dividend payment record
date and prior to the corresponding dividend payment date, in which case each
holder of Series E Preferred Shares at the close of business on such dividend
payment record date shall be entitled to the dividend payable on such shares on
the corresponding dividend payment date notwithstanding the redemption of such
shares before such dividend payment date. Except as expressly provided
hereinabove, the Company shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on Series E Preferred Shares called for
redemption.
(5) Notice of redemption shall be given by publication in a newspaper of
general circulation in The City of New York, such publication to be made once a
week for two successive weeks, commencing not less than 30 nor more than 60 days
prior to the date fixed for redemption thereof. A similar notice will be mailed
by the Company by first class mail, postage prepaid, to each record holder of
the Series E Preferred Shares to be redeemed, not less than 30 nor more than
60 days prior to such redemption date, to the respective addresses of such
holders as the same shall appear on the stock transfer records of
<PAGE> 8
-7-
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of Series E Preferred Shares to be redeemed; (iii) the Redemption Price; (iv)
the place or places where certificates for such shares are to be surrendered
for payment of the Redemption Price; and (v) that dividends on the shares to be
redeemed will cease to accumulate on such redemption date. If fewer than all
the Series E Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Series E Preferred
Shares to be redeemed from such holder.
(6) In order to facilitate the redemption of Series E Preferred Shares,
the Board of Directors may fix a record date for the determination of the
shares to be redeemed, such record date to be not less than 30 nor more than 60
days prior to the date fixed for such redemption.
(7) Notice having been given as provided above, from and after the date
fixed for the redemption of Series E Preferred Shares by the Company (unless
the Company shall fail to make available the money necessary to effect such
redemption), the holders of shares selected for redemption shall cease to be
stockholders with respect to such shares and shall have no interest in or claim
against the Company by virtue thereof and shall have no voting or other rights
with respect to such shares, except the right to receive the moneys payable
upon such redemption from the Company, less any required tax withholding
amount, without interest thereon, upon surrender (and endorsement or assignment
of transfer, if required by the Company and so stated in the notice) of their
certificates, and the shares represented thereby shall no longer be deemed to
be outstanding. If fewer than all the shares represented by a certificate are
redeemed, a new certificate shall be issued, without cost to the holder
thereof, representing the unredeemed shares. The Company may, at its option,
at any time after a notice of redemption has been given, deposit the redemption
price for the Series E Preferred Shares designated for redemption and not yet
redeemed, plus any accumulated and unpaid dividends thereon to the date fixed
for redemption, with the transfer agent or agents for the Series E Preferred
Shares, as a trust fund for the benefit of the holders of the Series E
Preferred Shares designated for redemption, together with irrevocable
instructions and authority to such transfer agent or agents that such funds be
delivered upon redemption of such shares and to pay, on and after the date
fixed for redemption or prior thereto, the redemption price of the shares to
their respective holders upon the surrender of their share certificates. From
and after the making of such deposit, the holders
<PAGE> 9
-8-
of the shares designated for redemption shall cease to be stockholders with
respect to such shares and shall have no interest in or claims against the
Company by virtue thereof and shall have no voting or other rights with respect
to such shares, except the right to receive from such trust fund the moneys
payable upon such redemption, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their certificates, and the shares
represented thereby shall no longer be deemed to be outstanding. Any balance
of such moneys remaining unclaimed at the end of the five-year period
commencing on the date fixed for redemption shall be repaid to the Company upon
its request expressed in a resolution of its Board of Directors.
(8) Any Series E Preferred Shares that shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued preferred stock, without designation as to series until such shares
are once more designated as part of a particular series by the Board of
Directors.
(9) The Series E Preferred Shares are subject to the provisions of Article
IX of the Charter, including, without limitation, the provisions for the
redemption of Excess Stock (as defined in such Article). Notwithstanding the
provisions of Article IX of the Charter, Series E Preferred Shares which have
been exchanged pursuant to such Article for Excess Stock may be redeemed, in
whole or in part, and, if in part, pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by lot in a manner
determined by the Board of Directors, at any time when outstanding Series E
Preferred Shares are being redeemed.
Section 5. Voting Rights. The Series E Preferred Shares shall not have
any voting powers either general or special, except as required by law and
except that:
(1) If and whenever full cumulative dividends on the Series E Preferred
Shares, or any other series of preferred stock of the Company ranking on a
parity with the Series E Preferred Shares as to dividends or upon liquidation
(any such series, a "Parity Preferred Series"), for six quarterly dividend
payment periods, whether or not consecutive, are in arrears and unpaid, (and,
if such an arrearage exists with respect to Series A Preferred Shares, payment
has not been made in the amount of such arrearages pursuant to the Guarantee)
(such failure to pay by the Company, a "Dividend Default"), the holders of all
outstanding Series E Preferred Shares and any Parity Preferred Series, voting
as a single class without regard to series, will be entitled to elect two
Directors until all dividends in arrears and unpaid on the Series E Preferred
Shares and any Parity
<PAGE> 10
-9-
Preferred Series have been paid (either directly or, in the case of the Series A
Preferred Shares, pursuant to the Guarantee) or declared and funds therefor set
apart for payment. At any time when such right to elect Directors separately as
a class shall have so vested, the Company may, and upon the written request of
the holders of record of not less than 20% of the total number of Series E
Preferred Shares and shares of any Parity Preferred Series of the Company then
outstanding shall, call a special meeting of stockholders for the election of
such Directors. In the case of such a written request, such special meeting
shall be held within 90 days after the delivery of such request and, in either
case, at the place and upon the notice provided by law and in the Bylaws of the
Company, provided that the Company shall not be required to call such a special
meeting if such request is received less than 120 days before the date fixed for
the next ensuing Annual Meeting of Stockholders of the Company and the holders
of all outstanding Series E Preferred Shares and shares of any Parity Preferred
Series are afforded the opportunity to elect such Directors (or fill any
vacancy) at such Annual Meeting of Stockholders. Directors elected as aforesaid
shall serve until the next Annual Meeting of Stockholders of the Company or
until their respective successors shall be elected and qualified, or, if sooner,
until an amount equal to all dividends in arrears and unpaid have been paid
(either directly or pursuant to the Guarantee) or declared and funds therefor
set apart for payment. If, prior to the end of the term of any Director elected
as aforesaid, a vacancy in the office of such Director shall occur during the
continuance of a Dividend Default by reason of death, resignation, or
disability, such vacancy shall be filled for the unexpired term by the
appointment of a new Director for the unexpired term of such former Director,
such appointment to be made by the remaining Director or Directors elected as
aforesaid.
(2) The affirmative vote or consent of the holders of at least two-thirds
of the outstanding Series E Preferred Shares and any Parity Preferred Series,
voting as a single class without regard to series, will be required to issue,
authorize or increase the authorized amount of any class or series of shares
ranking prior to the Series E Preferred Shares and shares of each Parity
Preferred Series as to dividends or upon liquidation or to issue or authorize
any obligation or security convertible into or evidencing a right to purchase
any such security. Subject to the preceding sentence, the affirma-
<PAGE> 11
-10-
tive vote or consent of the holders of at least two-thirds of the outstanding
Series E Preferred Shares, voting separately as a class, will be required to
amend or repeal any provision of, or add any provision to, the Charter if such
action would materially and adversely alter or change the powers, preferences,
privileges or rights of the Series E Preferred Shares.
(3) Nothing herein shall be taken to require a class vote or consent in
connection with the authorization, designation, increase or issuance of shares
of any class or series (including additional preferred stock of any series)
that rank junior to or on a parity with the Series E Preferred Shares as to
dividends and liquidation rights or in connection with the authorization,
designation, increase or issuance of any bonds, mortgages, debentures or other
debt obligations of the Company.
Section 6. Conversion. The Series E Preferred Shares are not convertible
into shares of any other class or series of the capital stock of the Company.
<PAGE> 12
-11-
IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to
be signed in its name and on its behalf and attested to by the undersigned on
this 13th day of March, 1998 and the undersigned acknowledges under the
penalties of perjury that these Articles Supplementary are the corporate act of
said Company and that to the best of his knowledge, information and belief, the
matters and facts set forth herein are true in all material respects.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
-------------------------------
Name: Gary H. Heigl
Title: Senior Vice President-
Capital Markets
Attest:
/s/ Scott A. Musil
- ---------------------------
Name: Scott A. Musil
Title: Assistant Secretary
<PAGE> 1
EXHIBIT 4.12
FIRST INDUSTRIAL REALTY TRUST, INC.,
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES E CUMULATIVE PREFERRED STOCK
DEPOSIT AGREEMENT
--------------------
Dated as of March 18, 1998
--------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
DEFINITIONS
Page
ARTICLE II ----
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
<S> <C> <C>
SECTION 2.1. Form and Transfer of Receipts............................... 2
SECTION 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof............................ 5
SECTION 2.3. Registration of Transfer of Receipts........................ 6
SECTION 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock................................................. 6
SECTION 2.5. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts.................................................. 7
SECTION 2.6. Lost Receipts, etc.......................................... 8
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts...................................... 8
SECTION 2.8. Redemption of Stock......................................... 8
SECTION 2.9. Stock Constituting Excess Shares............................10
SECTION 2.10. Interchangeability of Book-Entry Receipts
in Physical, Certificated Form............................10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other
Information...............................................10
SECTION 3.2. Payment of Taxes or Other Governmental
Charges...................................................11
SECTION 3.3. Warranty as to Stock........................................11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
<S> <C> <C>
SECTION 4.1. Cash Distributions..........................................11
SECTION 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges.................................12
SECTION 4.3. Subscription Rights, Preferences or
Privileges................................................12
SECTION 4.4. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts..............................14
SECTION 4.5. Voting Rights...............................................14
SECTION 4.6. Changes Affecting Deposited Securities and
Reclassifications,
Recapitalizations, etc....................................15
SECTION 4.7. Delivery of Reports.........................................15
SECTION 4.8. List of Receipt Holders.....................................15
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR
SECTION 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.................................................16
SECTION 5.2. Prevention of or Delay in Performance by
the Depositary, the Depositary's
Agents, the Registrar or the Company......................17
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar and
the Company...............................................17
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary................................................19
SECTION 5.5. Corporate Notices and Reports...............................20
SECTION 5.6. Indemnification by the Company..............................20
SECTION 5.7. Charges and Expenses........................................21
SECTION 5.8. Tax Compliance..............................................21
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment...................................................22
SECTION 6.2. Termination.................................................22
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
ARTICLE VII
MISCELLANEOUS
<S> <C> <C>
SECTION 7.1. Counterparts................................................23
SECTION 7.2. Exclusive Benefit of Parties................................23
SECTION 7.3. Invalidity of Provisions....................................23
SECTION 7.4. Notices.....................................................23
SECTION 7.5. Appointment of Registrar....................................24
SECTION 7.6. Holders of Receipts Are Parties.............................24
SECTION 7.7. Governing Law...............................................24
SECTION 7.8. Inspection of Deposit Agreement.............................25
SECTION 7.9. Headings....................................................25
</TABLE>
-iii-
<PAGE> 5
DEPOSIT AGREEMENT, dated as of March 18, 1998, among FIRST INDUSTRIAL
REALTY TRUST, INC., a Maryland corporation (the "Company"), FIRST CHICAGO TRUST
COMPANY OF NEW YORK, a national banking association (the "Depositary"), and the
holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of Series E Cumulative Preferred
Stock of the Company with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of Receipts evidencing
Depositary Shares in respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall, for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Articles Supplementary" shall mean the Articles Supplementary filed with
the Secretary of State of the State of Maryland establishing the Stock as a
series of preferred stock of the Company.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean First Chicago Trust Company of New York and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing 1/100
of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is
not the Depositary.
<PAGE> 6
-2-
"Depositary's Office", shall mean any office of the Depositary at which at
any particular time its depositary receipt business shall be administered.
"Excess Stock" shall mean Excess Stock as defined in Section 7.4 of the
Company's Amended and Restated Articles of Incorporation.
"Receipt" shall mean one of the Depositary Receipts, substantially in the
form set forth as Exhibit A hereto, issued hereunder, whether in definitive or
temporary form and evidencing the number of Depositary Shares held of record by
the record holder of such Depositary Shares. If the context so requires, the
term "Receipt" shall be deemed to include the DTC Receipt (as defined in
Section 2.1 hereof).
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books of the Depositary maintained
for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust company
which shall be appointed to register ownership and transfers of Receipts as
herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's 7.90% Series E Cumulative
Preferred Stock, $.0l par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. Form and Transfer of Receipts. The Company and the
Depositary shall make application to The Depository Trust Company ("DTC") for
acceptance of all or a portion of the Receipts for its book-entry settlement
system. The Company hereby appoints the Depositary acting through any
authorized officer thereof as its attorney-in-fact, with full power to
delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility. So long as the Receipts are
eligible for book-entry settlement with DTC, unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with
book-entry settlement through DTC shall be represented by a single receipt (the
"DTC Receipt"),
<PAGE> 7
-3-
which shall be deposited with DTC (or its designee) evidencing all such
Depositary Shares and registered in the name of the nominee of DTC (initially
expected to be Cede & Co.). First Chicago Trust Company of New York or such
other entity as is agreed to by DTC may hold the DTC Receipt as custodian for
DTC. Ownership of beneficial interests in the DTC Receipt shall be shown on,
and the transfer of such ownership shall be effected through, records
maintained by (i) DTC or its nominee for such DTC Receipt, or (ii) institutions
that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer desirable to have the
Receipts available in, book-entry form, the Depositary shall provide written
instructions to DTC to deliver to the Depositary for cancellation the DTC
Receipt, and the Company shall instruct the Depositary to deliver to the
beneficial owners of the Depositary Shares previously evidenced by the DTC
definitive Receipts in physical form evidencing such Depositary Shares. Such
definitive receipts shall be in substantially the form annexed hereto as Annex
A, with appropriate insertions, modifications and omissions, as hereafter
provided.
The beneficial owners of Depositary Shares shall, except as stated above
with respect to Depositary Shares in book-entry form represented by the DTC
Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if and to the extent required by any
securities exchange on which the Receipts are listed. The DTC Receipt shall
bear such legend or legends as may be required by DTC in order for it to accept
the Depository Shares for its book-entry settlement system. Pending the
preparation of definitive Receipts or if definitive Receipts are not required
by any securities exchange on which the Receipts are listed, the Depositary,
upon the written order of the Company, delivered in compliance with Section
2.2, shall execute and deliver temporary Receipts which are printed,
lithographed, typewritten, mimeographed or otherwise substantially of the tenor
of the definitive Receipts in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause de-
<PAGE> 8
-4-
finitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts
at the Depositary's Office or at such other place or places as the Depositary
shall determine, without charge to the holder. Upon surrender for cancellation
of any one or more temporary Receipts, the Depositary shall execute and deliver
in exchange therefor definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered temporary Receipt or
Receipts. Such exchange shall be made at the Company's expense and without any
charge to the holder therefor. Until so exchanged, the temporary Receipts
shall in all respects be entitled to the same benefits under this Agreement,
and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual and/or
facsimile signature of a duly authorized officer of the Depositary. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed in accordance
with the foregoing sentence. The Depositary shall record on its books each
Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares. The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.3, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of
<PAGE> 9
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dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of Stock under this
Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
on the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt or Receipts for the whole number of
Depositary Shares representing, in the aggregate, the Stock so deposited and
registered in such name or names as may be requested by such person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
SECTION 2.3. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by
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the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
SECTION 2.4. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered; provided,
however, that the Depositary shall not issue any Receipt evidencing a
fractional Depositary Share.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the Stock and all money and other property, if
any, represented thereby by surrendering such Receipt or Receipts at the
Depositary's Office or at such other offices as the Depositary may designate
for such withdrawals and paying any unpaid amount due the Depositary. If such
holder's Depositary Shares are being held by DTC or its nominee pursuant to
Section 2.1, such holder shall request withdrawal from the book-entry system of
Receipts representing any number of whole shares. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder or to the
person or persons designated by such holder as hereinafter provided the number
of whole shares of Stock and all money and other property, if any, represented
by the Receipt or Receipts so surrendered for withdrawal, but holders of such
whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Depositary Shares therefor. If a Receipt delivered by
the holder to the Depositary in connection with such withdrawal shall evidence
a number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares
of Stock and such money and other property, if any, to be so withdrawn, deliver
to such holder, or upon his order, a new Receipt evidencing such excess number
of Depositary Shares; provided, however, that the Depositary shall not issue
any Receipt evidencing a fractional Depositary Share.
Delivery of the Stock and money and other property being withdrawn may be
made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem
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appropriate, which, if required by the Depositary, shall be properly endorsed
or accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such shares of Stock be properly endorsed in blank or
accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.5. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Sections 3.2 and 5.7, may require the production of
evidence satisfactory to it as to the identity and genuineness of any
signature, and may also require compliance with such regulations, if any, as
the Depositary or the Company may establish consistent with the provisions of
this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed, or (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
<PAGE> 12
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SECTION 2.6. Lost Receipts, etc. In case any receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its reasonable discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence reasonably satisfactory to the
Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the furnishing
of the Depositary with indemnification reasonably satisfactory to it and the
Company and (iii) the payment of any reasonable expense (including reasonable
fees, charges and expenses of the Depositary) in connection with such execution
and delivery.
SECTION 2.7. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so cancelled.
SECTION 2.8. Redemption of Stock. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Company's Articles of Incorporation or Articles
Supplementary, it shall (unless otherwise agreed to in writing with the
Depositary) give or cause to be given to the Depositary not less than 45 days
notice of the date of such proposed redemption or exchange of Stock and of the
number of such shares held by the Depositary to be so redeemed and the
applicable redemption price, as set forth in the Articles Supplementary, which
notice shall be accompanied by a certificate from the Company stating that such
redemption of Stock is in accordance with the provisions of the Company's
Articles of Incorporation or Articles Supplementary. On the date of such
redemption, provided that the Company shall then have paid or caused to be paid
in full to the Depositary the redemption price of the Stock to be redeemed,
plus an amount equal to any accrued and unpaid dividends thereon to the date
fixed for redemption, in accordance with the provisions of the Articles
Supplementary, the Depositary shall redeem the number of Depositary Shares
representing such Stock. The Depositary shall mail notice of the Company's
redemption of Stock and the proposed simultaneous redemption of the number of
Depositary Shares representing the Stock to be redeemed by first-class mail,
postage prepaid, not less than 30 and not more than 60 days prior to the date
fixed for redemption of such Stock and Depositary Shares (the "Redemption
Date") to the record holders of the Receipts evidencing the Depositary Shares
to be so redeemed, at the address of such holders as they appear on the records
of the
<PAGE> 13
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Depositary; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each such notice shall state: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any such holder are to be
redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price per Depositary Share; (iv) the place or
places where Receipts evidencing Depositary Shares are to be surrendered for
payment of the redemption price; and (v) that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed will cease to accrue on
such Redemption Date and will bear no interest. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
so redeemed shall be determined pro rata or by lot in a manner determined by
the Board of Directors.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption) (i) dividends on the shares of Stock so called for redemption shall
cease to accrue from and after such date, (ii) the Depositary Shares being
redeemed from such proceeds shall be deemed no longer to be outstanding, (iii)
all rights of the holders of Receipts evidencing such Depositary Shares (except
the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate, and (iv) upon surrender in accordance
with such redemption; notice of the Receipts evidencing any such Depositary
Shares called for redemption (properly endorsed or assigned for transfer, if
the Depositary or applicable law shall so require), such Depositary Shares
shall be redeemed by the Depositary at a redemption price per Depositary Share
equal to the same fraction of the redemption price per share paid with respect
to the shares of Stock as the fraction each Depositary Share represents of a
share of Stock plus the same fraction of all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated
on the shares of Stock to be so redeemed and have not theretofore been paid.
Any funds deposited by the Company with the Depositary for any Depositary
Shares that the holders thereof fail to redeem will, upon the written request
of the Company, be returned to the Company after a period of five years
from the date such funds are so deposited.
<PAGE> 14
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If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with the redemption
payment, a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption; provided, however, that the Depositary
shall not issue any Receipt evidencing a fractional Depositary Share.
SECTION 2.9. Stock Constituting Excess Stock. As provided in the
Articles of Incorporation or Articles Supplementary, upon the happening of
certain events, shares of Stock shall be deemed to automatically constitute
Excess Stock. In the event of such a conversion, the Receipt representing the
deposited Stock so converted shall no longer represent, to the extent of the
shares so converted, such deposited Stock. Promptly upon its knowledge of the
conversion of such deposited Stock into Excess Shares, the Company shall notify
the Depositary of such conversion, the number of shares of deposited Stock so
converted, and the identity of the holder of the Receipt so affected, whereupon
the Depositary shall promptly notify the holder of such Receipt as to the
foregoing information and the requirement for the holder to surrender such
Receipt to the Depositary for cancellation of the number of Depositary Shares
evidenced thereby equal to the deposited Stock constituting Excess Shares
represented thereby.
If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation. Upon the conversion of the
deposited Stock and cancellation of the Depositary Shares represented thereby,
the Depositary will make appropriate adjustments in its records to reflect such
conversion and cancellation (including the reduction of any fractional share of
deposited Stock and the issuance of any Excess Shares).
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may
<PAGE> 15
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reasonably deem necessary or proper or otherwise reasonably request. The
Depositary or the Company may withhold the delivery, or delay the registration
of transfer, redemption or exchange, of any Receipt or the withdrawal or
conversion of the Stock represented by the Depositary Shares evidenced by any
Receipt or the distribution of any dividend or other distribution or the sale
of any rights or of the proceeds thereof until such proof or other information
is filed or such certificates are executed or such representations and
warranties are made.
SECTION 3.2. Payment of Taxes or Other Governmental Charges. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.3. Warranty as to Stock. The Company hereby represents and
warrants that the Stock, when issued, will be duly authorized, validly issued,
fully paid and nonassessable. Such representation and warranty shall survive
the deposit of the Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.4 such amounts of such dividend or
distribution as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required
<PAGE> 16
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by law, regulation or court process, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly.
In the event that the calculation of any such cash dividend or other cash
distribution to be paid to any record holder on the aggregate number of
Depositary Receipts held by such holder results in an amount which is a
fraction of a cent, the amount the Depositary shall distribute to such record
holder shall be rounded to the next highest whole cent if such fraction of a
cent is equal to or greater than $.005; otherwise such fractional interest
shall be disregarded; and upon request of the Depositary, the Company shall
pay the additional amount to the Depositary for distribution.
SECTION 4.2. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to record holders of Receipts on
the record date fixed pursuant to Section 4.4 such amounts of the securities or
property received by it as are, as nearly as may be practicable, in proportion
to the respective numbers of Depositary Shares evidenced by the Receipts held
by such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes) the Depositary deems
(after consultation with the Company) such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem equitable and appropriate. The net proceeds of any such sale
shall, subject to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received in
cash.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the
<PAGE> 17
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Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer of
any such rights, preferences or privileges the Depositary determines that it is
not lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to execute such rights, preferences or
privileges, then the Depositary, in its discretion (with approval of the
Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.1 in the case of a distribution received in
cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such
registration statement shall have become effective, or that the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel reasonably satisfactory to the Depositary to
such effect.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for
such rights, preferences or privileges to be made available to holders of
Receipts, the Company
<PAGE> 18
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will use its reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, etc.; Fixing Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the Depositary shall in each such instance fix a record date
(which shall be the same date as the record date fixed by the Company with
respect to or otherwise in accordance with the terms of the Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds
of the sale thereof, or to give instructions for the exercise of voting rights
at any such meeting, or who shall be entitled to notice of such meeting or for
any other appropriate reasons.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the
Depositary to give a discretionary proxy to a person designated by the Company)
and a brief statement as to the manner in which such instructions may be given.
Upon the written request of the holders of Receipts on the relevant record
date, the Depositary shall use its best efforts to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Stock represented by the Depositary Shares evidenced
by all Receipts as to which any particular voting instructions are received.
The Company hereby agrees to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to vote such Stock or cause
such Stock to be voted. In the absence of specific instructions from the
holder of a Receipt, the Depositary will not vote to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
<PAGE> 19
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SECTION 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par value or
liquidation preference, split-up, combination or any other reclassification of
the Stock, or upon any recapitalization, reorganization, merger or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval (not to be unreasonably withheld) of,
and shall upon the instructions of, the Company, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments in the
fraction of an interest in one share of Stock represented by one Depositary
Share as may be necessary (as certified by the Company) fully to reflect the
effects of such change in par value or liquidation preference, split-up,
combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger or consolidation and (ii) treat any securities which
shall be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion or in respect of such Stock. In any such case, the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par value or liquidation preference, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Stock represented thereby
only into or for, as the case may be, the kind and amount of shares of stock
and other securities and property and cash into which the Stock represented by
such Receipts would have been converted or for which such Stock would have been
exchanged or surrendered had such Receipt been surrendered immediately prior to
the effective date of such transaction.
SECTION 4.7. Delivery of Reports. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION 4.8. List of Receipt Holders. Promptly upon request from time to
time by the Company, the Depositary shall furnish to it a list, as of the most
recent practicable date, of the names, addresses and holdings of Depositary
Shares of all record holders of Receipts. The Company shall be entitled to
receive such list four times annually.
<PAGE> 20
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ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S
AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books during
normal business hours shall be open for inspection by the record holders of
Receipts; provided that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interest as an owner of Depositary Shares
evidenced by the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a Registrar
for registration of the Receipts or the Depositary Shares evidenced thereby.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more national
securities exchanges, the Depositary will appoint a Registrar (acceptable to
the Company) for registration of such Receipts or Depositary Shares in
accordance with any requirements of such exchange. Such Registrar (which may
be the Depositary if so permitted by the requirements of any such exchange) may
be removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, such Depositary
Shares or such Stock is listed on one or more other stock exchanges, the
Depositary will, at the request and at the expense of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable securities exchange regulation.
<PAGE> 21
-17-
The Depositary may from time to time appoint Depositary's Agents to act in
any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate
the appointment of such Depositary's Agents. The Depositary will notify the
Company of any such action.
SECTION 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Amended and Restated Articles of
Incorporation or by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, the Depositary's
Agent, the Registrar or the Company shall be prevented, delayed or forbidden
from, or subjected to any penalty on account of, doing or performing any act or
thing which the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the Registrar or
the Company incur liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement shall provide shall or may be
done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in the
case of any such exercise or failure to exercise discretion not caused as
aforesaid, if caused by the gross negligence or willful misconduct of the party
charged with such exercise or failure to exercise.
SECTION 5.3. Obligation of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor the Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement or any Receipt to holders of
Receipts other than for its gross negligence, willful misconduct or bad faith.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its reasonable opinion may involve it in expense or
liability unless indemnity reasonably satisfactory to it against ex-
<PAGE> 22
-18-
pense and liability be furnished as often as may be reasonably required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or
information from any person presenting Stock for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, the Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document reasonably believed by it
to be genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote made, as long as any such action or inaction is in good faith.
The Depositary will indemnify the Company and hold it harmless from any loss,
liability or expense (including the reasonable costs and expenses of defending
itself) which arises from its negligence, wilful misconduct or bad faith. The
Depositary undertakes and any Registrar shall be required to undertake only
such duties as specifically set forth herein and no implied covenants or
obligations shall be read into this Deposit Agreement against the Depositary or
Registrar. The indemnification obligations of the Depositary set forth in this
Section 5.3 shall survive any termination of this Agreement and any succession
of any Depositary.
The Depositary, its parent, affiliates or subsidiaries, the Depositary's
Agents and the Registrar may own, buy, sell and deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or
become pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to any such person
or otherwise act as fully or as freely as if it were not the Depositary,
parent, affiliate or subsidiary or Depositary's Agent or Registrar hereunder.
The Depositary may also act as trustee, transfer agent or registrar of any of
the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent nor
the Registrar, acting as the Depositary's Agent or Registrar, as the case may
be, shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary, any Depositary's Agent and the
<PAGE> 23
-19-
Registrar are acting only in a ministerial capacity as Depositary or Registrar
for the Stock.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent nor the Registrar makes any representation or has
any responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the Stock,
the Depositary Shares or the Receipts (except for its counter-signatures
thereon) or any instruments referred to therein or herein, or as to the
correctness of any statement made therein or herein.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts. Notwithstanding any other provision
herein or in the Receipts, the Depositary makes no warranties or
representations as to the validity or genuineness of any Stock at any time
deposited with the Depositary hereunder or of the Depositary Shares, as to the
validity or sufficiency of this Deposit Agreement, as to the value of the
Depositary Shares or as to any right, title or interest of the record holders
of Receipts in and to the Depositary Shares. The Depositary shall not be
accountable for the use or application by the Company of the Depositary Shares
or the Receipts or the proceeds thereof.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$150,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the
resigning or removed Depositary may peti-
<PAGE> 24
-20-
tion any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record
holders of all outstanding Receipts and such records, books and other
information in its possession relating thereto. Any successor Depositary
shall promptly mail notice of its appointment to the record holders of
Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.5. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including without limitation financial statements) required by law or by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed, to be furnished to the record holders of
Receipts. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request.
SECTION 5.6. Indemnification by the Company. The Company shall indemnify
the Depositary, any Depositary's Agent and the Registrar against, and hold each
of them harmless from, any loss, liability or expense (including the reasonable
costs and expenses of defending itself) which may arise out of acts performed
or omitted in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liabil-
<PAGE> 25
-21-
ity arising out of negligence, willful misconduct or bad faith on the
respective parts of any such person or persons. The obligations of the Company
set forth in this Section 5.6 shall survive any termination of this Agreement
or any succession of any Depositary or Depositary's Agent.
SECTION 5.7. Charges and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay charges of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of
the Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares, and any redemption of the Stock at the option of the
Company. All other transfer and other taxes and governmental charges shall be
at the expense of holders of Depositary Shares. If, at the request of a holder
of Receipts, the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such charges and
expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such charges and
expenses. The Depositary shall present its statement for charges and expenses
to the Company at such intervals as the Company and the Depositary may agree.
SECTION 5.8. Tax Compliance. The Depositary, on its own behalf and on
behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or
exercise of rights under the Depositary Receipts or the Depositary Shares.
Such compliance shall include, without limitation, the preparation and timely
filing of required returns and the timely payment of all amounts required to
be withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction received from the Company
with respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Agreement rely on any such direction in accordance with the provisions of
Section 5.3 hereof.
<PAGE> 26
-22-
The Depositary shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available on
request to the Company or to its authorized representatives.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees) which shall materially adversely alter the rights
of the holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary Shares
then outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to be bound by the Deposit Agreement as amended thereby. Subject to
Section 2.9 hereof, notwithstanding the foregoing, in no event may any
amendment impair the right of any holder of any Depositary Shares, upon
surrender of the Receipts evidencing such Depositary Shares and subject to any
conditions specified in this Deposit Agreement, to receive shares of Stock and
any money or other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by
the Company at any time upon not less than 30 days' prior written notice to the
Depositary, in which case, on a date that is not later than 30 days after the
date of such notice, the Depositary shall deliver or make available for
delivery to holders of Depositary Shares, upon surrender of the Receipts
evidencing such Depositary Shares, such number of whole or fractional shares of
Stock as are represented by such Depositary Shares. This Deposit Agreement
will automatically terminate after (i) all outstanding Depositary Shares have
been redeemed pursuant to Section 2.8 or (ii) there shall have been made a
final distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Receipts pursuant to Section 4.1 or
4.2, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit
<PAGE> 27
-23-
Agreement except for its obligations to the Depositary, the Registrar and any
Depositary's Agent under Sections 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.2. Exclusive Benefit of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to the Company at:
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
Facsimile No.: (312) 922-6320
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office,
at:
<PAGE> 28
-24-
First Chicago Trust Company of New York
One First National Plaza, Suite 0123
Chicago, IL 60670
Attention: John Ruocco
Facsimile No.: (312) 407-3021
or at any other address of which the Depositary shall have notified the Company
in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary,
or if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
facsimile transmission) is deposited for mailing by first class mail, postage
prepaid. The Depositary or the Company may, however, act upon any telegram or
facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5. Appointment of Registrar. The Company hereby also appoints
the Depositary as Registrar in respect of the Receipts and the Depositary
hereby accepts such appointments.
SECTION 7.6. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.7. Governing Law. THIS DEPOSIT AGREEMENT AND THE RECEIPTS AND
ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS APPLICABLE TO CONTRACTS
MADE IN AND TO BE PERFORMED IN THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
<PAGE> 29
-25-
SECTION 7.8. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agent and
shall be open to inspection during business hours at the Depositary's office or
respective offices of the Depositary's Agent, if any, by any holder of a
Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
Deposit Agreement have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the Receipts or to have any
bearing upon the meaning or interpretation of any provision contained herein or
in the Receipts.
<PAGE> 30
-26-
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FIRST INDUSTRIAL REALTY TRUST, INC.
/s/ Michael J. Havala
----------------------
Name: Michael J. Havala
Title: Chief Financial Officer
FIRST CHICAGO TRUST COMPANY OF NEW
YORK
/s/ John H. Ruocco
-------------------
Name: John H. Ruocco
Title: Account Officer
<PAGE> 31
ANNEX A
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
DR- (CUSIP 32054K889)
see reverse for certain definitions
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NY
X [Logo]
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A SHARE OF
7.90% SERIES E CUMULATIVE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
First Chicago Trust Company of New York, a national banking association
duly organized and existing under the laws of the United States of America with
an office at the time of execution of the Deposit Agreement (as defined below)
at One First National Plaza, Suite 0123, Chicago, IL 60670, as Depositary (the
"Depositary"), hereby certifies that
_____________is a registered owner of ________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing 1/100 of one fully
paid and non-assessable share of 7.90% Series E Cumulative Preferred Stock,
$.01 par value per share (the "Shares"), of First Industrial Realty Trust,
Inc., a Maryland corporation (the "Company"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement
dated as of March 18, 1998 (the "Deposit Agreement"), among the Company, the
Depositary and the holders from time to time of Receipts for Depositary Shares.
By accepting this Receipt, the holder hereof becomes a party to and agrees to
be bound by all the terms and conditions of the Deposit Agreement. This
Receipt shall not be valid or obligatory for any purpose or be entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized officer
or, if a Registrar in respect of the Receipts (other than the Depositary) shall
have been appointed, by the manual signature of a duly authorized officer of
such Registrar.
Dated:
Countersigned and Registered:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Depositary and Registrar
By: ____________________________________
<PAGE> 32
-2-
By: ____________________________________
SECRETARY AND TREASURER
By: ____________________________________
PRESIDENT
<PAGE> 33
[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
THE SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF
ITS QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN
EXCESS OF 9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF
DIRECTORS OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY
PERSON WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE
LIMITATION MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN
THIS LEGEND HAVE THE MEANINGS DEFINED IN THE CORPORATION'S ARTICLES OF
INCORPORATION, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE
SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS
ON TRANSFER ARE VIOLATED, THE SHARES OF STOCK REPRESENTED HEREBY MAY BE
AUTOMATICALLY EXCHANGED FOR SHARES OF EXCESS STOCK WHICH WILL BE HELD IN TRUST
BY THE CORPORATION.
THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS
AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH
CLASS WHICH THE CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY
PREFERRED OR SPECIAL CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS
AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN
SET AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND
PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of
this Depositary Receipt, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -. . . Custodian . .
TEN ENT -- tenants by the entireties (Cust) Minor
JT TEN -- as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as Act . . . . .
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _______________ hereby sells, assigns and transfers unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Depositary Shares represented by the within Depositary Receipt, and do hereby
irrevocably constitute and appoint ________________ Attorney to transfer the
said Depositary Shares on the books of the within named Depositary with full
power of substitution in the premises.
____________________________________ __________________________________
Dated Signed
A-1
<PAGE> 34
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED
By: ___________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
A-2
<PAGE> 1
EXHIBIT 4.17
FACE OF NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED CUSIP #: 32055T-AA1 REGISTERED PRINCIPAL AMOUNT: $50,000,000
No. FXR-01
_________________________________
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: 11/20/97 INTEREST RATE: 6.90% STATED MATURITY DATE: 11/21/2005
INTEREST PAYMENT DATE(S) DEFAULT RATE: N/A
[X] 5/21 and 11/21
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: N/A PERCENTAGE: N/A PERCENTAGE
REDUCTION: N/A
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S) N/A ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: N/A
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[X] United States dollars [X] $1,000 and integral AGENT: N/A
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = __________ [ ] Yes PROVISIONS: N/A
[X] No
</TABLE>
<PAGE> 2
-2-
First Industrial, L.P., a limited partnership duly organized and existing
under the laws of Delaware (hereinafter referred to as the "Operating
Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $50,000,000, on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption Date
or Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
the Interest Rate per annum specific above, until the principal hereof is paid
or duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest, including any overdue
sinking fund or redemption payment. The Operating Partnership will pay interest
in arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date;
provided, however, that if the Original Issue Date occurs between a Record Date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the holder of this Note on the Record Date with respect
to such second Interest Payment Date. Interest on this Note will be computed on
the basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereto and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
<PAGE> 3
-3-
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect
of this Note due on the Maturity Date or any prior date on which the principal
or an installment of principal of this Note becomes due and payable, whether by
the declaration of acceleration or otherwise, will be made in immediately
available funds upon presentation and surrender of this Note (and, with respect
to any applicable repayment of this Note, upon presentation and surrender of
this Note and a duly completed election form as contemplated on the reverse
hereof) at the office or agency maintained by the Operating Partnership for that
purpose in the Borough of Manhattan, The City of New York, currently the office
of the Trustee located at 100 Wall Street, New York, New York 10005, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Operating Partnership may determine; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment is
to be made in the Specified Currency in accordance with the provisions set forth
below, such payment may be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office or agency maintained by the Operating Partnership in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made at the aforementioned office or agency maintained by the
Operating Partnership or, at the option of the Operating Partnership, by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register maintained by the Trustee; provided, however,
that a holder of U.S.$10,000,000 (or, if the Specified Currency is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on any
Interest Payment Date other than the Maturity Date by wire transfer of
immedi-
<PAGE> 4
-4-
ately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a
day that is not a Business Day, the required payment of principal, premium, if
any, and/or interest shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue with respect to such payment for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be, to the date
of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in The City of New York; provided, however, that if the Specified Currency
is other than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, if the Specified Currency is European
Currency Units ("ECU"), such day is not a day that appears as an ECU
no-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association), or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market). Principal Financial Center means the capital
city of the country issuing the Specified Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECU, the Principal Financial Center shall be The
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Operating Partnership is obligated to make payments of
principal, premium, if any, and interest in respect of this Note in the
Specified Currency (or, if the Specified Currency is not at the time of such
payment legal tender for the payment of public and private debts, in such other
coin or currency of the country which issued the Specified Currency as at the
time of such payment is legal tender for the payment of such debts). If the
Specified Currency is other than United States dollars, except as provided
below, any such amounts
<PAGE> 5
-5-
so payable by the Operating Partnership will be converted by the Exchange
Rate Agent specified above into United States dollars for payment to the holder
of this Note.
If the Specified Currency is other than United States dollars,
the holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency, any United
States dollar amount to be received by the holder of this Note will be based on
the highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Operating Partnership for the purchase by the
quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Foreign Currency Notes scheduled to receive
United States dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the holder of
this Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars,
the holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust Office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
<PAGE> 6
-6-
If the Specified Currency is other than United States dollars
or a composite currency and the holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the reasonable control of the
Operating Partnership, the Operating Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for such Specified Currency as certified for
customs purposes by (or if not so certified, as otherwise determined by) the
Federal Reserve Bank of New York. Any payment made under such circumstances in
United States dollars will not constitute an Event of Default (as defined in the
Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the
holder of this Note shall have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency and if such composite currency
is unavailable due to the imposition of exchange controls or other circumstances
beyond the reasonable control of the Operating Partnership, then the Operating
Partnership will be entitled to satisfy its obligations to the holder of this
Note by making such payment in United States dollars. The amount of each payment
in United States dollars shall be computed by the Exchange Rate Agent on the
basis of the equivalent of the composite currency in United States dollars. The
component currencies of the composite currency for this purpose (collectively,
the "Component Currencies" and each, a "Component Currency") shall be the
currency amounts that were components of the composite currency as of the last
day on which the composite currency was used. The equivalent of the composite
currency in United States dollars shal1 be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
<PAGE> 7
-7-
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion. If two
or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Exchange Rate
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof and, if so specified above on the face
hereof, in the Addendum hereto, which further provisions shall have the same
force and effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained
herein, if the face of this Note specifies that an Addendum is attached hereto
or that "Other/Additional Provisions" apply to this Note, this Note shall be
subject to the terms set forth in such Addendum or such "Other/Additional
Provisions."
Unless the Certificate of Authentication hereon has been
executed by the Trustee or its Authenticating Agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE> 8
-8-
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Note to be duly
executed under its seal.
Dated: November 20, 1997 FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust,
Inc., its sole general partner
By /s/ Gary H. Heigl
--------------------------------
Name: Gary H. Heigl
Title: Sr.V.P. Capital Markets
(SEAL)
Attest:
/s/ Mike Havala
- -----------------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to in
the within-mentioned Indenture.
Dated: November 20, 1997 FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ H. H. Hall, Jr.
---------------------------------
Authorized Signatory
<PAGE> 9
-9-
REVERSE OF NOTE
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities
(the "Securities") of the Operating Partnership issued and to be issued under an
Indenture, dated as of May 13, 1997, as amended, modified or supplemented from
time to time (the "Indenture"), between the Operating Partnership and First
Trust National Association, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Operating
Partnership, the Trustee and the holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of the series of Securities designated as "Medium-Term Notes Due
Nine Months or More from Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings assigned
to such terms in the Indenture or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons
in minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise specified on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or repayable prior to the
Stated Maturity Date.
This Note will be subject to redemption at the option of the
Operating Partnership on any date on and after the Initial Redemption Date, if
any, specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face
<PAGE> 10
-10-
hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary of
the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of the
unpaid principal amount to be redeemed. In the event of redemption of this Note
in part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Operating
Partnership at the option of the holder hereof on the Optional Repayment
Date(s), if any, specified on the face hereof, in whole or in part in increments
of U.S.$1,000 or the minimum Authorized Denomination (provided that any
remaining principal amount hereof shall be at least U.S.$1,000 or such minimum
Authorized Denomination), at a repayment price equal to 100% of the unpaid
principal amount to be repaid, together with unpaid interest accrued thereon to
the date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, the Trustee must receive at its office in the Borough of Manhattan, The
City of New York, referred to on the face hereof, at least 30 days but not more
than 60 days prior to the Repayment Date (i) this Note and the form hereon
entitled "Option to Elect Repayment" duly completed or (ii) a telegram, telex,
facsimile transmission, or a letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States setting forth the name of the holder
hereof, the principal amount of this Note, the principal amount of this Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified
on the face hereof, the amount payable to the holder of this Note in
<PAGE> 11
-11-
the event of redemption, repayment or acceleration of maturity of this Note
will be equal to the sum of (i) the Issue Price specified on the face hereof
(increased by any accruals of the Discount, as defined below) and, in the event
of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest on this Note accrued from
the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of acceleration of
maturity of this Note, such Discount will be accrued using a constant yield
method. The constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as defined
below), corresponds to the shortest period between Interest Payment Dates (with
ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the Original Issue Date
to the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding-period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of Default
with respect to the Notes, in each case upon compliance with certain conditions
set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Operating Partnership and the rights of the holders of the
Securities at any time by the Operating Partnership and the
<PAGE> 12
-12-
Trustee with the consent of the holders of not less than a majority of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Operating Partnership with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the holders of not
less than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all of
the holders of Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange heretofore or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Operating
Partnership, which is absolute and unconditional, to pay principal, premium, if
any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Operating Partnership upon surrender
of this Note for registration of transfer at the office or agency of the
Operating Partnership in any place where the principal hereof and any premium or
interest hereon are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Operating Partnership and the
Security Registrar, duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
<PAGE> 13
-13-
No service charge shall be made for any such registration of
transfer or exchange, but the Operating Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of
transfer, the Operating Partnership, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the holder in whose name this Note is
registered as the owner thereof for all purposes, whether or not this Note be
overdue, and neither the Operating Partnership, the Trustee nor any such agent
shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Operating Partnership which has been
formed as a Delaware limited partnership, and not individually, and neither the
general partner, officers, employees or limited partners of the Operating
Partnership shall be bound or have any personal liability hereunder or
thereunder. The holder of this Note by accepting this Note waives and releases
all such liability. This waiver and release are part of the consideration for
the issue of this Note. Each party hereto shall look solely to the assets of the
Operating Partnership for satisfaction of any liability of the Operating
Partnership in respect of this Note and all documents, agreements,
understandings and arrangements relating to any transaction contemplated hereby
or thereby and will not seek recourse or commence any action against any of the
trustees, officers or shareholders of the Operating Partnership or any of their
personal assets for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto.
The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
<PAGE> 14
-14-
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ______________________
in common (State)
Additional abbreviations may also be used though not in the
above list.
__________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________ _______________________________________
______________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
______________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting
and appointing
______________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated:_____________________ ________________________________
________________________________
Notice: The signature(s) on this
Assignment must correspond with
the name(s) as written upon the
face of this Note in every
particular, without alteration
or enlargement or any change
whatsoever.
<PAGE> 15
-15-
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s)
the Operating Partnership to repay this Note (or portion hereof specified below)
pursuant to its terms at a price equal to 100% of the principal amount to be
repaid, together with unpaid interest accrued hereon to the Repayment Date, to
the undersigned, at
_____________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in the Borough of Manhattan, The City of New York,
currently located at 100 Wall Street, New York, New York 10005, this Note with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000 (or,
if the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof)) which the holder elects
to have repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $____________ _________________________
Notice: The signature(s) on this Option
Date: _____________________ to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.
<PAGE> 1
EXHIBIT 4.18
FACE OF NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED CUSIP #: 32055TAN3 REGISTERED PRINCIPAL AMOUNT: $150,000,000
No. FXR-02 _________________________________
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: 12/1/97 INTEREST RATE: 7.00% STATED MATURITY DATE: 12/1/2006
INTEREST PAYMENT DATE(S) DEFAULT RATE: N/A
[X] 6/1 and 12/1
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: N/A PERCENTAGE: N/A PERCENTAGE
REDUCTION: N/A
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S) N/A ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: N/A
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[X] United States dollars [X] $1,000 and integral AGENT: N/A
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = __________ [ ] Yes PROVISIONS: N/A
[X] No
</TABLE>
<PAGE> 2
-2-
First Industrial, L.P., a limited partnership duly organized and existing
under the laws of Delaware (hereinafter referred to as the "Operating
Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $150,000,000, on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each
as defined on the reverse hereof) (each such Stated Maturity Date, Redemption
Date or Repayment Date being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specific above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium and/or interest,
including any overdue sinking fund or redemption payment. The Operating
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this Note
on the Record Date with respect to such second Interest Payment Date. Interest
on this Note will be computed on the basis of a 360-day year of twelve 30-day
months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest
has been paid or duly provided for) to, but excluding, the applicable Interest
Payment Date or the Maturity Date, as the case may be (each, an "Interest
Period"). The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions described
herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); provided, however,
that interest payable on the Maturity Date will be payable to the person to
whom the principal hereto and premium, if any, hereon shall be payable. Any
such interest not so punctually paid or duly provided for ("Defaulted
Interest") will forthwith cease to be payable to the holder on any Record Date,
and shall be paid to the person in
<PAGE> 3
-3-
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at
the office or agency maintained by the Operating Partnership for that purpose
in the Borough of Manhattan, The City of New York, currently the office of the
Trustee located at 100 Wall Street, New York, New York 10005, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the
Operating Partnership may determine; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment
is to be made in the Specified Currency in accordance with the provisions set
forth below, such payment may be made by wire transfer of immediately available
funds to an account with a bank designated by the holder hereof at least 15
calendar days prior to the Maturity Date, provided that such bank has
appropriate facilities therefor and that this Note (and, if applicable, a duly
completed repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Operating Partnership in time
for the Trustee to make such payment in such funds in accordance with its
normal procedures. Payment of interest due on any Interest Payment Date other
than the Maturity Date will be made at the aforementioned office or agency
maintained by the Operating Partnership or, at the option of the Operating
Partnership, by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained by the Trustee;
provided, however, that a holder of U.S.$10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immedi-
<PAGE> 4
-4-
ately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in
The City of New York; provided, however, that if the Specified Currency is
other than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order
to close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, if the Specified Currency is European
Currency Units ("ECU"), such day is not a day that appears as an ECU
no-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association),
or, if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market). Principal Financial Center means the capital
city of the country issuing the Specified Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECU, the Principal Financial Center shall be The
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Operating Partnership is obligated to make payments of principal,
premium, if any, and interest in respect of this Note in the Specified Currency
(or, if the Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, except as provided below, any such amounts
<PAGE> 5
-5-
so payable by the Operating Partnership will be converted by the Exchange Rate
Agent specified above into United States dollars for payment to the holder of
this Note.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive such amounts in such Specified Currency. If
the holder of this Note shall not have duly made an election to receive all or
a specified portion of any payment of principal, premium, if any, and/or
interest in respect of this Note in the Specified Currency, any United States
dollar amount to be received by the holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) selected by the
Exchange Rate Agent and approved by the Operating Partnership for the purchase
by the quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Foreign Currency Notes scheduled to receive
United States dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the holder of
this Note by deductions from such payments. If three such bid quotations are
not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust Office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal, premium, if
any, and/or interest and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the
Trustee, but written notice of any such revocation must be received by the
Trustee on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be.
<PAGE> 6
-6-
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the Operating
Partnership, the Operating Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market
Exchange Rate" for the Specified Currency means the noon dollar buying rate in
The City of New York for cable transfers for such Specified Currency as
certified for customs purposes by (or if not so certified, as otherwise
determined by) the Federal Reserve Bank of New York. Any payment made under
such circumstances in United States dollars will not constitute an Event of
Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable
due to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Operating Partnership, then the Operating Partnership
will be entitled to satisfy its obligations to the holder of this Note by
making such payment in United States dollars. The amount of each payment in
United States dollars shall be computed by the Exchange Rate Agent on the basis
of the equivalent of the composite currency in United States dollars. The
component currencies of the composite currency for this purpose (collectively,
the "Component Currencies" and each, a "Component Currency") shall be the
currency amounts that were components of the composite currency as of the last
day on which the composite currency was used. The equivalent of the composite
currency in United States dollars shall be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States
dollar equivalent of each of the Component Currencies shall be determined by
the Exchange Rate Agent on the basis of the most recently available Market
Exchange Rate for each such Component Currency, or as otherwise specified on
the face hereof.
<PAGE> 7
-7-
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above on the face hereof, in the
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by the
Trustee or its Authenticating Agent by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
<PAGE> 8
-8-
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Note to be duly
executed under its seal.
Dated: December 8, 1997 FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust,
Inc., its sole general partner
By /s/ Gary H. Heigl
------------------------------------
Name: Gary H. Heigl
Title: Sr. V.P. Capital Markets
(SEAL)
Attest:
/s/ Mike Havala
- -----------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
Dated: December 8, 1997 FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ H.H. Hall, Jr.
-------------------------------------
Authorized Signatory
<PAGE> 9
-9-
REVERSE OF NOTE
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Operating Partnership issued and to be issued under an
Indenture, dated as of May 13, 1997, as amended, modified or supplemented from
time to time (the "Indenture"), between the Operating Partnership and First
Trust National Association, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Operating Partnership, the Trustee and the holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Securities designated as
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes").
All terms used but not defined in this Note or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture or on the face hereof, as
the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated
Maturity Date.
This Note will be subject to redemption at the option of the Operating
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face
<PAGE> 10
-10-
hereof multiplied by the unpaid principal amount of this Note to be redeemed.
The Initial Redemption Percentage shall decline at each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction, if any,
specified on the face hereof until the Redemption Price is 100% of the unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Operating Partnership at the
option of the holder hereof on the Optional Repayment Date(s), if any,
specified on the face hereof, in whole or in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the date
fixed for repayment (each, a "Repayment Date"). For this Note to be repaid,
the Trustee must receive at its office in the Borough of Manhattan, The City of
New York, referred to on the face hereof, at least 30 days but not more than 60
days prior to the Repayment Date (i) this Note and the form hereon entitled
"Option to Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a commercial bank or
trust company in the United States setting forth the name of the holder hereof,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in
<PAGE> 11
-11-
the event of redemption, repayment or acceleration of maturity of this Note
will be equal to the sum of (i) the Issue Price specified on the face hereof
(increased by any accruals of the Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest on this Note accrued
from the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as
the "Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial coupon rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding-period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the holders of the Securities at any
time by the Operating Partnership and the
<PAGE> 12
-12-
Trustee with the consent of the holders of not less than a majority of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, on behalf of the holders of all such
Securities, to waive compliance by the Operating Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit
the holders of not less than a majority of the aggregate principal amount of
the outstanding Securities of any series, in certain instances, to waive, on
behalf of all of the holders of Securities of such series, certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange heretofore or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Operating
Partnership, which is absolute and unconditional, to pay principal, premium, if
any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Operating Partnership upon surrender of this Note for
registration of transfer at the office or agency of the Operating Partnership
in any place where the principal hereof and any premium or interest hereon are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Operating Partnership and the Security Registrar,
duly executed by, the holder hereof or by his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
<PAGE> 13
-13-
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership
or the Trustee may treat the holder in whose name this Note is registered as
the owner thereof for all purposes, whether or not this Note be overdue, and
neither the Operating Partnership, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby have been executed
or entered into by the undersigned in his/her capacity as an officer of the
sole general partner of the Operating Partnership which has been formed as a
Delaware limited partnership, and not individually, and neither the general
partner, officers, employees or limited partners of the Operating Partnership
shall be bound or have any personal liability hereunder or thereunder. The
holder of this Note by accepting this Note waives and releases all such
liability. This waiver and release are part of the consideration for the issue
of this Note. Each party hereto shall look solely to the assets of the
Operating Partnership for satisfaction of any liability of the Operating
Partnership in respect of this Note and all documents, agreements,
understandings and arrangements relating to any transaction contemplated hereby
or thereby and will not seek recourse or commence any action against any of the
trustees, officers or shareholders of the Operating Partnership or any of their
personal assets for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
<PAGE> 14
-14-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
___________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________ _________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
________________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________
_______________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s) as
written upon the face of this
Note in every particular,
without alteration or
enlargement or any change
whatsoever.
<PAGE> 15
-15-
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Operating Partnership to repay this Note (or portion hereof specified below)
pursuant to its terms at a price equal to 100% of the principal amount to be
repaid, together with unpaid interest accrued hereon to the Repayment Date, to
the undersigned, at
_____________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at 100 Wall Street, New York, New York 10005, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $____________ _________________________
Date: _____________________ Notice: The
signature(s) on this
Option to Elect
Repayment must
correspond with the
name(s) as written upon
the face of this Note in
every particular,
without alteration or
enlargement or any
change whatsoever.
<PAGE> 1
EXHIBIT 4.19
FACE OF NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE
TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED CUSIP #: 32055TAG8 REGISTERED PRINCIPAL AMOUNT: $100,000,000
No. FXR-03
______________________
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: 12/8/97 INTEREST RATE: 7.50%
STATED MATURITY DATE: 12/1/2017
INTEREST PAYMENT DATE(S) DEFAULT RATE: N/A
[X] 6/1 and 12/10
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: N/A PERCENTAGE: N/A PERCENTAGE
REDUCTION: N/A
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S) N/A ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: N/A
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[X] United States dollars [X] $1,000 and integral AGENT: N/A
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = __________ [ ] Yes PROVISIONS: N/A
[x] No
<PAGE> 2
-2-
First Industrial, L.P., a limited partnership duly organized and
existing under the laws of Delaware (hereinafter referred to as the "Operating
Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $100,000,000, on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each
as defined on the reverse hereof) (each such Stated Maturity Date, Redemption
Date or Repayment Date being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specific above, until the principal
hereof is paid or duly made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal, premium and/or interest,
including any overdue sinking fund or redemption payment. The Operating
Partnership will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified above,
and on the Maturity Date; provided, however, that if the Original Issue Date
occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the holder of this Note
on the Record Date with respect to such second Interest Payment Date. Interest
on this Note will be computed on the basis of a 360-day year of twelve 30-day
months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no interest
has been paid or duly provided for) to, but excluding, the applicable Interest
Payment Date or the Maturity Date, as the case may be (each, an "Interest
Period"). The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions described
herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); provided, however,
that interest payable on the Maturity Date will be payable to the person to
whom the principal hereto and premium, if any, hereon shall be payable. Any
such interest not so punctually paid or duly provided for ("Defaulted
Interest") will forthwith cease to be payable to the holder on any Record Date,
and shall be paid to the person in
<PAGE> 3
-3-
whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not more than 15 days
and not less than 10 days prior to such Special Record Date or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which this Note may be listed, and upon such notice
as may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at
the office or agency maintained by the Operating Partnership for that purpose
in the Borough of Manhattan, The City of New York, currently the office of the
Trustee located at 100 Wall Street, New York, New York 10005, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the
Operating Partnership may determine; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment
is to be made in the Specified Currency in accordance with the provisions set
forth below, such payment may be made by wire transfer of immediately available
funds to an account with a bank designated by the holder hereof at least 15
calendar days prior to the Maturity Date, provided that such bank has
appropriate facilities therefor and that this Note (and, if applicable, a duly
completed repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Operating Partnership in time
for the Trustee to make such payment in such funds in accordance with its
normal procedures. Payment of interest due on any Interest Payment Date other
than the Maturity Date will be made at the aforementioned office or agency
maintained by the Operating Partnership or, at the option of the Operating
Partnership, by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained by the Trustee;
provided, however, that a holder of U.S.$10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and provisions) will be entitled to
receive interest payments on any Interest Payment Date other than the Maturity
Date by wire transfer of immedi-
<PAGE> 4
-4-
ately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to
such Interest Payment Date. Any such wire transfer instructions received by
the Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in
The City of New York; provided, however, that if the Specified Currency is
other than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order
to close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, if the Specified Currency is European
Currency Units ("ECU"), such day is not a day that appears as an ECU
no-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association),
or, if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market). Principal Financial Center means the capital
city of the country issuing the Specified Currency, except that with respect to
United States dollars, Australian dollars, Deutsche marks, Dutch guilders,
Italian lire, Swiss francs and ECU, the Principal Financial Center shall be The
City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Operating Partnership is obligated to make payments of principal,
premium, if any, and interest in respect of this Note in the Specified Currency
(or, if the Specified Currency is not at the time of such payment legal tender
for the payment of public and private debts, in such other coin or currency of
the country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency is
other than United States dollars, except as provided below, any such amounts
<PAGE> 5
-5-
so payable by the Operating Partnership will be converted by the Exchange Rate
Agent specified above into United States dollars for payment to the holder of
this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election to
receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency, any
United States dollar amount to be received by the holder of this Note will be
based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Operating
Partnership for the purchase by the quoting dealer of the Specified Currency
for United States dollars for settlement on such payment date in the aggregate
amount of such Specified Currency payable to all holders of Foreign Currency
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be
made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust Office in The City of New York on or prior
to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. Such written request may be mailed or hand
delivered or sent by cable, telex or other form of facsimile transmission. The
holder of this Note may elect to receive all or a specified portion of all
future payments in the Specified Currency in respect of such principal,
premium, if any, and/or interest and need not file a separate election for each
payment. Such election will remain in effect until revoked by written notice
to the Trustee, but written notice of any such revocation must be received by
the Trustee on or prior to the applicable Record Date or at least 15 calendar
days prior to the Maturity Date, as the case may be.
<PAGE> 6
-6-
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the Operating
Partnership, the Operating Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market
Exchange Rate" for the Specified Currency means the noon dollar buying rate in
The City of New York for cable transfers for such Specified Currency as
certified for customs purposes by (or if not so certified, as otherwise
determined by) the Federal Reserve Bank of New York. Any payment made under
such circumstances in United States dollars will not constitute an Event of
Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite currency
is unavailable due to the imposition of exchange controls or other
circumstances beyond the reasonable control of the Operating Partnership, then
the Operating Partnership will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shal1 be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified on the face hereof.
<PAGE> 7
-7-
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in
such single currency equal to the sum of the amounts of the consolidated
Component Currencies expressed in such single currency. If any Component
Currency is divided into two or more currencies, the amount of the original
Component Currency shall be replaced by the amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof, in
the Addendum hereto, which further provisions shall have the same force and
effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
<PAGE> 8
-8-
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Note to be
duly executed under its seal.
Dated: December 8, 1997 FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust,
Inc., its sole general partner
By /s/ Gary H. Heigl
--------------------------
Name: Gary H. Heigl
Title: Sr. V.P. Capital Markets
(SEAL)
Attest:
/s/ Mike Havala
- ------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
Dated: December 8, 1997 FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ H.H. Hall, Jr.
------------------------
Authorized Signatory
<PAGE> 9
REVERSE OF NOTE
FIRST INDUSTRIAL, L.P.
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Operating Partnership issued and to be issued under an
Indenture, dated as of May 13, 1997, as amended, modified or supplemented from
time to time (the "Indenture"), between the Operating Partnership and First
Trust National Association, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Operating Partnership, the Trustee and the holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Note is one of the series of Securities designated as
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes").
All terms used but not defined in this Note or in an Addendum hereto shall have
the meanings assigned to such terms in the Indenture or on the face hereof, as
the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof. This Note will
not be subject to any sinking fund and, unless otherwise specified on the face
hereof in accordance with the provisions of the following two paragraphs, will
not be redeemable or repayable prior to the Stated Maturity Date.
This Note will be subject to redemption at the option of the Operating
Partnership on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided that
any remaining principal amount hereof shall be at least U.S. $1,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face
<PAGE> 10
-10-
hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction,
if any, specified on the face hereof until the Redemption Price is 100% of the
unpaid principal amount to be redeemed. In the event of redemption of this
Note in part only, a new Note of like tenor for the unredeemed portion hereof
and otherwise having the same terms as this Note shall be issued in the name of
the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Operating Partnership at
the option of the holder hereof on the Optional Repayment Date(s), if any,
specified on the face hereof, in whole or in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the date
fixed for repayment (each, a "Repayment Date"). For this Note to be repaid,
the Trustee must receive at its office in the Borough of Manhattan, The City of
New York, referred to on the face hereof, at least 30 days but not more than 60
days prior to the Repayment Date (i) this Note and the form hereon entitled
"Option to Elect Repayment" duly completed or (ii) a telegram, telex, facsimile
transmission, or a letter from a member of a national securities exchange or
the National Association of Securities Dealers, Inc. or a commercial bank or
trust company in the United States setting forth the name of the holder hereof,
the principal amount of this Note, the principal amount of this Note to be
repaid, the certificate number or a description of the tenor and terms of this
Note, a statement that the option to elect repayment is being exercised
thereby, and a guarantee that this Note, together with the form hereon entitled
"Option to Elect Repayment" duly completed, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in
<PAGE> 11
-11-
the event of redemption, repayment or acceleration of maturity of this Note
will be equal to the sum of (i) the Issue Price specified on the face
hereof (increased by any accruals of the Discount, as defined below) and, in
the event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (ii) any unpaid interest on this Note accrued
from the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the
Issue Price and 100% of the principal amount of this Note is referred to herein
as the "Discount."
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year
convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial coupon rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding-period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture. The Indenture contains
provisions for defeasance of (i) the entire indebtedness of the Notes or (ii)
certain covenants and Events of Default with respect to the Notes, in each case
upon compliance with certain conditions set forth therein, which provisions
apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the holders of the Securities at any
time by the Operating Partnership and the
<PAGE> 12
-12-
Trustee with the consent of the holders of not less than a majority of the
aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, on behalf of the holders of all such
Securities, to waive compliance by the Operating Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit
the holders of not less than a majority of the aggregate principal amount of
the outstanding Securities of any series, in certain instances, to waive, on
behalf of all of the holders of Securities of such series, certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange heretofore or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Operating
Partnership, which is absolute and unconditional, to pay principal, premium, if
any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in the
Security Register of the Operating Partnership upon surrender of this Note for
registration of transfer at the office or agency of the Operating Partnership
in any place where the principal hereof and any premium or interest hereon are
payable, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Operating Partnership and the Security Registrar,
duly executed by, the holder hereof or by his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denominations but otherwise
having the same terms and conditions, as requested by the holder hereof
surrendering the same.
<PAGE> 13
-13-
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership
or the Trustee may treat the holder in whose name this Note is registered as
the owner thereof for all purposes, whether or not this Note be overdue, and
neither the Operating Partnership, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby have
been executed or entered into by the undersigned in his/her capacity as an
officer of the sole general partner of the Operating Partnership which has
been formed as a Delaware limited partnership, and not individually, and
neither the general partner, officers, employees or limited partners of the
Operating Partnership shall be bound or have any personal liability hereunder
or thereunder. The holder of this Note by accepting this Note waives and
releases all such liability. This waiver and release are part of the
consideration for the issue of this Note. Each party hereto shall look solely
to the assets of the Operating Partnership for satisfaction of any liability
of the Operating Partnership in respect of this Note and all documents,
agreements, understandings and arrangements relating to any transaction
contemplated hereby or thereby and will not seek recourse or commence any
action against any of the trustees, officers or shareholders of the Operating
Partnership or any of their personal assets for the performance or payment of
any obligation hereunder or thereunder. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
<PAGE> 14
-14-
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Note, shall be construed as though they were written out in full according to
applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
___________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), as-sign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________ ________________________________________
____________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
____________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:
______________________ ______________________________________
______________________________________
Notice: The signature(s) on this
Assignment must correspond with
the name(s) as written upon the
face of this Note in every particular,
without alteration or enlargement or
any change whatsoever.
<PAGE> 15
-15-
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Operating Partnership to repay this Note (or portion hereof specified below)
pursuant to its terms at a price equal to 100% of the principal amount to be
repaid, together with unpaid interest accrued hereon to the Repayment Date, to
the undersigned, at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office in the Borough of Manhattan, The City of New York, currently
located at 100 Wall Street, New York, New York 10005, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the
portion of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $ ----------------------------------
----------- Notice: The signature(s) on this
Date: Option to Elect Repayment must correspond
--------------------- with the name(s) as written upon the
face of this Note in every particular,
without alteration or enlargement or
any change whatsoever.
<PAGE> 1
EXHIBIT 4.22
UNSECURED REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1997
AMONG
FIRST INDUSTRIAL, L.P., AS BORROWER
FIRST INDUSTRIAL REALTY TRUST, INC., AS GENERAL PARTNER
AND
THE FIRST NATIONAL BANK OF CHICAGO,
UNION BANK OF SWITZERLAND, NEW YORK BRANCH
AND CERTAIN OTHER BANKS,
AS LENDERS
AND
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
AS DOCUMENTATION AGENT
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS ADMINISTRATIVE AGENT
AND
BANK OF MONTREAL,
AS CO-AGENT
<PAGE> 2
UNSECURED REVOLVING CREDIT AGREEMENT
THIS UNSECURED REVOLVING CREDIT AGREEMENT is entered into as of December
15, 1997, by and among the following:
FIRST INDUSTRIAL, L.P., a Delaware limited partnership having its
principal place of business at 311 South Wacker Drive, Suite 4000, Chicago,
Illinois 60606 ("Borrower"), the sole general partner of which is First
Industrial Realty Trust, Inc., a Maryland corporation;
FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland corporation that is
qualified as a real estate investment trust whose principal place of business
is 311 South Wacker Drive, Suite 4000, Chicago, Illinois 60606 ("General
Partner");
THE FIRST NATIONAL BANK OF CHICAGO ("First Chicago"), a national bank
organized under the laws of the United States of America having an office at
One First National Plaza, Chicago, Illinois 60670;
UNION BANK OF SWITZERLAND, NEW YORK BRANCH ("UBS"), the New York Branch
of a Swiss banking corporation, having an office at 299 Park Avenue, New York,
New York 10171;
UBS, as Documentation Agent ("Documentation Agent");
First Chicago, as Administrative Agent ("Administrative Agent") for the
Lenders (as defined below); and
Those Lenders identified on the signature pages hereto.
RECITALS
A. Borrower is primarily engaged in the business of acquiring,
developing, owning and operating bulk warehouse and light industrial
properties.
B. Borrower, the General Partner, the Documentation Agent, the
Administrative Agent and certain of the lenders are parties to the "Existing
Credit Agreement" (as defined below).
C. The Borrower has requested that the Existing Credit Agreement be
replaced to increase the maximum aggregate principal amount thereof to
$300,000,000 (the "Facility"), and that the Administrative Agent act as
administrative agent for the Lenders and that the
<PAGE> 3
Documentation Agent act as documentation agent for the Lenders. The
Administrative Agent, the Documentation Agent and the Lenders have agreed to do
so.
D. General Partner is fully liable for the obligations of Borrower
hereunder by virtue of its status as the sole general partner of Borrower and
as guarantor under the Guaranty.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
"Absolute Interest Period" means, with respect to a Competitive Bid Loan
made at an Absolute Rate, a period of up to 180 days as requested by Borrower
in a Competitive Bid Quote Request and confirmed by a Lender in a Competitive
Bid Quote but in no event extending beyond the Maturity Date. If an Absolute
Interest Period would end on a day which is not a Business Day, such Absolute
Interest Period shall end on the next succeeding Business Day.
"Absolute Rate" means a fixed rate of interest (rounded to the nearest
1/100 of 1%) for an Absolute Interest Period with respect to a Competitive Bid
Loan offered by a Lender and accepted by the Borrower at such rate under
Section 2.16.
"Adjusted Corporate Base Rate" means a floating interest rate equal to
the Corporate Base Rate plus CBR Applicable Margin changing when and as the
Corporate Base Rate and CBR Applicable Margin changes.
"Adjusted Corporate Base Rate Advance" means an Advance that bears
interest at the Adjusted Corporate Base Rate.
"Adjusted EBITDA" means for any Person the sum of EBITDA for such Person
and such Person's reported corporate overhead for itself and its Subsidiaries;
provided that "Adjusted EBITDA" shall not include overhead related to specific
properties.
"Adjusted LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the sum of (i) the quotient of (a) the Base
LIBOR Rate applicable to such LIBOR Interest Period, divided by (b) one minus
the Reserve Requirement (expressed as a decimal) applicable to such LIBOR
Interest Period, plus, in the case of ratable LIBOR
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<PAGE> 4
Advances, the LIBOR Applicable Margin in effect from time to time during such
LIBOR Interest Period, or in the case of LIBOR Advances made as Competitive Bid
Loans, the Competitive LIBOR Margin established in the Competitive Bid Quote
applicable to such Competitive Bid Loan.
"Administrative Agent" means First Chicago, acting as agent for the
Lenders in connection with the transactions contemplated by this Agreement, and
its successors in such capacity.
"Advance" means a Loan to the Borrower hereunder by one or more of the
Lenders pursuant to Section 2.1(a) hereof (including Swingline Loans and
Competitive Bid Loans), including the initial Advance and all subsequent
Advances, whether such Advances are from time to time, Adjusted Corporate Base
Rate Advances, LIBOR Advances, Swingline Loans or Competitive Bid Loans.
"Affiliate" means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any other Person.
A Person shall be deemed to control another Person if the controlling Person
owns ten percent (10%) or more of any class of voting securities of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means, as of any date, the sum of all of the
Lenders' then-current Commitments, which initially shall be $300,000,000,
subject to Borrower's right to reduce the Aggregate Commitment pursuant to
Section 2.17 and which shall otherwise only be increased with the consent of
all Lenders.
"Agreement" means this Amended and Restated Unsecured Revolving Credit
Agreement and all amendments, modifications and supplements hereto.
"Agreement Execution Date" shall mean December 15, 1997, the date on
which all of the parties hereto have executed this Agreement.
"Allocated Facility Amount" means, at any time, the sum of all then
outstanding Advances (including all Swingline Loans and Competitive Bid Loans),
and the then outstanding Facility Letter of Credit Obligations.
"Applicable Margin" means the applicable margins set forth in the table
in Section 2.6 used in calculating the interest rate applicable to the various
types of Advances, which shall vary from time to time in accordance with the
long term, senior unsecured debt ratings of Borrower and General Partner in the
manner set forth in Section 2.6.
"Arranger" means First Chicago Capital Markets, Inc. and UBS,
collectively.
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<PAGE> 5
"Base LIBOR Rate" means, with respect to a LIBOR Advance for the
relevant LIBOR Interest Period, the rate determined by the Administrative Agent
to be the rate at which deposits in immediately available funds in Dollars are
offered by the Administrative Agent to first-class banks in the London
interbank eurodollar market at approximately 11:00 a.m. London time two
Business Days prior to the first day of such LIBOR Interest Period, in the
approximate amount of the relevant LIBOR Advance and having a maturity
approximately equal to such LIBOR Interest Period.
"Borrower" means First Industrial, L.P., along with its permitted
successors and assigns.
"Borrowing Date" means a Business Day on which an Advance is made to the
Borrower.
"Borrowing Notice" is defined in Section 2.10(a) hereof.
"Business Day" means a day, other than a Saturday, Sunday or holiday, on
which banks are open for business in Chicago, Illinois and, where such term is
used in reference to the selection or determination of the Adjusted LIBOR Rate,
in London, England.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person which is not a corporation
and any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents" shall mean (i) short-term obligations of, or fully
guaranteed by, the United States of America, (ii) commercial paper rated A-1 or
better by Standard and Poor's Corporation or P-1 or better by Moody's Investors
Service, Inc., or (iii) certificates of deposit issued by and time deposits
with commercial banks (whether domestic or foreign) having capital and surplus
in excess of $100,000,000.
"CBR Applicable Margin" means, as of any date with respect to any
Adjusted Corporate Base Rate Advance, the Applicable Margin in effect for such
Adjusted Corporate Base Rate Advance as determined in accordance with Section
2.6 hereof.
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any replacement or successor statute, and the regulations promulgated
thereunder from time to time.
"Collateral Letter of Credit" means any irrevocable unconditional Letter
of Credit issued in the name of the Administrative Agent for the benefit of the
Lenders in form and substance satisfactory to the Administrative Agent and
drawn on a bank having a rating of at least AA by S&P and otherwise
satisfactory to the Administrative Agent.
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<PAGE> 6
"Commitment" means the obligation of each Lender, subject to the terms
and conditions of this Agreement and in reliance upon the representations and
warranties herein, to make Advances not exceeding in the aggregate the amount
set forth opposite its signature below, or the amount stated in any subsequent
amendment hereto.
"Competitive Bid Borrowing Notice" is defined in Section 2.16(f).
"Competitive Bid Lender" means a Lender which has a Competitive Bid Loan
outstanding.
"Competitive Bid Loan" is a Loan made pursuant to Section 2.16 hereof.
"Competitive Bid Note" means the promissory note payable to the order of
each Lender in the form attached hereto as Exhibit B-2 to be used to evidence
any Competitive Bid Loans which such Lender elects to make (collectively, the
"Competitive Bid Notes").
"Competitive Bid Quote" means a response submitted by a Lender to the
Administrative Agent with respect to a Competitive Bid Quote Request in the
form attached as Exhibit C-3.
"Competitive Bid Quote Request" means a written request from Borrower to
Administrative Agent in the form attached as Exhibit C-1.
"Competitive LIBOR Margin" means, with respect to any Competitive Bid
Loan for a LIBOR Interest Period, the percentage established in the applicable
Competitive Bid Quote which is to be used to determine the interest rate
applicable to such Competitive Bid Loan.
"Consolidated Operating Partnership" means the Borrower, the General
Partner and any other subsidiary partnerships or entities of either of them
which are required under GAAP to be consolidated with the Borrower and the
General Partner for financial reporting purposes.
"Consolidated Secured Debt" means as of any date of determination, the
sum of (a) the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date which is secured by
a Lien on any asset or Capital Stock of Consolidated Operating Partnership,
including without limitation loans secured by mortgages, stock, or partnership
interests, but excluding Defeased REMIC Debt, and the Senior Preferred Stock so
long as the PS Guaranty is outstanding and (b) the amount by which the
aggregate principal amount of all Indebtedness of the Subsidiaries of the
Borrower or General Partner outstanding at such date exceeds $5,000,000,
without duplication of any Indebtedness included under clause (a).
"Consolidated Senior Unsecured Debt" means as of any date of
determination, the aggregate principal amount of all Indebtedness of the
Consolidated Operating Partnership outstanding at such date other than (a)
Indebtedness which is contractually subordinated to the
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<PAGE> 7
Indebtedness of the Consolidated Operating Partnership under the Loan Documents
on terms acceptable to the Administrative Agent and (b) that portion of
Consolidated Secured Debt described in clause (a) of that definition.
"Consolidated Total Indebtedness" means as of any date of determination,
all Indebtedness of the Consolidated Operating Partnership outstanding at such
date, determined on a consolidated basis in accordance with GAAP, after
eliminating intercompany items; provided that for purposes of defining
"Consolidated Total Indebtedness" the term "Indebtedness" shall not include the
short term debt (e.g. accounts payable, short term expenses) of Borrower or
General Partner or Defeased REMIC Debt.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with all or any of the entities in the
Consolidated Operating Partnership, are treated as a single employer under
Sections 414(b) or 414(c) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time, changing when
and as such corporate base rate changes.
"Debt Service" means for any period, (a) Interest Expense for such
period plus (b) the aggregate amount of regularly scheduled principal payments
of Indebtedness (excluding optional prepayments and balloon principal payments
due on maturity in respect of any Indebtedness) required to be made during such
period by the Borrower, or any of its consolidated Subsidiaries plus (c) a
percentage of all such regularly scheduled principal payments required to be
made during such period by any Investment Affiliate on Indebtedness (excluding
optional prepayments and balloon principal payments due on maturity in respect
of any Indebtedness) taken into account in calculating Interest Expense, equal
to the greater of (x) the percentage of the principal amount of such
Indebtedness for which the Borrower or any consolidated Subsidiary is liable
and (y) the percentage ownership interest in such Investment Affiliate held by
the Borrower and any consolidated Subsidiaries, in the aggregate, without
duplication plus (d) Senior Preferred Stock Expense of the General Partner for
such period.
"Default" means an event which, with notice or lapse of time or both,
would become an Event of Default.
"Default Rate" means with respect to any Advance, a rate equal to the
interest rate applicable to such Advance plus three percent (3%) per annum.
"Defaulting Lender" means any Lender which fails or refuses to perform
its obligations under this Agreement within the time period specified for
performance of such obligation, or, if no time frame is specified, if such
failure or refusal continues for a period of five Business
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<PAGE> 8
Days after written notice from the Administrative Agent; provided that if such
Lender cures such failure or refusal, such Lender shall cease to be a
Defaulting Lender.
"Defeased REMIC Debt" means the REMIC Loan, which Borrower has taken
steps to defease by depositing collateral in the form of obligations supported
by the credit of the United States government in the full amount required under
the terms of the REMIC Loan.
"Designated Lender" means any Person who has been designated by a Lender
to fund Competitive Bid Loans pursuant to a Designation Agreement in the form
attached hereto as Exhibit K.
"Dollars" and "$" mean United States Dollars.
"Duff & Phelps" means Duff & Phelps Credit Rating Company.
"EBITDA" means, with respect to any Person, income before extraordinary
items and after adjustment for any gains or losses from sales of assets
(reduced to eliminate any income from Investment Affiliates of such Person, any
interest income and, with respect to the Consolidated Operating Partnership,
any income from the assets used for Defeased REMIC Debt), as reported by such
Person and its Subsidiaries on a consolidated basis in accordance with GAAP,
plus Interest Expense, depreciation, amortization and income tax (if any)
expense plus a percentage of such income (adjusted as described above) of any
such Investment Affiliate equal to the allocable economic interest in such
Investment Affiliate held by such Person and any Subsidiaries, in the aggregate
(provided that no item of income or expense shall be included more than once in
such calculation even if it falls within more than one of the foregoing
categories).
"Effective Date" means each Borrowing Date and, if no Borrowing Date has
occurred in the preceding calendar month, the first Business Day of each
calendar month.
"Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority having jurisdiction over
the Borrower, its Subsidiaries or Investment Affiliates, or their respective
assets, and regulating or imposing liability or standards of conduct concerning
protection of human health or the environment, as now or may at any time
hereafter be in effect, in each case to the extent the foregoing are applicable
to the operations of the Borrower, any Investment Affiliate, or any Subsidiary
or any of their respective assets or Properties.
"Equity Value" is defined in Section 10.10 hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and regulations promulgated thereunder from time to time.
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<PAGE> 9
"Event of Default" means any event set forth in Article X hereof.
"Existing Credit Agreement" means that certain Unsecured Revolving
Credit Agreement dated as of December 16, 1996 as amended by that certain First
Amendment to the Unsecured Revolving Credit Agreement dated as of March 3,
1997.
"Extension Notice" is defined in Section 2.2 hereof.
"Facility" means the unsecured revolving credit facility described in
Section 2.1.
"Facility Fee" and "Facility Fee Rate" are defined in Section 2.7(b).
"Facility Letter of Credit" means a Financial Letter of Credit or
Performance Letter of Credit issued hereunder.
"Facility Letter of Credit Fee" is defined in Section 3.8.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to Facility Letters of Credit, including the sum of (a)
the Reimbursement Obligations and (b) the aggregate undrawn face amount of the
then outstanding Facility Letters of Credit.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations at approximately 10 a.m.
(Chicago time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FIMC" means First Industrial Mortgage Corporation, a Delaware
corporation, and the sole general partner of the Mortgage Partnership. FIMC is
a wholly-owned subsidiary of the General Partner.
"Financial Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank (i) to repay money borrowed by or advanced to or for the account
of the account party or (ii) to make any payment on account of any indebtedness
undertaken by the account party, in the event the account party fails to
fulfill its obligation to the beneficiary.
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<PAGE> 10
"Financing Partnership" means First Industrial Financing Partnership,
L.P., a Delaware limited partnership. Borrower and General Partner, either
directly or indirectly, collectively own 100% of the partnership interests of
the Financing Partnership.
"First Chicago" means The First National Bank of Chicago.
"FISC" means First Industrial Securities Corporation, a Delaware
corporation, and the sole general partner of the Guaranteeing Partnership.
FISC is a wholly-owned subsidiary of the General Partner.
"Fitch" means Fitch Investors Service, L.P.
"Funded Percentage" means, with respect to any Lender at any time, a
percentage equal to a fraction the numerator of which is the amount of the
Aggregate Commitment actually disbursed and outstanding to Borrower by such
Lender at such time, and the denominator of which is the total amount of the
Aggregate Commitment disbursed and outstanding to Borrower by all of the
Lenders at such time.
"Funds From Operations" for any period means GAAP net income, as
adjusted by (i) excluding gains and losses from property sales, debt
restructurings and property write-downs and adjusted for the non-cash effect of
straight-lining of rents, (ii) straight-lining various ordinary operating
expenses which are payable less frequently than monthly (e.g., real estate
taxes) and (iii) adding back depreciation, amortization and all non-cash items.
Annualized Funds From Operations for any Person will be calculated by
annualizing actual Funds From Operations for the most recently ended fiscal
quarter. In calculating Funds From Operations, no deduction shall be made from
net income for closing costs and other one-time charges associated with the
formation and capitalization of such Person.
"GAAP" means generally accepted accounting principles in the United
States of America consistent with those utilized in preparing the audited
financial statements of the Borrower required hereunder.
"General Partner" means First Industrial Realty Trust, Inc., a Maryland
corporation that is listed on the New York Stock Exchange and is qualified as a
real estate investment trust. General Partner is the sole general partner of
Borrower.
"Gross Revenues" means total revenues, calculated in accordance with
GAAP.
"Guarantee Obligation" means as to any Person (the "guaranteeing
person"), any obligation (determined without duplication) of (a) the
guaranteeing person or (b) another Person (including, without limitation, any
bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counter indemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness,
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<PAGE> 11
leases, dividends or other obligations (the "primary obligations") of any other
third Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the maximum stated
amount of the primary obligation relating to such Guarantee Obligation (or, if
less, the maximum stated liability set forth in the instrument embodying such
Guarantee Obligation), provided, that in the absence of any such stated amount
or stated liability, the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith.
"Guaranteeing Partnership" means First Industrial Securities L.P., a
Delaware limited partnership. FISC is the sole general partner of the
Guaranteeing Partnership and Borrower is the sole limited partner.
"Guaranty" means the Guaranty executed by the General Partner in the form
attached hereto as Exhibit D.
"Implied Capitalization Value" means for any Person for any quarter, the
sum of (i) the quotient of (x) the Adjusted EBITDA for such Person during such
quarter (which Adjusted EBITDA shall be annualized as described in the
definition of "Funds From Operations", but shall exclude any Adjusted EBITDA
attributable to Preleased Assets Under Development), and (y) the then most
recent "Average Residual Cap Rate for National Industrial Markets", as
published in the Korpacz Real Estate Investor Survey, plus (ii) an amount equal
to fifty percent (50%) of the value of all Preleased Assets Under Development,
provided that in no event shall the aggregate amount added to Implied
Capitalization Value pursuant to this clause (ii) exceed the lesser of (A) five
percent (5%) of the Implied Capitalization Value or (B) $100,000,000, plus
(iii) an amount equal to 100% of unrestricted cash and unrestricted cash
equivalents (specifically excluding any cash or cash equivalents being used to
support Defeased REMIC Debt), plus (iv) an amount equal to 100% of the
then-current book value, determined in accordance with GAAP, of all first
mortgage receivables on income producing commercial properties, provided that
in no event shall the aggregate amount added to Implied Capitalization Value
pursuant to this clause (iv) exceed ten percent (10%) of Implied Capitalization
Value. For purposes of computing the Implied Capitalization Value, (A)
Adjusted EBITDA may be increased from quarter to quarter by the amount of net
cash
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<PAGE> 12
flow from new leases of space at the Properties approved by Administrative
Agent (where such net cash flow has not then been included in EBITDA) which
have a minimum term of one year and (B) Properties which either (i) were
acquired during the quarter and/or (ii) were previously assets under
development under GAAP but which have been completed during the quarter and
have at least some tenants in possession of the respective leased spaces and
conducting business operations therein each will be included in the calculation
of Implied Capitalization Value using Pro Forma EBITDA for the quarter, so long
as a "new acquisition/opening summary" form is submitted to, and approved by,
Administrative Agent for each new acquisition or newly-opened Property during
such quarter. In no event shall the "Average Residual Cap Rate for Industrial
Markets" used to calculate the Implied Capitalization Value be less than 9% or
greater than 9.5%.
"Indebtedness" of any Person at any date means without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade liabilities and other accounts payable, and accrued expenses
incurred in the ordinary course of business and payable in accordance with
customary practices), to the extent such obligations constitute indebtedness
for the purposes of GAAP, (c) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (d) all obligations
of such Person under financing leases and capital leases, (e) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person, (f) all Guarantee Obligations of such Person (excluding in any
calculation of consolidated indebtedness of the Consolidated Operating
Partnership, Guarantee Obligations of any member of the Consolidated Operating
Partnership in respect of primary obligations of any other member of the
Consolidated Operating Partnership), (g) all reimbursement obligations of such
Person for letters of credit and other contingent liabilities, (h) all
liabilities secured by any Lien (other than Liens for taxes not yet due and
payable) on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (i) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(j) Senior Preferred Stock, and (k) such Person's pro rata share of debt in
Investment Affiliates and any loans where such Person is liable as a general
partner. The liquidation preference of the Senior Preferred Stock will be
considered as Indebtedness and Consolidated Total Indebtedness, provided,
however, that the obligations of the General Partner created by the issuance of
Senior Preferred Stock and the obligations of the Guaranteeing Partnership
created by the execution and delivery of the PS Guaranty shall be deemed to
constitute a single, combined liability on a consolidated basis.
"Insolvency" means insolvency as defined in the United States Bankruptcy
Code, as amended. "Insolvent" when used with respect to a Person, shall refer
to a Person who satisfies the definition of Insolvency.
"Interest Expense" means all interest expense of the Consolidated
Operating Partnership determined in accordance with GAAP plus (i) capitalized
interest not covered by an interest
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reserve from a loan facility, plus (ii) the allocable portion (based on
liability) of any accrued or paid interest incurred on any obligation for which
the Consolidated Operating Partnership is wholly or partially liable under
repayment, interest carry, or performance guarantees, or other relevant
liabilities, plus (iii) the allocable percentage of any accrued or paid
interest incurred on any Indebtedness of any Investment Affiliate, whether
recourse or non-recourse, equal to the applicable economic interest in such
Investment Affiliate held by the Consolidated Operating Partnership, in the
aggregate, provided that no expense shall be included more than once in such
calculation even if it falls within more than one of the foregoing categories;
provided, however, that "Interest Expense" shall not include (i) those costs
and fees which have been capitalized and are payable by Borrower and/or the
Financing Partnership by reason of the purchase of a $300,000,000 interest rate
cap/swap from Union Bank of Switzerland in connection with the REMIC Loan or
(ii) dividends paid on Senior Preferred Stock or payments made pursuant to the
PS Guaranty or (iii) interest on the REMIC Loan after it became Defeased REMIC
Debt.
"Interest Period" means either an Absolute Interest Period or a LIBOR
Interest Period.
"Investment Affiliate" means any Person in which the Consolidated
Operating Partnership, directly or indirectly, has an ownership interest, whose
financial results are not consolidated under GAAP with the financial results of
the Consolidated Operating Partnership on the consolidated financial statements
of the Consolidated Operating Partnership.
"Invitation for Competitive Bid Quotes" means a written notice to the
Lenders from the Administrative Agent with respect to a Competitive Bid Quote
Request in the form attached as Exhibit C-2 hereto.
"Issuance Date" is defined in Section 3.4(a)(3).
"Issuance Notice" is defined in Section 3.4(c).
"Issuing Bank" means, with respect to each Facility Letter of Credit,
the Lender which issues such Facility Letter of Credit. First Chicago shall be
the sole Issuing Bank.
"Lenders" means, collectively, First Chicago, UBS and the other Persons
executing this Agreement in such capacity, or any Person which subsequently
executes and delivers any amendment hereto in such capacity and each of their
respective permitted successors and assigns. Where reference is made to "the
Lenders" in any Loan Document it shall be read to mean "all of the Lenders".
"Lending Installation" means any U.S. office of any Lender authorized to
make loans similar to the Advances described herein.
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<PAGE> 14
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 3.9.
"Letter of Credit Request" is defined in Section 3.4(a).
"LIBOR Advance" means an Advance that bears interest at the Adjusted
LIBOR Rate, whether a ratable Advance based on the LIBOR Applicable Margin or a
Competitive Bid Loan based on a Competitive LIBOR Margin.
"LIBOR Applicable Margin" means, as of any date with respect to any
LIBOR Advance, the Applicable Margin in effect for such LIBOR Advance as
determined in accordance with Section 2.6 hereof.
"LIBOR Interest Period" means, with respect to a LIBOR Advance, a period
of one, two, three or six months (to the extent that periods in excess of three
months are generally available from the Lenders), as selected in advance by the
Borrower.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any filing or
agreement to file a financing statement as debtor under the Uniform Commercial
Code on any property leased to any Person under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
agreement in favor of another Person).
"Loan" means, with respect to a Lender, such Lender's portion of any
Advance.
"Loan Documents" means this Agreement, the Notes, the Guaranty and any
and all other agreements or instruments required and/or provided to Lenders
hereunder or thereunder, as any of the foregoing may be amended from time to
time.
"Majority Lenders" means Lenders in the aggregate having in excess of
50% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding in excess of 50% of the aggregate
unpaid principal amount of the outstanding Advances.
"Margin Stock" has the meaning ascribed to it in Regulation U of the
Board of Governors of the Federal Reserve System.
"Market Value Net Worth" means at any time, the Implied Capitalization
Value of a Person at such time minus the Indebtedness of such Person at such
time.
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<PAGE> 15
"Material Adverse Effect" means, with respect to any matter, that such
matter in the Supermajority Lenders' good faith judgment may (x) materially and
adversely affect the business, properties, condition or results of operations
of the Consolidated Operating Partnership taken as a whole, or (y) constitute a
non-frivolous challenge to the validity or enforceability of any material
provision of any Loan Document against any obligor party thereto.
"Material Adverse Financial Change" shall be deemed to have occurred if
the Supermajority Lenders, in their good faith judgment, determine that a
material adverse financial change has occurred which could prevent timely
repayment of any Advance hereunder or materially impair Borrower's ability to
perform its obligations under any of the Loan Documents.
"Materials of Environmental Concern" means any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, radon, polychlorinated biphenyls and urea-formaldehyde insulation.
"Maturity Date" means April 30, 2001, subject to extension pursuant to
the terms and conditions of Section 2.2 hereof or such earlier date on which
the principal balance of the Facility and all other sums due in connection with
the Facility shall be due as a result of the acceleration of the Facility.
"Monetary Default" means any Default involving Borrower's failure to pay
any of the Obligations when due.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Mortgage Partnership" means First Industrial Mortgage L.P., a Delaware
limited partnership. FIMC is the sole general partner of the Mortgage
Partnership and Borrower is the sole limited partner.
"Note" means the promissory note payable to the order of each Lender in
the amount of such Lender's maximum Commitment in the form attached hereto as
Exhibit B-1 (collectively, the "Notes").
"Obligations" means the Advances, the Facility Letter of Credit
Obligations and all accrued and unpaid fees and all other obligations of
Borrower to the Administrative Agent or any or all of the Lenders arising under
this Agreement or any of the other Loan Documents.
"Payment Date" means the last Business Day of each calendar quarter.
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<PAGE> 16
"Participants" is defined in Section 13.2.1 hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to each Lender, the applicable
percentage of the then-current Aggregate Commitment represented by such
Lender's then-current Commitment.
"Performance Letter of Credit" means any standby Letter of Credit which
represents an irrevocable obligation to the beneficiary on the part of the
Issuing Bank to make payment on account of any default by the account party in
the performance of a nonfinancial or commercial obligation.
"Permitted Liens" are defined in Section 9.6 hereof.
"Person" means an individual, a corporation, a limited or general
partnership, an association, a joint venture or any other entity or
organization, including a governmental or political subdivision or an agent or
instrumentality thereof.
"Plan" means an employee benefit plan as defined in Section 3(3) of
ERISA, whether or not terminated, as to which the Borrower or any member of the
Controlled Group may have any liability.
"Preleased Assets Under Development" means, as of any date of
determination, any Project which (i) is under construction and then treated as
an asset under development under GAAP, and (ii) has, as of such date, at least
fifty percent (50%) of its projected total rentable area leased at market rates
to third party tenants similar to those at Borrower's other properties, both
such land and improvements under construction to be valued for purposes of this
Agreement at then-current book value, as determined in accordance with GAAP;
provided, however, in no event shall Preleased Assets Under Development include
any Project for more than 270 days from the date such Project is initially so
designated under GAAP.
"Project" means any real estate asset owned by the Borrower or by any
Wholly-Owned Subsidiary and operated as a bulk warehouse or light industrial
property.
"Property" means each parcel of real property owned or operated by the
Borrower, any Subsidiary or Investment Affiliate.
"Property Operating Income" means, with respect to any Property, for any
period, earnings from rental operations (computed in accordance with GAAP but
without deduction for reserves) attributable to such Property plus
depreciation, amortization and interest expense with respect to such Property
for such period, and, if such period is less than a year, adjusted by straight
lining various ordinary operating expenses which are payable less frequently
than
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<PAGE> 17
once during every such period (e.g. real estate taxes and insurance). The
earnings from rental operations reported for the immediately preceding fiscal
quarter shall be adjusted to include pro forma earnings (as substantiated to
the satisfaction of the Administrative Agent) for an entire quarter for any
Property acquired or placed in service during such fiscal quarter and to
exclude earnings during such quarter from any property not owned as of the end
of the quarter.
"PS Guaranty" means the existing guaranty of Senior Preferred Stock by
the Guaranteeing Partnership.
"Purchasers" is defined in Section 13.3.1 hereof.
"Qualified Officer" means, with respect to any entity, the chief
financial officer, chief accounting officer or controller of such entity if it
is a corporation or of such entity's general partner if it is a partnership.
"Rate Option" means the Adjusted Corporate Base Rate, the Adjusted LIBOR
Rate or the Absolute Rate (only as applicable to Competitive Bid Loans). The
Rate Option in effect on any date shall always be the Adjusted Corporate Base
Rate unless the Borrower has properly selected the Adjusted LIBOR Rate pursuant
to Section 2.10 hereof or a Competitive Bid Loan pursuant to Section 2.16
hereof.
"Rating Period" means any period during the term of the Facility during
which the Borrower's or General Partner's long-term, senior unsecured debt has
been rated by at least two of S&P, Moody's, Fitch and Duff & Phelps and the
lower of the highest two ratings (at least one of which is from S&P or Moody's)
is at least BBB- (S&P) or Baa3 (Moody's) or an equivalent rating from Fitch or
Duff & Phelps.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating
to reserve requirements applicable to member banks of the Federal Reserve
System.
"Reimbursement Obligations" means at any time, the aggregate of the
Obligations of the Borrower to the Lenders, the Issuing Bank and the
Administrative Agent in respect of all unreimbursed payments or disbursements
made by the Lenders, the Issuing Bank and the Administrative Agent under or in
respect of the Facility Letters of Credit.
"REMIC Loan" means the $300,000,000 mortgage loan made by Nomura Asset
Capital Corporation ("REMIC Lender") to Financing Partnership pursuant to the
terms of a Loan Agreement dated as of June 30, 1994 ("REMIC Loan Agreement").
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such
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<PAGE> 18
events as to which the PBGC by regulation waived the requirement of Section
4043(a) of ERISA that it be notified within 30 days of the occurrence of such
event, provided that a failure to meet the minimum funding standard of Section
412 of the Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waivers in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Reserve Requirement" means, with respect to a LIBOR Interest Period,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on
Eurocurrency liabilities.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Second REMIC Loan" means the up to $42,600,000 mortgage loan made by
REMIC Lender to Mortgage Partnership pursuant to the terms of a Loan Agreement
dated as of December 29, 1995 (the "Second REMIC Loan Agreement") of which only
$40,200,000 was actually funded.
"Senior Preferred Stock" means for any Person, any preferred stock
issued by such Person which is not typical preferred stock but instead is both
(i) redeemable by the holders thereof on any fixed date or upon the occurrence
of any event and (ii) as to payment of dividends or amounts on liquidation,
either guaranteed by any direct or indirect subsidiary of such Person or
secured by any property of such Person or any direct or indirect subsidiary of
such Person.
"Senior Preferred Stock Expense" means for any period for any Person,
the aggregate dividend payments due to the holders of Senior Preferred Stock of
such Person, whether payable in cash or in kind, and whether or not actually
paid during such period.
"Supermajority Lenders" means, as of any date, those Lenders holding, in
the aggregate, more than two-thirds (2/3) of the then-current Aggregate
Commitment or, if the Aggregate Commitment has been terminated, Lenders
holding, in the aggregate, more than two-thirds (2/3) of the aggregate unpaid
principal amount of the outstanding Advances.
"Subsidiary" means as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person, and provided such corporation, partnership or other entity is
consolidated with such Person for financial reporting purposes under GAAP.
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<PAGE> 19
"Swingline Advances" means, as of any date, collectively, all Swingline
Loans then outstanding under this Facility.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding $20,000,000.
"Swingline Lender" shall mean First Chicago, in its capacity as a
Lender.
"Swingline Loan" means a Loan made by the Swingline Lender under the
special availability provisions described in Sections 2.15 hereof.
"Total Liabilities" means all Indebtedness plus all other GAAP
liabilities of the Borrower and its Subsidiaries.
"Transferee" is defined in Section 13.4 hereof.
"Unencumbered Asset" means any Project which as of any date of
determination, (a) is not subject to any Liens other than Permitted Liens set
forth in Sections 9.6(i) through 9.6(v), (b) is not subject to any agreement
(including any agreement governing Indebtedness incurred in order to finance or
refinance the acquisition of such asset) which prohibits or limits the ability
of the Borrower, or its Wholly-Owned Subsidiaries, as the case may be, to
create, incur, assume or suffer to exist any Lien upon any assets or Capital
Stock of the Borrower, or any of its Wholly-Owned Subsidiaries, (c) is not
subject to any agreement (including any agreement governing Indebtedness
incurred in order to finance or refinance the acquisition of such asset) which
entitles any Person to the benefit of any Lien (but not subject to any Liens
other than Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on any
assets or Capital Stock of the Borrower or any of its Wholly-Owned Subsidiaries
or would entitle any Person to the benefit of any Lien (but excluding the
Permitted Liens set forth in Sections 9.6(i) through 9.6(v) on such assets or
Capital Stock upon the occurrence of any contingency (including, without
limitation, pursuant to an "equal and ratable" clause), (d) is not the subject
of any material architectural/engineering issue, as evidenced by a
certification of Borrower, and (e) is materially compliant with the
representations and warranties in Article VI below. Notwithstanding the
foregoing, if any Project is a "Superfund" site under federal law or a site
identified in writing by the jurisdiction in which such Project is located as
having significant environmental contamination under applicable state law,
Borrower shall so advise the Lenders in writing and the Majority Lenders shall
have the right to request from Borrower a current detailed environmental
assessment (or one which is not more than two years old for Unencumbered Assets
owned as of the Agreement Execution Date), and, if applicable, a written
estimate of any remediation costs from a recognized environmental contractor
and to exclude any such Project from Unencumbered Assets at their election. No
Project of a Wholly-Owned Subsidiary shall be deemed to be unencumbered unless
both such Project and all Capital Stock of such Wholly-Owned Subsidiary is
unencumbered and neither such Wholly-Owned Subsidiary nor any other intervening
Wholly-Owned Subsidiary between the Borrower
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<PAGE> 20
and such Wholly-Owned Subsidiary has any Indebtedness for borrowed money (other
than Indebtedness due to the Borrower). The Borrower acknowledges that
Projects owned by the Guaranteeing Partnership will not constitute Unencumbered
Assets until the PS Guaranty is released.
"Unimproved Land" means land which constitutes a single tax parcel or
separately platted lot and on which construction of a bulk warehouse or light
industrial building has not commenced.
"Value of Unencumbered Assets" means, as of any date, the amount
determined by dividing the Property Operating Income for each Project which is
an Unencumbered Asset as of such date for a calculation period which shall be
either the immediately preceding full fiscal quarter or, if so requested by
Borrower or the Administrative Agent, the then current partial fiscal quarter
(as annualized) by the then-current "Average Residual Cap Rate for National
Industrial Markets" described in the definition of Implied Capitalization Value
(including the cap and floor on such rate described therein). If a Project has
been acquired during such calculation period then Borrower shall be entitled to
include pro forma Property Operating Income from such property for the entire
calculation period in the foregoing calculation, except for purposes of the
financial covenant comparing the Property Operating Income from Unencumbered
Assets during a quarter to Debt Service for such quarter. If a Project is no
longer owned as of the date of calculation, then no value shall be included
based on capitalizing Property Operating Income from such Project, except for
purposes of such financial covenant comparing the Property Operating Income
from Unencumbered Assets during a quarter to Debt Service for such quarter.
"Wholly-Owned Subsidiary" means a member of the Consolidated Operating
Partnership 100% of the ownership interests in which are owned, directly or
indirectly, by the Borrower and the General Partner in the aggregate.
The foregoing definitions shall be equally applicable to both the
singular and the plural forms of the defined terms.
1.2 Financial Standards. All financial computations required of a
Person under this Agreement shall be made, and all financial information
required under this Agreement shall be prepared, in accordance with GAAP,
except that if any Person's financial statements are not audited, such Person's
financial statements shall be prepared in accordance with the same sound
accounting principles utilized in connection with the financial information
submitted to Lenders with respect to the Borrower or the General Partner or the
Properties in connection with this Agreement and shall be certified by an
authorized representative of such Person.
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<PAGE> 21
ARTICLE II
THE FACILITY
2.1 The Facility.
(a) Subject to the terms and conditions of this Agreement
and in reliance upon the representations and warranties of Borrower and General
Partner contained herein, Lenders agree, severally and not jointly, to make
Advances through the Administrative Agent to Borrower from time to time prior
to the Maturity Date, provided that the making of any such Advance will not
cause the then Allocated Facility Amount to exceed the then-current Aggregate
Commitment. The Advances may be ratable Adjusted Corporate Base Rate Advances,
ratable LIBOR Advances, non-pro rata Swingline Loans or non-pro rata
Competitive Bid Loans. Except as provided in Sections 2.15 and 2.16 hereof,
each Lender shall fund its Percentage of each such Advance and no Lender will
be required to fund any amounts which when aggregated with such Lender's
Percentage of (i) all other Advances (other than Competitive Bid Loans) then
outstanding, (ii) all Swingline Advances and (iii) all Facility Letter of
Credit Obligations would exceed such Lender's then-current Commitment. This
facility ("Facility") is a revolving credit facility and, subject to the
provisions of this Agreement, Borrower may request Advances hereunder, repay
such Advances and reborrow Advances at any time prior to the Maturity Date.
(b) The Facility created by this Agreement, and that
Commitment of each Lender to lend hereunder, shall terminate on the Maturity
Date, unless sooner terminated in accordance with the terms of this Agreement.
(c) In no event shall the Aggregate Commitment exceed Three
Hundred Million Dollars ($300,000,000).
2.2 Principal Payments and Extension Option. Any outstanding
Advances (other than Competitive Bid Loans) and all other unpaid Obligations
shall be paid in full by the Borrower on the Maturity Date. Each Competitive
Bid Loan shall be paid in full on the last day of the applicable Interest
Period as described in Section 2.16 below. The Maturity Date can be extended
for extension periods of one year each upon notice to the Administrative Agent
not later than April 30, 1999 with respect to the first such extension of the
Maturity Date and not later than each April 30 thereafter for each subsequent
extension of the Maturity Date (each an "Extension Notice"), if (i) no Default
has occurred and is continuing at the time of such notice and at the time of
the then applicable Maturity Date, (ii) all of the Lenders agree to such
extension, (iii) all prior extensions have been elected by the Borrower and
accepted by the Lenders, and (iv) the Borrower pays, on the first business day
of such extension period, an extension fee to the Administrative Agent for the
account of each Lender equal to 0.05% of the then-current Commitment of such
Lender. If the Borrower gives an Extension Notice to the Administrative Agent,
the Administrative Agent shall notify the Lenders within 10 days of
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receipt of such request. The Lenders shall have 30 days after receipt by each
such Lender of an Extension Notice to notify Administrative Agent as to whether
they accept or reject such extension request and Administrative Agent shall
notify Borrower and the Lenders promptly thereafter of the acceptance or
rejection of the Lenders of Borrower's request to extend the Maturity Date. If
the foregoing conditions are satisfied other than the condition requiring the
consent of all Lenders, then Borrower shall have the right to replace any
Lender that does not agree to the extension provided that Borrower notifies
such Lender that it has elected to replace such Lender and notifies such Lender
and the Administrative Agent of the identity of the proposed replacement Lender
no later than the date six (6) months after the date of the applicable
Extension Notice. The Lender being replaced shall assign its Percentage of the
Aggregate Commitment and its rights and obligations under this Facility to the
replacement Lender in accordance with the requirements of Section 13.3 hereof
and the replacement Lender shall assume such Percentage of the Aggregate
Commitment and the related obligations under this Facility prior to the
Maturity Date to be extended, all pursuant to an assignment and assumption
agreement substantially in the form of Exhibit J hereto. The purchase by the
replacement Lender shall be at par (plus all accrued and unpaid interest and
any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
2.3 Requests for Advances; Responsibility for Advances. Ratable
Advances shall be made available to Borrower by Administrative Agent in
accordance with Section 2.1(a) and Section 2.10(a) hereof. The obligation of
each Lender to fund its Percentage of each ratable Advance shall be several and
not joint.
2.4 Evidence of Credit Extensions. The Advances of each Lender
outstanding at any time (other than Competitive Bid Loans) shall be evidenced
by the Notes. Each Note executed by the Borrower shall be in a maximum
principal amount equal to each Lender's Percentage of the current Aggregate
Commitment. Each Lender shall record Advances and principal payments thereof
on the schedule attached to its Note or, at its option, in its records, and
each Lender's record thereof shall be conclusive absent Borrower furnishing to
such Lender conclusive and irrefutable evidence of an error made by such Lender
with respect to that Lender's records. Notwithstanding the foregoing, the
failure to make, or an error in making, a notation with respect to any Advance
shall not limit or otherwise affect the obligations of Borrower hereunder or
under the Notes to pay the amount actually owed by Borrower to Lenders.
2.5 Ratable and Non-Pro Rata Loans. Each Advance hereunder shall
consist of Loans made from the several Lenders ratably in proportion to their
Percentages, except for Swingline Loans which shall be made by the Swingline
Lender in accordance with Section 2.15 and Competitive Bid Loans which may be
made on a non-pro rata basis by one or more of the Lenders in accordance with
Section 2.16. The ratable Advances may be Adjusted Corporate Base Rate
Advances, LIBOR Advances or a combination thereof, selected by the Borrower in
accordance with Sections 2.9 and 2.10.
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<PAGE> 23
2.6 Applicable Margins. The CBR Applicable Margin and the LIBOR
Applicable Margin to be used in calculating the interest rate applicable to
different types of Advances shall vary from time to time in accordance with the
ratings for Borrower's or General Partner's long-term, senior unsecured debt as
follows:
Rating Period:
<TABLE>
<CAPTION>
LIBOR CBR
Rating Level of Lower of Applicable Applicable
Two Highest Ratings* Margin Facility Fee Margin
<S> <C> <C> <C>
A-/A3 0.65% 0.15% 0
BBB+/Baa1 0.70% 0.20% 0
BBB/Baa2 0.80% 0.20% 0
BBB-/Baa3 0.95% 0.25% 0
Below BBB- or Baa3 1.25% 0.25% 0.25%
</TABLE>
* The letter categories used above are established by reference to S&P and
Moody's categories, respectively. At least one of S&P or Moody's ratings
must always be included in the two ratings used.
All margins and fees change as and when the applicable rating level
changes. In the event an agency issues different ratings for the Borrower and
the General Partner, then the higher rating of the two entities shall be deemed
to be the rating from such agency.
2.7 Other Fees.
(a) The Borrower shall pay the fee due to the Administrative
Agent in connection with Competitive Bid Loans as described in Section 2.16. The
Borrower agrees to pay all other fees payable to the Administrative Agent and
First Chicago Capital Markets, Inc. pursuant to the Borrower's prior letter
agreements with them.
(b) The Borrower shall pay a fee ("Facility Fee") to the
Administrative Agent for the account of the Lenders equal to the applicable
Facility Fee Rate in effect from time to time, as shown in Section 2.6 hereof,
times the then Aggregate Commitment, to be shared among the Lenders based on
their respective Percentages. The Facility Fee shall be paid quarterly in
arrears.
2.8 Minimum Amount of Each Advance. Each LIBOR Advance shall be in
the minimum amount of $2,000,000 (and in multiples of $100,000 if in excess
thereof), and each
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<PAGE> 24
Adjusted Corporate Base Rate Advance shall be in the minimum amount of
$1,000,000 (and in multiples of $100,000 if in excess thereof), provided,
however, that any Adjusted Corporate Base Rate Advance may be in the amount of
the unused Aggregate Commitment.
2.9 Interest.
(a) The outstanding principal balance under the Notes shall bear
interest from time to time at a rate per annum equal to:
(i) the Adjusted Corporate Base Rate; or
(ii) at the election of Borrower with respect to all or
portions of the Obligations, the Adjusted LIBOR Rate.
(b) All interest shall be calculated for actual days elapsed on
the basis of a 360-day year. Interest accrued on each Advance shall be payable
in arrears from time to time while such Advance is outstanding on each of (i)
the first day of each calendar month, commencing with the first such date to
occur after the date hereof, (ii) the last day of the applicable LIBOR Interest
Period (if such Advance is a LIBOR Advance), and (iii) the Maturity Date.
Interest shall not be payable for the day of any payment on the amount paid if
payment is received by Administrative Agent prior to noon (Chicago time). If any
payment of principal or interest under the Notes shall become due on a day that
is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a payment of principal, such extension of time
shall be included in computing interest due in connection with such payment;
provided that for purposes of Section 10.1 hereof, any payments of principal
described in this sentence shall be considered to be "due" on such next
succeeding Business Day.
2.10 Selection of Rate Options and LIBOR Interest Periods.
(a) Borrower, from time to time, may select the Rate Option and,
in the case of each LIBOR Advance, the commencement date (which shall be a
Business Day) and the length of the LIBOR Interest Period applicable to each
LIBOR Advance. Borrower shall give Administrative Agent irrevocable notice (a
"Borrowing Notice" not later than 11:00 a.m. (Chicago time) (i) at least one
Business Day prior to an Adjusted Corporate Base Rate Advance, (ii) at least
three (3) Business Days prior to a ratable LIBOR Advance, and (iii) not later
than 11:00 a.m. (Chicago time) on the Borrowing Date for each Swingline Loan,
specifying:
(i) the Borrowing Date, which shall be a Business
Day, of such Advance,
(ii) the aggregate amount of such Advance,
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(iii) the type of Advance selected, and
(iv) in the case of each LIBOR Advance, the LIBOR
Interest Period applicable thereto.
The Borrower shall also deliver together with each Borrowing Notice the
compliance certificate required in Section 5.2 and otherwise comply with the
conditions set forth in Section 5.2 for Advances. Administrative Agent shall
provide each Lender by facsimile with a copy of each Borrowing Notice and
compliance certificate on the same Business Day it is received.
Not later than noon (Chicago time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Chicago to the Administrative Agent. Administrative Agent will promptly make the
funds so received from the Lenders available to the Borrower.
(b) Administrative Agent shall, as soon as practicable after
receipt of a Borrowing Notice, determine the Adjusted LIBOR Rate applicable to
the requested ratable LIBOR Advance and inform Borrower and Lenders of the same.
Each determination of the Adjusted LIBOR Rate by Administrative Agent shall be
conclusive and binding upon Borrower in the absence of manifest error.
(c) If Borrower shall prepay a LIBOR Advance other than on the
last day of the LIBOR Interest Period applicable thereto, Borrower shall be
responsible to pay all amounts due to Lenders as required by Section 4.4 hereof.
The Lenders shall not be obligated to match fund their LIBOR Advances.
(d) As of the end of each LIBOR Interest Period selected for a
ratable LIBOR Advance, the interest rate on the LIBOR Advance will become the
Adjusted Corporate Base Rate, unless Borrower has once again selected a LIBOR
Interest Period in accordance with the timing and procedures set forth in
Section 2.10(g).
(e) The right of Borrower to select the Adjusted LIBOR Rate
for an Advance pursuant to this Agreement is subject to the availability to
Lenders of a similar option. If Administrative Agent determines that (i)
deposits of Dollars in an amount approximately equal to the LIBOR Advance for
which the Borrower wishes to select the Adjusted LIBOR Rate are not generally
available at such time in the London interbank eurodollar market, or (ii) the
rate at which the deposits described in subsection (i) herein are being offered
will not adequately and fairly reflect the costs to Lenders of maintaining an
Adjusted LIBOR Rate on an Advance or of funding the same in such market for such
LIBOR Interest Period, or (iii) reasonable means do not exist for determining an
Adjusted LIBOR Rate, or (iv) the Adjusted LIBOR Rate would be in excess of the
maximum interest rate which Borrower may by law pay, then in any of such events,
Administrative Agent shall so notify
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Borrower and Lenders and such Advance shall bear interest at the Adjusted
Corporate Base Rate.
(f) In no event may Borrower elect a LIBOR Interest Period
which would extend beyond the Maturity Date. Unless Lenders agree thereto, in no
event may Borrower have more than ten (10) different LIBOR Interest Periods for
LIBOR Advances outstanding at any one time.
(g) Conversion and Continuation.
(i) Borrower may elect from time to time, subject
to the other provisions of this Section 2.10, to convert all
or any part of a ratable Advance into any other type of
Advance; provided that any conversion of a ratable LIBOR
Advance shall be made on, and only on, the last day of the
LIBOR Interest Period applicable thereto.
(ii) Adjusted Corporate Base Rate Advances shall
continue as Adjusted Corporate Rate Advances unless and until
such Adjusted Corporate Base Rate Advances are converted into
ratable LIBOR Advances pursuant to a Conversion/Continuation
Notice from Borrower in accordance with Section 2.10(g)(iv).
Ratable LIBOR Advances shall continue until the end of the
then applicable LIBOR Interest Period therefor, at which time
each such Advance shall be automatically converted into an
Adjusted Corporate Base Rate Advance unless the Borrower shall
have given the Administrative Agent a Conversion/Continuation
Notice in accordance with Section 2.10(g)(iv) requesting that,
at the end of such LIBOR Interest Period, such Advance either
continue as an Advance of such type for the same or another
LIBOR Interest Period.
(iii) Notwithstanding anything to the contrary
contained in Sections 2.10(g)(i) or (g)(ii), no Advance may be
converted into a LIBOR Advance or continued as a LIBOR Advance
(except with the consent of the Majority Lenders) when any
Monetary Default or Event of Default has occurred and is
continuing.
(iv) The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice")
of each conversion of an Advance or continuation of a LIBOR
Advance not later than 11:00 a.m. (Chicago time) on the
Business Day immediately preceding the date of the requested
conversion, in the case of a conversion into an Adjusted
Corporate Base Rate Advance, or 11:00 a.m. (Chicago time) at
least three (3) Business Days prior to the date of the
requested conversion or continuation, in the case of a
conversion into or continuation of a ratable LIBOR Advance,
specifying: (1) the requested
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date (which shall be a Business Day) of such conversion or
continuation; (2) the amount and type of the Advance to be
converted or continued; and (3) the amounts and type(s) of
Advance(s) into which such Advance is to be converted or
continued and, in the case of a conversion into or
continuation of a ratable LIBOR Advance, the duration of the
LIBOR Interest Period applicable thereto.
2.11 Method of Payment. All payments of the Obligations hereunder
shall be made, without set-off, deduction, or counterclaim, in immediately
available funds to Administrative Agent at Administrative Agent's address
specified herein, or at any other Lending Installation of Administrative Agent
specified in writing by Administrative Agent to Borrower, by noon (local time)
on the date when due and shall be applied ratably by Administrative Agent among
Lenders. Each payment delivered to Administrative Agent for the account of any
Lender shall be delivered promptly by Administrative Agent to such Lender in
the same type of funds that Administrative Agent received at its address
specified herein or at any Lending Installation specified in a notice received
by Administrative Agent from such Lender. Administrative Agent is hereby
authorized to charge the account of Borrower maintained with First
Chicago for each payment of principal, interest and fees as it becomes due
hereunder.
2.12 Default. Notwithstanding the foregoing, during the continuance
of a Monetary Default or an Event of Default, Borrower shall not have the right
to request a LIBOR Advance, request a Competitive Bid Loan, select a new LIBOR
Interest Period for an existing ratable LIBOR Advance or convert any Adjusted
Corporate Base Rate Advance to a ratable LIBOR Advance. During the continuance
of a Monetary Default or an Event of Default, at the election of the Majority
Lenders, by notice to Borrower, outstanding Advances shall bear interest at the
applicable Default Rates until such Monetary Default or Event of Default ceases
to exist or the Obligations are paid in full.
2.13 Lending Installations. Each Lender may book its Advances at
any Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Notes shall be deemed held by each Lender for
the benefit of such Lending Installation. Each Lender may, by written or telex
notice to the Administrative Agent and Borrower, designate a Lending
Installation through which Advances will be made by it and for whose account
payments are to be made.
2.14 Non-Receipt of Funds by Administrative Agent. Unless Borrower
or a Lender, as the case may be, notifies Administrative Agent prior to the
date on which it is scheduled to make payment to Administrative Agent of (i)
in the case of a Lender, an Advance, or (ii) in the case of Borrower, a payment
of principal, interest or fees to the Administrative Agent for the account of
the Lenders, that it does not intend to make such payment, Administrative
Agent may assume that such payment has been made. Administrative Agent may,
but shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption. If such Lender or
Borrower, as the case may be, has not in fact made
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such payment to Administrative Agent, the recipient of such payment shall, on
demand by Administrative Agent, repay to Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a rate per annum equal to (i) in the case of payment by a Lender, the Federal
Funds Effective Rate (as determined by Administrative Agent) for such day or
(ii) in the case of payment by Borrower, the interest rate applicable to the
relevant Advance.
2.15 Swingline Loans. In addition to the other options available
to Borrower hereunder, the Swingline Commitment shall be available for Swingline
Loans subject to the following terms and conditions. Swingline Loans shall be
made available for same day borrowings provided that notice is given in
accordance with Section 2.10 hereof. All Swingline Loans shall bear interest at
the Adjusted Corporate Base Rate and shall be deemed to be Adjusted Corporate
Base Rate Advances. In no event shall the Swingline Lender be required to fund a
Swingline Loan if it would increase the total aggregate outstanding Loans by
Swingline Lender hereunder plus its Percentage of Facility Letter of Credit
Obligations to an amount in excess of its Commitment. Upon request of the
Swingline Lender made to all the Lenders, each Lender irrevocably agrees to
purchase its Percentage of any Swingline Loan made by the Swingline Lender
regardless of whether the conditions for disbursement are satisfied at the time
of such purchase, including the existence of an Event of Default hereunder
provided no Lender shall be required to have total outstanding Loans (other than
Competitive Bid Loans) plus its Percentage of Facility Letters of Credit to be
in an amount greater than its Commitment. Such purchase shall take place on the
date of the request by Swingline Lender so long as such request is made by noon
(Chicago time), otherwise on the Business Day following such request. All
requests for purchase shall be in writing. From and after the date it is so
purchased, each such Swingline Loan shall, to the extent purchased, (i) be
treated as a Loan made by the purchasing Lenders and not by the selling Lender
for all purposes under this Agreement and the payment of the purchase price by a
Lender shall be deemed to be the making of a Loan by such Lender and shall
constitute outstanding principal under such Lender's Note, and (ii) shall no
longer be considered a Swingline Loan except that all interest accruing on or
attributable to such Swingline Loan for the period prior to the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the Swingline Lender and all such amounts accruing on or
attributable to such Loans for the period from and after the date of such
purchase shall be paid when due by the Borrower to the Administrative Agent for
the benefit of the purchasing Lenders. If prior to purchasing its Percentage of
a Swingline Loan one of the events described in Section 10.10 shall have
occurred and such event prevents the consummation of the purchase contemplated
by preceding provisions, each Lender will purchase an undivided participating
interest in the outstanding Swingline Loan in an amount equal to its Percentage
of such Swingline Loan. From and after the date of each Lender's purchase of its
participating interest in a Swingline Loan, if the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Lender
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Lender's
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participating interest was outstanding and funded); provided, however, that in
the event that such payment was received by the Swingline Lender and is required
to be returned to the Borrower, each Lender will return to the Swingline Lender
any portion thereof previously distributed by the Swingline Lender to it. If any
Lender fails to so purchase its Percentage of any Swingline Loan, such Lender
shall be deemed to be a Defaulting Lender hereunder. No Swingline Loan shall be
outstanding for more than five (5) days at a time and Swingline Loans shall not
be outstanding for more than a total of ten (10) days during any month.
2.16 Competitive Bid Loans.
(a) Competitive Bid Option. In addition to ratable Advances
pursuant to Section 2.5, but subject to the terms and conditions of this
Agreement (including, without limitation the limitation set forth in Section
2.1(a) as to the maximum Allocated Facility Amount), the Borrower may, as set
forth in this Section 2.16, but only during a Rating Period, request the
Lenders, prior to the Maturity Date, to make offers to make Competitive Bid
Loans to the Borrower. Each Lender may, but shall have no obligation to, make
such offers and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.16. Competitive Bid Loans
shall be evidenced by the Competitive Bid Notes.
(b) Competitive Bid Quote Request. When the Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.16, it shall
transmit to the Administrative Agent by telecopy a Competitive Bid Quote Request
substantially in the form of Exhibit C-1 hereto so as to be received no later
than (i) 10:00 a.m. (Chicago time) at least five Business Days prior to the
Borrowing Date proposed therein, in the case of a request for a Competitive
LIBOR Margin or (ii) 9:00 a.m. (Chicago time) at least one Business Day prior to
the Borrowing Date proposed therein, in the case of a request for an Absolute
Rate specifying:
(i) the proposed Borrowing Date for the
proposed Competitive Bid Loan,
(ii) the requested aggregate principal amount
of such Competitive Bid Loan,
(iii) whether the Competitive Bid Quotes
requested are to set forth a Competitive LIBOR Margin or an
Absolute Rate, or both, and
(iv) the LIBOR Interest Period, if a
Competitive LIBOR Margin is requested, or the Absolute
Interest Period, if an Absolute Rate is requested.
The Borrower may request offers to make Competitive Bid Loans for more than one
Interest Period (but not more than five Interest Periods) in a single
Competitive Bid Quote Request. No Competitive Bid Quote Request shall be given
within five Business Days (or such other
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number of days as the Borrower and the Administrative Agent may agree) of any
other Competitive Bid Quote Request. A Competitive Bid Quote Request that does
not conform substantially to the form of Exhibit C-1 hereto shall be rejected,
and the Administrative Agent shall promptly notify the Borrower of such
rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly and in any
event before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.16(b),
the Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit C-2
hereto, which shall constitute an invitation by the Borrower to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.16.
(d) Submission and Contents of Competitive Bid Quotes.
(i) Each Lender may, in its sole discretion,
submit a Competitive Bid Quote containing an offer or offers
to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must
comply with the requirements of this Section 2.16(d) and must
be submitted to the Administrative Agent by telex or telecopy
at its offices not later than (a) 2:00 p.m. (Chicago time) at
least four Business Days prior to the proposed Borrowing Date,
in the case of a request for a Competitive LIBOR Margin or (b)
9:00 a.m. (Chicago time) on the proposed Borrowing Date, in
the case of a request for an Absolute Rate (or, in either case
upon reasonable prior notice to the Lenders, such other time
and rate as the Borrower and the Administrative Agent may
agree); provided that Competitive Bid Quotes submitted by
First Chicago may only be submitted if the Administrative
Agent or First Chicago notifies the Borrower of the terms of
the Offer or Offers contained therein no later than 30 minutes
prior to the latest time at which the relevant Competitive Bid
Quotes must be submitted by the other Lenders. Subject to the
Borrower's compliance with all other conditions to
disbursement herein, any Competitive Bid Quote so made shall
be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the
Borrower.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit C-3 hereto and shall in any
case specify:
(a) the proposed Borrowing Date,
which shall be the same as that set forth in the
applicable Invitation for Competitive Bid Quotes,
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(b) the principal amount of the
Competitive Bid Loan for which each such offer is
being made, which principal amount (1) may be greater
than, less than or equal to the Commitment of the
quoting Lender, (2) must be at least $10,000,000 and
an integral multiple of $1,000,000, and (3) may not
exceed the principal amount of Competitive Bid Loans
for which offers are requested,
(c) as applicable, the Competitive
LIBOR Margin and Absolute Rate offered for each such
Competitive Bid Loan,
(d) the minimum amount, if any, of
the Competitive Bid Loan which may be accepted by the
Borrower, and
(e) the identity of the quoting
Lender, provided that such Competitive Bid Loan may
be funded by such Lender's Designated Lender as
provided in Section 2.16(j), regardless of whether
that is specified in the Competitive Bid Quote.
(iii) The Administrative Agent shall reject any
Competitive Bid Quote that:
(a) is not substantially in the form
of Exhibit C-3 hereto or does not specify all of the
information required by Section 2.16(d)(ii),
(b) contains qualifying, conditional
or similar language, other than any such language
contained in Exhibit C-3 hereto,
(c) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes, or
(d) arrives after the time set forth
in Section 2.16(d)(i).
If any Competitive Bid Quote shall be rejected pursuant to
this Section 2.16(d)(iii), then the Administrative Agent shall
notify the relevant Lender of such rejection as soon as
practical.
(e) Notice to Borrower. The Administrative Agent shall
promptly notify the Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.16(d) and (ii) of any
Competitive Bid Quote that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid Quote submitted by such Lender with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive
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Bid Quote shall be disregarded by the Administrative Agent unless such
subsequent Competitive Bid Quote specifically states that it is submitted solely
to correct a manifest error in such former Competitive Bid Quote. The
Administrative Agent's notice to the Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been received
for each Interest Period specified in the related Competitive Bid Quote Request
and the respective principal amounts and Competitive LIBOR Margins or Absolute
Rate, as the case may be, so offered.
(f) Acceptance and Notice by Borrower. Not later than (i) 6:00
p.m. (Chicago time) at least four Business Days prior to the proposed Borrowing
Date in the case of a request for a Competitive LIBOR Margin or (ii) 10:00 a.m.
(Chicago time) on the proposed Borrowing Date, in the case of a request for an
Absolute Rate (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Borrower and the Administrative Agent may
agree), the Borrower shall notify the Administrative Agent of its acceptance or
rejection of the offers so notified to it pursuant to Section 2.16(e); provided,
however, that the failure by the Borrower to give such notice to the
Administrative Agent shall be deemed to be a rejection of all such offers. In
the case of acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount of offers for each Interest Period that
are accepted. The Borrower may accept any Competitive Bid Quote in whole or in
part (subject to the terms of Section 2.16(d)(iii)); provided that:
(i) the aggregate principal amount of all
Competitive Bid Loans to be disbursed on a given Borrowing
Date may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request,
(ii) acceptance of offers may only be made on
the basis of ascending Competitive LIBOR Margins or Absolute
Rates, as the case may be, and
(iii) the Borrower may not accept any offer that
is described in Section 2.16(d)(iii) or that otherwise fails
to comply with the requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by
two or more Lenders with the same Competitive LIBOR Margins or Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which offers are accepted for the related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in such multiples, not greater than $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to the aggregate
principal amount of such offers provided, however, that no Lender shall be
allocated any Competitive Bid Loan which is less than the minimum amount which
such Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans
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shall be conclusive in the absence of manifest error. The Administrative Agent
shall promptly, but in any event on the same Business Day, notify each Lender of
its receipt of a Competitive Bid Borrowing Notice and the principal amounts of
the Competitive Bid Loans allocated to each participating Lender.
(h) Administration Fee. The Borrower hereby agrees to pay to
the Administrative Agent an administration fee of $2,500 per each Competitive
Bid Quote Request transmitted by the Borrower to the Administrative Agent
pursuant to Section 2.16(b). Such administration fee shall be payable monthly in
arrears on the first Business Day of each month and on the Maturity Date (or
such earlier date on which the Aggregate Commitment shall terminate or be
cancelled) for any period then ending for which such fee, if any, shall not
have been theretofore paid.
(i) Other Terms. Any Competitive Bid Loan shall not reduce the
Commitment of the Bid Lender making such Competitive Bid Loan (except as the
availability of other Advances is reduced by the increase in the Allocated
Facility Amount due to such Competitive Bid Loan) and each such Bid Lender shall
continue to be obligated to fund its full percentage of all pro rata Advances
under the Facility. In no event can the aggregate amount of all Competitive Bid
Loans at any time exceed the lesser of (i) 66.67% of the then Aggregate
Commitment, or (ii) Two Hundred Million Dollars ($200,000,000.00). Competitive
Bid Loans may not be continued and, if not repaid at the end of the Interest
Period applicable thereto, shall (subject to the conditions set forth in this
Agreement) be replaced by new Competitive Bid Loans made in accordance with this
Section 2.16 or by ratable Advances in accordance with Section 2.10.
(j) Designated Lenders. A Lender may designate its Designated
Lender to fund a Competitive Bid Loan on its behalf as described in Section
2.16(d)(ii)(e). Any Designated Lender which funds a Competitive Bid Loan shall
on and after the time of such funding become the obligee under such Competitive
Bid Loan and be entitled to receive payment thereof when due. No Lender shall be
relieved of its obligation to fund a Competitive Bid Loan, and no Designated
Lender shall assume such obligation, prior to the time such Competitive Bid Loan
is funded.
2.17 Voluntary Reduction of Aggregate Commitment Amount. Upon at
least five (5) days prior irrevocable written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent, Borrower
shall have the right, without premium or penalty, to terminate the Aggregate
Commitment in whole or in part provided that (a) Borrower may not reduce the
Aggregate Commitment below the Allocated Facility Amount at the time of such
requested reduction, and (b) any such partial termination shall be in the
minimum aggregate amount of Five Million Dollars (U.S. $5,000,000.00) or any
integral multiple of Five Million Dollars (U.S. $5,000,000.00) in excess
thereof. Any partial termination of the Aggregate Commitment shall be applied
pro rata to each Lender's Commitment.
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2.18 Application of Moneys Received. All moneys collected or
received by the Administrative Agent on account of the Facility
directly or indirectly, shall be applied in the following order of priority:
(i) to the payment of all reasonable costs
incurred in the collection of such moneys of which the
Administrative Agent shall have given notice to the Borrower;
(ii) to the reimbursement of any yield
protection due to any of the Lenders in accordance with
Section 4.1;
(iii) first to the payment of any fee due
pursuant to Section 3.8(b) in connection with the issuance of
a Facility Letter of Credit to the Issuing Bank until such fee
is paid in full, then next to the payment of the Facility Fee
and Facility Letter of Credit Fee to the Lenders, if then due,
in that order on a pro rata basis in accordance with the
respective amounts of such fees due to the Lenders and then
finally to the payment of all fees then due to the
Administrative Agent;
(iv) to payment of the full amount of interest
and principal on the Swingline Loans;
(v) first to interest until paid in full and
then to principal for all Lenders (other than Defaulting
Lenders) (i) as allocated by the Borrower (unless an Event of
Default exists) between Competitive Bid Loans and ratable
Advances (the amount allocated to ratable Advances to be
distributed in accordance with the Percentages of the Lenders)
or (ii) if an Event of Default exists, in accordance with the
respective Funded Percentages of the Lenders;
(vi) any other sums due to the Administrative
Agent or any Lender under any of the Loan Documents; and
(vii) to the payment of any sums due to each
Defaulting Lender as their respective Percentages appear
(provided that Administrative Agent shall have the right to
set-off against such sums any amounts due from such Defaulting
Lender).
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ARTICLE III
THE LETTER OF CREDIT SUBFACILITY
3.1 Obligation to Issue. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower and the General Partner herein set forth, the Issuing Bank hereby
agrees to issue for the account of Borrower, one or more Facility Letters of
Credit in accordance with this Article III, from time to time during the period
commencing on the Agreement Execution Date and ending on a date one Business Day
prior to the Maturity Date. The Issuing Bank has, as of the Agreement Execution
Date, issued four letters of credit under the Borrower's Existing Credit
Agreement in the face amounts of $979,687.50, $754,421, $329,000 and $308,621.06
which letters of credit shall be deemed Facility Letters of Credit hereunder.
3.2 Types and Amounts. The Issuing Bank shall not have any
obligation to:
(i) issue any Facility Letter of Credit if the
aggregate maximum amount then available for drawing under
Letters of Credit issued by such Issuing Bank, after giving
effect to the Facility Letter of Credit requested hereunder,
shall exceed any limit imposed by law or regulation upon such
Issuing Bank;
(ii) issue any Facility Letter of Credit if,
after giving effect thereto, either (1) the then applicable
Allocated Facility Amount would exceed the then current
Aggregate Commitment, or (2) the Facility Letter of Credit
Obligations would exceed $30,000,000;
(iii) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provision to extend such date, to a date which is after the
Business Day immediately preceding the Maturity Date; or
(iv) issue any Facility Letter of Credit having
an expiration date, or containing automatic extension
provisions to extend such date, to a date which is more than
twelve (12) months after the date of its issuance.
3.3 Conditions. In addition to being subject to the satisfaction
of the conditions contained in Article V hereof, the obligation of the Issuing
Bank to issue any Facility Letter of Credit is subject to the satisfaction in
full of the following conditions:
(i) the Borrower shall have delivered to the Issuing Bank at
such times and in such manner as the Issuing Bank may reasonably
prescribe such documents and materials as may be reasonably required
pursuant to the terms of the proposed Facility Letter of Credit (it
being understood that if any inconsistency exists between such
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documents and the Loan Documents, the terms of the Loan Documents shall
control) and the proposed Facility Letter of Credit shall be reasonably
satisfactory to the Issuing Bank as to form and content;
(ii) as of the date of issuance, no order, judgment or decree
of any court, arbitrator or governmental authority shall purport by its
terms to enjoin or restrain the Issuing Bank from issuing the requested
Facility Letter of Credit and no law, rule or regulation applicable to
the Issuing Bank and no request or directive (whether or not having the
force of law) from any governmental authority with jurisdiction over
the Issuing Bank shall prohibit or request that the Issuing Bank
refrain from the issuance of Letters of Credit generally or the
issuance of the requested Facility Letter of Credit in particular; and
(iii) there shall not exist any Default or Event of Default.
3.4 Procedure for Issuance of Facility Letters of Credit.
(a) Borrower shall give the Issuing Bank and the
Administrative Agent at least two (2) Business Days' prior written notice of any
requested issuance of a Facility Letter of Credit under this Agreement (a
"Letter of Credit Request"), a copy of which shall be sent immediately to all
Lenders (except that, in lieu of such written notice, the Borrower may give the
Issuing Bank and the Administrative Agent telephonic notice of such request if
confirmed in writing by delivery to the Issuing Bank and the Administrative
Agent (i) immediately (A) of a telecopy of the written notice required hereunder
which has been signed by an authorized officer, or (B) of a telex containing all
information required to be contained in such written notice and (ii) promptly
(but in no event later than the requested date of issuance) of the written
notice required hereunder containing the original signature of an authorized
officer); such notice shall be irrevocable and shall specify:
(1) whether the requested Facility Letter of Credit is, in
Borrower's belief, a Financial Letter of Credit or a
Performance Letter of Credit;
(2) the stated amount of the Facility Letter of Credit requested
(which stated amount shall not be less than $50,000);
(3) the effective date (which day shall be a Business Day) of
issuance of such requested Facility Letter of Credit (the
"Issuance Date");
(4) the date on which such requested Facility Letter of Credit is
to expire;
(5) the purpose for which such Facility Letter of Credit is to be
issued;
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(6) the Person for whose benefit the requested Facility Letter of
Credit is to be issued; and
(7) any special language required to be included in the Facility
Letter of Credit.
At the time such request is made, the Borrower shall also provide the
Administrative Agent and the Issuing Bank with a copy of the form of the
Facility Letter of Credit that the Borrower is requesting be issued. Such
notice, to be effective, must be received by such Issuing Bank and the
Administrative Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this Section 3.4(a).
(b) Subject to the terms and conditions of this Article III
and provided that the applicable conditions set forth in Article V hereof have
been satisfied, the Issuing Bank shall, on the Issuance Date, issue a Facility
Letter of Credit on behalf of the Borrower in accordance with the Letter of
Credit Request and the Issuing Bank's usual and customary business practices
unless the Issuing Bank has actually received (i) written notice from the
Borrower specifically revoking the Letter of Credit Request with respect to such
Facility Letter of Credit, (ii) written notice from a Lender, which complies
with the provisions of Section 3.6(a), or (iii) written or telephonic notice
from the Administrative Agent stating that the issuance of such Facility Letter
of Credit would violate Section 3.2.
(c) The Issuing Bank shall give the Administrative Agent (who
shall promptly notify Lenders) and the Borrower written or telex notice, or
telephonic notice confirmed promptly thereafter in writing, of the issuance of a
Facility Letter of Credit (the "Issuance Notice"), which shall indicate the
Issuing Bank's reasonable determination as to whether such Facility Letter of
Credit is a Financial Letter of Credit or a Performance Letter of Credit, which
determination shall be conclusive absent manifest error.
(d) The Issuing Bank shall not extend or amend any Facility
Letter of Credit unless the requirements of this Section 3.4 are met as though a
new Facility Letter of Credit was being requested and issued.
3.5 Reimbursement Obligations; Duties of Issuing Bank.
(a) The Issuing Bank shall promptly notify the Borrower and
the Administrative Agent (who shall promptly notify Lenders) of any draw under a
Facility Letter of Credit. Any such draw shall constitute an Advance of the
Facility in the amount of the Reimbursement Obligation with respect to such
Facility Letter of Credit and shall bear interest from the date of the relevant
drawing(s) under the pertinent Facility Letter of Credit at a rate selected by
Borrower in accordance with Section 2.10 hereof; provided that if a Monetary
Default or an Event of Default exists at the time of any such drawing(s), then
the Borrower shall reimburse the Issuing Bank for drawings under a Facility
Letter of Credit issued by the
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Issuing Bank no later than the next succeeding Business Day after the payment by
the Issuing Bank and until repaid such Reimbursement Obligation shall bear
interest at the Default Rate.
(b) Any action taken or omitted to be taken by the Issuing
Bank under or in connection with any Facility Letter of Credit, if taken or
omitted in the absence of willful misconduct or gross negligence, shall not put
the Issuing Bank under any resulting liability to any Lender or, provided that
such Issuing Bank has complied with the procedures specified in Section 3.4 and
such Lender has not given a notice contemplated by Section 3.6(a) that continues
in full force and effect, relieve that Lender of its obligations hereunder to
the Issuing Bank. In determining whether to pay under any Facility Letter of
Credit, the Issuing Bank shall have no obligation relative to the Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered in compliance, and that they appear to
comply on their face, with the requirements of such Letter of Credit.
3.6 Participation.
(a) Immediately upon issuance by the Issuing Bank of any
Facility Letter of Credit in accordance with the procedures set forth in Section
3.4, each Lender shall be deemed to have irrevocably and unconditionally
purchased and received from the Issuing Bank, without recourse, representation
or warranty, an undivided interest and participation equal to such Lender's
Percentage in such Facility Letter of Credit (including, without limitation, all
obligations of the Borrower with respect thereto) and all related rights
hereunder and under the Guaranty and other Loan Documents; provided that a
Letter of Credit issued by the Issuing Bank shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 3.6 if the Issuing Bank shall have
received written notice from any Lender on or before the Business Day prior to
the date of its issuance of such Letter of Credit that one or more of the
conditions contained in Section 5.2 is not then satisfied, and in the event the
Issuing Bank receives such a notice it shall have no further obligation to issue
any Facility Letter of Credit until such notice is withdrawn by that Lender or
the Issuing Bank receives a notice from the Administrative Agent that such
condition has been effectively waived in accordance with the provisions of this
Agreement. Each Lender's obligation to make further Loans to Borrower (other
than any payments such Lender is required to make under subparagraph (b) below)
or to purchase an interest from the Issuing Bank in any subsequent letters of
credit issued by the Issuing Bank on behalf of Borrower shall be reduced by such
Lender's Percentage of the undrawn portion of each Facility Letter of Credit
outstanding.
(b) In the event that the Issuing Bank makes any payment under
any Facility Letter of Credit and the Borrower shall not have repaid such amount
to the Issuing Bank pursuant to Section 3.7 hereof, the Issuing Bank shall
promptly notify the Administrative Agent, which shall promptly notify each
Lender of such failure, and each Lender shall promptly and unconditionally pay
to the Administrative Agent for the account of the Issuing Bank the amount of
such Lender's Percentage of the unreimbursed amount of such payment, and the
Administrative Agent shall promptly pay such amount to the Issuing Bank.
Lender's
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payments of its Percentage of such Reimbursement Obligation as aforesaid shall
be deemed to be a Loan by such Lender and shall constitute outstanding principal
under such Lender's Note. The failure of any Lender to make available to the
Administrative Agent for the account of the Issuing Bank its Percentage of the
unreimbursed amount of any such payment shall not relieve any other Lender of
its obligation hereunder to make available to the Administrative Agent for the
account of such Issuing Bank its Percentage of the unreimbursed amount of any
payment on the date such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make available to the
Administrative Agent its Percentage of the unreimbursed amount of any payment on
the date such payment is to be made. Any Lender which fails to make any payment
required pursuant to this Section 3.6(b) shall be deemed to be a Defaulting
Lender hereunder.
(c) Whenever the Issuing Bank receives a payment on account of
a Reimbursement Obligation, including any interest thereon, the Issuing Bank
shall promptly pay to the Administrative Agent and the Administrative Agent
shall promptly pay to each Lender which has funded its participating interest
therein, in immediately available funds, an amount equal to such Lender's
Percentage thereof.
(d) Upon the request of the Administrative Agent or any
Lender, the Issuing Bank shall furnish to such Administrative Agent or Lender
copies of any Facility Letter of Credit to which the Issuing Bank is party and
such other documentation as may reasonably be requested by the Administrative
Agent or Lender.
(e) The obligations of a Lender to make payments to the
Administrative Agent for the account of the Issuing Bank with respect to a
Facility Letter of Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, set-off, qualification or exception whatsoever
other than a failure of any such Issuing Bank to comply with the terms of this
Agreement relating to the issuance of such Facility Letter of Credit, and such
payments shall be made in accordance with the terms and conditions of this
Agreement under all circumstances.
3.7 Payment of Reimbursement Obligations.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of the Issuing Bank the amount of all Advances for Reimbursement
Obligations, interest and other amounts payable to the Issuing Bank under or in
connection with any Facility Letter of Credit when due, irrespective of any
claim, set-off, defense or other right which the Borrower may have at any time
against any Issuing Bank or any other Person, under all circumstances, including
without limitation any of the following circumstances:
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
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(ii) the existence of any claim, setoff,
defense or other right which the Borrower may have at any time
against a beneficiary named in a Facility Letter of Credit or
any transferee of any Facility Letter of Credit (or any Person
for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank, any Lender, or any
other Person, whether in connection with this Agreement, any
Facility Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transactions between the Borrower and the beneficiary named in
any Facility Letter of Credit);
(iii) any draft, certificate or any other
document presented under the Facility Letter of Credit proving
to be forged, fraudulent, invalid or insufficient in any
respect of any statement therein being untrue or inaccurate in
any respect;
(iv) the surrender or impairment of any
security for the performance or observance of any of the terms
of any of the Loan Documents; or
(v) the occurrence of any Default or Event of
Default.
(b) In the event any payment by the Borrower received by the
Issuing Bank or the Administrative Agent with respect to a Facility Letter of
Credit and distributed by the Administrative Agent to the Lenders on account of
their participations is thereafter set aside, avoided or recovered from the
Administrative Agent or Issuing Bank in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each Lender which received
such distribution shall, upon demand by the Administrative Agent, contribute
such Lender's Percentage of the amount set aside, avoided or recovered together
with interest at the rate required to be paid by the Issuing Bank or the
Administrative Agent upon the amount required to be repaid by the Issuing Bank
or the Administrative Agent.
3.8 Compensation for Facility Letters of Credit.
(a) The Borrower shall pay to the Administrative Agent, for
the ratable account of the Lenders, based upon the Lenders' respective
Percentages, a per annum fee (the "Facility Letter of Credit Fee") with respect
to each Facility Letter of Credit that is equal to (i) the LIBOR Applicable
Margin in effect from time to time in the case of Financial Letters of Credit,
and (ii) the LIBOR Applicable Margin from time to time minus 0.25% in the case
of Performance Letters of Credit. The Facility Letter of Credit Fee relating to
any Facility Letter of Credit shall be due and payable in arrears in equal
installments on the first Business Day of each month following the issuance of
any Facility Letter of Credit and, to the extent any such fees are then due and
unpaid, on the Maturity Date. The Administrative Agent shall promptly remit such
Facility Letter of Credit Fees, when paid, to the other Lenders in accordance
with
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their Percentages thereof. The Borrower shall not have any liability to any
Lender for the failure of the Administrative Agent to promptly deliver funds to
any such Lender and shall be deemed to have made all such payments on the date
the respective payment is made by the Borrower to the Administrative Agent,
provided such payment is received by the time specified in Section 2.11 hereof.
(b) The Issuing Bank also shall have the right to receive
solely for its own account an issuance fee of 0.15% of the face amount of each
Facility Letter of Credit, payable by the Borrower on the Issuance Date for each
such Facility Letter of Credit. The Issuing Bank shall also be entitled to
receive its reasonable out-of-pocket costs and the Issuing Bank's standard
charges of issuing, amending and servicing Facility Letters of Credit and
processing draws thereunder.
3.9 Letter of Credit Collateral Account. The Borrower hereby
agrees that it will, until the Maturity Date, maintain a special collateral
account (the "Letter of Credit Collateral Account") at the Administrative
Agent's office at the address specified pursuant to Article XV, in the
name of the Borrower but under the sole dominion and control of the
Administrative Agent, for the benefit of the Lenders, and in which the Borrower
shall have no interest other than as set forth in Section 11.1. In addition to
the foregoing, the Borrower hereby grants to the Administrative Agent, for the
benefit of the Lenders, a security interest in and to the Letter of Credit
Collateral Account and any funds that may hereafter be on deposit in such
account, including income earned thereon. The Lenders acknowledge and agree
that the Borrower has no obligation to fund the Letter of Credit Collateral
Account unless and until so required under Section 11.1 hereof.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If the adoption of or change in any law or
any governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any interpretation
thereof, or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable
Lending Installation to any tax, duty, charge or withholding
on or from payments due from Borrower (excluding federal and
state taxation of the overall net income of any Lender or
applicable Lending Installation), or changes the basis of such
taxation of payments to any Lender in respect of its Advances,
its interest in the Facility Letters of Credit or other
amounts due it hereunder, or
(ii) imposes or increases or deems applicable
any reserve, assessment, insurance charge, special deposit or
similar requirement against
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assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to LIBOR Advances),
or
(iii) imposes any other condition, and the
result is to increase the cost of any Lender or any applicable
Lending Installation of making, funding or maintaining loans
or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with loans, or
requires any Lender or any applicable Lending Installation to
make any payment calculated by reference to the amount of
loans held, Letters of Credit issued or participated in or
interest received by it, by an amount deemed material by such
Lender,
then, within fifteen (15) days of demand by such Lender, Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Advances and its Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained
by such Lender, any Lending Installation of such Lender or any corporate entity
controlling such Lender is increased as a result of a Change (as defined
below), then, within fifteen (15) days of demand by such Lender, Borrower shall
pay such Lender the amount necessary to compensate for any shortfall in the
rate of return on the portion of such increased capital which such Lender
determines is attributable to this Agreement, its Advances, its interest in the
Facility Letters of Credit, or its obligation to make Advances hereunder or
participate in or issue Facility Letters of Credit hereunder (after taking into
account such Lender's policies as to capital adequacy). "Change" means (i) any
change after the date of this Agreement in the Risk-Based Capital Guidelines
(as defined below) or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement which affects the amount of capital required or expected
to be maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the
risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards", including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
Without in any way affecting the Borrower's obligation to pay compensation
actually claimed by a Lender under this Section 4.2, the Borrower shall have
the right to replace any Lender which has demanded such compensation provided
that Borrower notifies such Lender that it has elected to replace such Lender
and notifies such Lender and the Administrative Agent of the identity of the
proposed
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replacement Lender not more than six (6) months after the date of such Lender's
most recent demand for compensation under this Section 4.2. The Lender being
replaced shall assign its Percentage of the Aggregate Commitment and its rights
and obligations under this Facility to the replacement Lender in accordance with
the requirements of Section 13.3 hereof and the replacement Lender shall assume
such Percentage of the Aggregate Commitment and the related obligations under
this Facility prior to the Maturity Date to be extended, all pursuant to an
assignment agreement substantially in the form of Exhibit J hereto. The purchase
by the replacement Lender shall be at par (plus all accrued and unpaid interest
and any other sums owed to such Lender being replaced hereunder) which shall be
paid to the Lender being replaced upon the execution and delivery of the
assignment.
4.3 Availability of LIBOR Advances. If any Lender determines that
maintenance of any of its LIBOR Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation or directive of any Governmental
Authority having jurisdiction, the Administrative Agent shall suspend by written
notice to Borrower the availability of LIBOR Advances and require any LIBOR
Advances to be repaid; or if the Majority Lenders determine that (i) deposits of
a type or maturity appropriate to match fund LIBOR Advances are not available,
the Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination, or (ii) an interest rate applicable to a LIBOR
Advance does not accurately reflect the cost of making a LIBOR Advance, and, if
for any reason whatsoever the provisions of Section 4.1 are inapplicable, the
Administrative Agent shall suspend by written notice to Borrower the
availability of LIBOR Advances with respect to any LIBOR Advances made after the
date of any such determination.
4.4 Funding Indemnification. If any payment of a ratable LIBOR
Advance or a Competitive Bid Loan occurs on a date which is not the
last day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a ratable LIBOR Advance or a Competitive Bid Loan
is not made on the date specified by Borrower for any reason other than default
by one or more of the Lenders, Borrower will indemnify each Lender for any loss
or cost incurred by such Lender resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the ratable LIBOR Advance or Competitive Bid Loan, as the case
may be.
4.5 Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its LIBOR Advances to reduce any liability of
Borrower to such Lender under Sections 4.1 and 4.2 or to avoid the
unavailability of a LIBOR Advance, so long as such designation is not
disadvantageous to such Lender. Each Lender shall deliver a written statement
of such Lender as to the amount due, if any, under Sections 4.1, 4.2 or 4.4
hereof. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a LIBOR
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Advance shall be calculated as though each Lender funded its LIBOR Advance
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Adjusted LIBOR Rate applicable to
such Advance, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement shall be payable on demand
after receipt by Borrower of the written statement. The obligations of Borrower
under Sections 4.1, 4.2 and 4.4 hereof shall survive payment of the Obligations
and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Closing. The Lenders shall not be
required to make the initial Advance hereunder, nor shall the Issuing
Bank be required to issue the initial Facility Letter of Credit hereunder,
unless (i) the Borrower shall have paid all fees then due and payable to the
Lenders, First Chicago Capital Markets, Inc. and the Administrative Agent
hereunder, (ii) all of the conditions set forth in Section 5.2 are satisfied,
and (iii) the Borrower shall have furnished to the Administrative Agent, in
form and substance satisfactory to the Lenders and their counsel and with
sufficient copies for the Lenders, the following:
(a) Certificates of Limited Partnership/Incorporation. A copy
of the Certificate of Limited Partnership for the Borrower and a copy of the
articles of incorporation of General Partner, each certified by the appropriate
Secretary of State or equivalent state official.
(b) Agreements of Limited Partnership/Bylaws. A copy of the
Agreement of Limited Partnership for the Borrower and a copy of the bylaws of
the General Partner, including all amendments thereto, each certified by the
Secretary or an Assistant Secretary of the General Partner as being in full
force and effect on the Agreement Execution Date.
(c) Good Standing Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
states where the Borrower and General Partner are organized, dated as of the
most recent practicable date, showing the good standing or partnership
qualification (if issued) of (i) Borrower, and (ii) General Partner.
(d) Foreign Qualification Certificates. A certified copy of a
certificate from the Secretary of State or equivalent state official of the
state where the Borrower and General Partner maintain their principal place of
business, dated as of the most recent practicable date, showing the
qualification to transact business in such state as a foreign limited
partnership or foreign corporation, as the case may be, for (i) Borrower, and
(ii) General Partner.
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(e) Resolutions. A copy of a resolution or resolutions adopted
by the Board of Directors of the General Partner, certified by the Secretary or
an Assistant Secretary of the General Partner as being in full force and effect
on the Agreement Execution Date, authorizing the Advances provided for herein
and the execution, delivery and performance of the Loan Documents by the General
Partner to be executed and delivered by it hereunder on behalf of itself and
Borrower.
(f) Incumbency Certificate. A certificate, signed by the
Secretary or an Assistant Secretary of the General Partner and dated the
Agreement Execution Date, as to the incumbency, and containing the specimen
signature or signatures, of the Persons authorized to execute and deliver the
Loan Documents to be executed and delivered by it and Borrower hereunder.
(g) Loan Documents. Originals of the Loan Documents (in such
quantities as the Lenders may reasonably request), duly executed by authorized
officers of the appropriate entity.
(h) Opinion of Borrower's Counsel. A written opinion, dated
the Agreement Execution Date, from outside counsel for the Borrower which
counsel is reasonably satisfactory to Administrative Agent, substantially in the
form attached hereto as Exhibit E.
(i) Opinion of General Partner's Counsel. A written opinion,
dated the Agreement Execution Date, from outside counsel for the General Partner
which counsel is reasonably satisfactory to Administrative Agent, substantially
in the form attached hereto as Exhibit F.
(j) Insurance. Original or certified copies of insurance
policies or binders therefor, with accompanying receipts showing current payment
of all premiums, evidencing that Borrower carries insurance on the Unencumbered
Assets which satisfies the Administrative Agent's insurance requirements,
including, without limitation:
(i) Property and casualty insurance (including
coverage for flood and other water damage for any Unencumbered
Assets located within a 100-year flood plain) in the amount of
the replacement cost of the improvements at the Unencumbered
Assets;
(ii) Loss of rental income insurance in the amount
not less than one year's Gross Revenues from the Unencumbered
Assets; and
(iii) Comprehensive general liability insurance in
the amount of $1,000,000 per occurrence.
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All insurance must be carried by companies with a Best
Insurance Reports (1992) Policyholder's and Financial Size Rating of "A-VII" or
better.
(k) Prior Facility. The Lenders acknowledge that the Borrower
has properly terminated the Existing Credit Agreement effective as of the date
of the initial Advance and shall pay all outstanding obligations thereunder with
the proceeds of the initial Advance hereunder.
(l) Financial and Related Information. The following
information:
(i) A certificate, signed by an officer of the
Borrower, stating that on the Agreement Execution Date no
Default or Event of Default has occurred and is continuing and
that all representations and warranties of the Borrower
contained herein are true and correct as of the Agreement
Execution Date as and to the extent set forth herein;
(ii) The most recent financial statements of
the Borrower and General Partner and a certificate from a
Qualified Officer of the Borrower that no change in the
Borrower's financial condition that would have a Material
Adverse Effect has occurred since September 30, 1997;
(iii) Evidence of sufficient Unencumbered Assets
(which evidence may include pay-off letters (together with
evidence of payment or a direction of Borrower to use a
portion of the proceeds of the Advances to repay such
Indebtedness), mortgage releases and/or title policies) to
assist the Administrative Agent in determining the Borrower's
compliance with the covenants set forth in Article IX herein;
(iv) Written money transfer instructions, in
substantially the form of Exhibit G hereto, addressed to the
Administrative Agent and signed by a Qualified Officer,
together with such other related money transfer authorizations
as the Administrative Agent may have reasonably requested; and
(v) Operating statements for the Unencumbered
Assets and other evidence of income and expenses to assist the
Administrative Agent in determining Borrower's compliance with
the covenants set forth in Article IX herein.
(m) Other Evidence as any Lender May Require. Such other
evidence as any Lender may reasonably request to establish the consummation of
the transactions contemplated hereby, the taking of all necessary actions in any
proceedings in connection herewith and compliance with the conditions set forth
in this Agreement.
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When all such conditions have been fulfilled (or, in the Lenders' sole
discretion, waived by Lenders), the Lenders shall confirm in writing to
Borrower that the initial Advance is then available to Borrower hereunder.
5.2 Conditions Precedent to Subsequent Advances. Advances after
the initial Advance shall be made from time to time as requested by Borrower,
and the obligation of each Lender to make any Advance (including Swingline
Loans and Competitive Bid Loans) and the obligation of the Issuing Bank to
issue a Facility Letter of Credit is subject to the following terms and
conditions:
(a) prior to each such Advance no Default or Event of
Default shall have occurred and be continuing under this Agreement or any of
the Loan Documents and, if required by Administrative Agent, Borrower shall
deliver a certificate of Borrower to such effect; and
(b) The representations and warranties contained in
Article VI and VII are true and correct as of such borrowing date, Issuance
Date, or date of conversion and/or continuation as and to the extent set forth
therein, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall be true and correct on and as of such earlier date.
Subject to the last grammatical paragraphs of Article VI and VII
hereof, each Borrowing Notice, Letter of Credit Request, and
Conversion/Continuation Notice shall constitute a representation and warranty
by the Borrower that the conditions contained in Sections 5.2(a) and (b) have
been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
6.1 Existence. Borrower is a limited partnership duly organized
and existing under the laws of the State of Delaware, with its principal place
of business in the State of Illinois, and is duly qualified as a foreign
limited partnership, properly licensed (if required), in good standing and has
all requisite authority to conduct its business in each jurisdiction in which
it owns Properties and, except where the failure to be so qualified or to
obtain such authority would not have a Material Adverse Effect, in each other
jurisdiction in which its business is conducted. Each of its Subsidiaries is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which it owns Property, and except where the
failure to be so
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qualified or to obtain such authority would not have a Material Adverse Effect,
in each other jurisdiction in which it conducts business.
6.2 Corporate/Partnership Powers. The execution, delivery and
performance of the Loan Documents required to be delivered by Borrower
hereunder are within the partnership authority of such entity and the corporate
powers of the general partners of such entity, have been duly authorized by all
requisite action, and are not in conflict with the terms of any organizational
instruments of such entity, or any instrument or agreement to which Borrower or
General Partner is a party or by which Borrower, General Partner or any of
their respective assets may be bound or affected.
6.3 Power of Officers. The officers of the general partner of
Borrower executing the Loan Documents required to be delivered by such entities
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
6.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
6.5 Solvency.
(i) Immediately after the Agreement
Execution Date and immediately following the making of each
Loan and after giving effect to the application of the
proceeds of such Loans, (a) the fair value of the assets of
the Borrower and its Subsidiaries on a consolidated basis, at
a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Borrower and its
Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the Properties of the Borrower and its
Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on
their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) the
Borrower and its Subsidiaries on a consolidated basis will not
have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the date
hereof.
(ii) Borrower does not intend to, or to
permit any of its Subsidiaries to incur debts beyond its
ability to pay such debts as they mature,
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taking into account the timing of and amounts of cash to be
received by it or any such Subsidiary and the timing of the
amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
6.6 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on Borrower or any of its Subsidiaries which would be contravened by the
execution, delivery or performance of the Loan Documents required hereunder.
6.7 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the Borrower, and the Notes when executed and
delivered will be the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms, and
the Loan Documents required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws affecting the rights of creditors generally.
6.8 Title to Property. To the best of Borrower's knowledge after
due inquiry, Borrower or its Subsidiaries has good and marketable title to the
Properties and assets reflected in the financial statements as owned by it or
any such Subsidiary free and clear of Liens except for the Permitted Liens.
The execution, delivery or performance of the Loan Documents required to be
delivered by the Borrower hereunder will not result in the creation of any Lien
on the Properties. No consent to the transactions contemplated hereunder is
required from any ground lessor or mortgagee or beneficiary under a deed of
trust or any other party except as has been delivered to the Lenders.
6.9 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of Borrower's knowledge, threatened against or affecting the Borrower or any of
the Properties, the adverse determination of which individually or in the
aggregate would have a Material Adverse Effect on the Borrower and/or would
cause a Material Adverse Financial Change of Borrower or materially impair the
Borrower's ability to perform its obligations hereunder or under any instrument
or agreement required hereunder, except as disclosed on Schedule 6.9 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
6.10 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the Borrower under any of the Loan Documents or any other document to which
Borrower is a party.
6.11 Investment Company Act of 1940. Borrower is not and will by
such acts as may be necessary continue not to be, an investment company within
the meaning of the Investment Company Act of 1940.
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6.12 Public Utility Holding Company Act. The Borrower is not a
"holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
6.13 Regulation U. The proceeds of the Advances will not be used,
directly or indirectly, to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
6.14 No Material Adverse Financial Change. To the best knowledge
of Borrower, there has been no Material Adverse Financial Change in the
condition of Borrower since the date of the financial and/or operating
statements most recently submitted to the Lenders.
6.15 Financial Information. All financial statements furnished to
the Lenders by or at the direction of the Borrower and all other financial
information and data furnished by the Borrower to the Lenders are complete and
correct in all material respects as of the date thereof, and such financial
statements have been prepared in accordance with GAAP and fairly present the
consolidated financial condition and results of operations of the Borrower as
of such date. The Borrower has no contingent obligations, liabilities for
taxes or other outstanding financial obligations which are material in the
aggregate, except as disclosed in such statements, information and data.
6.16 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the Borrower to the Lenders for
purposes of or in connection with this Agreement and the other Loan Documents
and the transactions contemplated therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lenders
will be, true and accurate (taken as a whole) in all material respects on the
date as of which such information is dated or certified and not incomplete by
omitting to state any material fact necessary to make such information (taken
as a whole) not misleading at such time.
6.17 ERISA. (i) Borrower is not an entity deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan within the meaning of Section 4975 of
the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
6.18 Taxes. All required tax returns have been filed by Borrower
with the appropriate authorities except to the extent that extensions of time
to file have been requested, granted and have not expired or except to the
extent such taxes are being contested in good faith and for which adequate
reserves, in accordance with GAAP, are being maintained.
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6.19 Environmental Matters. Except as disclosed in Schedule 6.19,
each of the following representations and warranties is true and correct except
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct, in the aggregate, could not reasonably be expected
to have a Material Adverse Effect:
(i) To the knowledge of the Borrower,
the Properties of Borrower, its Subsidiaries, and Investment
Affiliates do not contain any Materials of Environmental
Concern in amounts or concentrations which constitute a
violation of, or could reasonably give rise to liability
under, Environmental Laws.
(ii) Borrower has not received any
written notice alleging that any or all of the Properties of
Borrower and its Subsidiaries and Investment Affiliates and
all operations at the Properties are not currently in
compliance with all applicable Environmental Laws. Further,
Borrower has not received any written notice alleging the
current existence of any contamination at or under such
Properties in amounts or concentrations which constitute a
violation of any Environmental Law, or any violation of any
Environmental Law with respect to such Properties for which
Borrower, its Subsidiaries or Investment Affiliates is or
could be liable.
(iii) Neither Borrower nor any of its
Subsidiaries or Investment Affiliates has received any written
notice of current non-compliance, liability or potential
liability regarding Environmental Laws with regard to any of
the Properties, nor does it have knowledge that any such
notice will be received or is being threatened.
(iv) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, Materials of
Environmental Concern have not been transported or disposed of
from the Properties of Borrower and its Subsidiaries and
Investment Affiliates in violation of, or in a manner or to a
location which could reasonably give rise to liability of
Borrower, any Subsidiary, or any Investment Affiliate under,
Environmental Laws, nor during the ownership of the Properties
by any or all of Borrower, its Subsidiaries and Investment
Affiliates have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any
of such Properties in violation of, or in a manner that could
give rise to liability of Borrower, any Subsidiary or any
Investment Affiliate under, any applicable Environmental Laws.
(v) No judicial proceedings or
governmental or administrative action is pending, or, to the
knowledge of Borrower, threatened, under any Environmental Law
to which Borrower, any of its Subsidiaries, or any
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Investment Affiliate, is named as a party with respect to the
Properties of such entity, nor are there any consent decrees
or other decrees, consent orders, administrative order or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to such
Properties for which Borrower, its Subsidiaries, or any
Investment Affiliate is or could be liable.
(vi) To the knowledge of Borrower during
the ownership of the Properties by any or all of Borrower, its
Subsidiaries and Investment Affiliates, there has been no
release or threat of release of Materials of Environmental
Concern at or from the Properties of Borrower and its
Subsidiaries and Investment Affiliates, or arising from or
related to the operations of such entity in connection with
the Properties in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
6.20 Insurance. Borrower has obtained the insurance which Borrower
is required to furnish to Lenders under Section 5.1(j) hereof.
6.21 No Brokers. Borrower has dealt with no brokers in connection
with this Facility, and no brokerage fees or commissions are payable by or to
any Person in connection with this Agreement or the Advances. Lenders shall
not be responsible for the payment of any fees or commissions to any broker and
Borrower shall indemnify, defend and hold Lenders harmless from and against any
claims, liabilities, obligations, damages, costs and expenses (including
reasonable attorneys' fees and disbursements) made against or incurred by
Lenders as a result of claims made or actions instituted by any broker or
Person claiming by, through or under Borrower in connection with the Facility.
6.22 No Violation of Usury Laws. No aspect of any of the
transactions contemplated herein violate or will violate any usury laws or laws
regarding the validity of agreements to pay interest in effect on the date
hereof.
6.23 Not a Foreign Person. Borrower is not a "foreign person"
within the meaning of Section 1445 or 7701 of the Internal Revenue Code.
6.24 No Trade Name. Except for the name "First Industrial," and
except as otherwise set forth on Schedule 6.24 attached hereto, Borrower does
not use any trade name and has not and does not do business under any name
other than their actual names set forth herein. The principal place of
business of Borrower is as stated in the recitals hereto.
6.25 Subsidiaries. Schedule 6.25 hereto contains an accurate list
of all of the presently existing Subsidiaries of Borrower, setting forth their
respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and
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the Properties owned by them. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable.
6.26 Unencumbered Assets. Schedule 6.26 hereto contains a complete
and accurate description of Unencumbered Assets as of the Agreement Execution
Date and as supplemented from time to time including the entity that owns each
Unencumbered Asset. With respect to each Project identified from time to time
as an Unencumbered Asset, Borrower hereby represents and warrants as follows
except to the extent disclosed in writing to the Lenders and approved by the
Majority Lenders (which approval shall not be unreasonably withheld):
(a) No portion of any improvement on the Unencumbered
Asset is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968 or the Flood Disaster
Protection Act of 1973, as amended, or any successor law, or, if located within
any such area, Borrower has obtained and will maintain the insurance prescribed
in Section 5.1(j) hereof.
(b) To the Borrower's knowledge, the Unencumbered Asset
and the present use and occupancy thereof are in material compliance with all
applicable zoning ordinances (without reliance upon adjoining or other
properties), building codes, land use and Environmental Laws, and other similar
laws ("Applicable Laws").
(c) The Unencumbered Asset is served by all utilities
required for the current or contemplated use thereof. All utility service is
provided by public utilities and the Unencumbered Asset has accepted or is
equipped to accept such utility service.
(d) All public roads and streets necessary for service of
and access to the Unencumbered Asset for the current or contemplated use
thereof have been completed, are serviceable and all-weather and are physically
and legally open for use by the public.
(e) The Unencumbered Asset is served by public water and
sewer systems or, if the Unencumbered Asset is not serviced by a public water
and sewer system, such alternate systems are adequate and meet, in all material
respects, all requirements and regulations of, and otherwise complies in all
material respects with, all Applicable Laws with respect to such alternate
systems.
(f) Borrower is not aware of any latent or patent
structural or other significant deficiency of the Unencumbered Asset. The
Unencumbered Asset is free of damage and waste that would materially and
adversely affect the value of the Unencumbered Asset, is in good repair and
there is no deferred maintenance other than ordinary wear and tear. The
Unencumbered Asset is free from damage caused by fire or other casualty. There
is no pending or, to the actual knowledge of Borrower threatened condemnation
proceedings affecting the Unencumbered Asset, or any material part thereof.
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(g) To Borrower's knowledge, all liquid and solid waste
disposal, septic and sewer systems located on the Unencumbered Asset are in a
good and safe condition and repair and to Borrower's knowledge, in material
compliance with all Applicable Laws with respect to such systems.
(h) All improvements on the Unencumbered Asset lie within
the boundaries and building restrictions of the legal description of record of
the Unencumbered Asset, no such improvements encroach upon easements
benefitting the Unencumbered Asset other than encroachments that do not
materially adversely affect the use or occupancy of the Unencumbered Asset and
no improvements on adjoining properties encroach upon the Unencumbered Asset or
easements benefitting the Unencumbered Asset other than encroachments that do
not materially adversely affect the use or occupancy of the Unencumbered Asset.
All amenities, access routes or other items that materially benefit the
Unencumbered Asset are under direct control of Borrower, constitute permanent
easements that benefit all or part of the Unencumbered Asset or are public
property, and the Unencumbered Asset, by virtue of such easements or otherwise,
is contiguous to a physically open, dedicated all weather public street, and
has the necessary permits for ingress and egress.
(i) There are no delinquent taxes, ground rents, water
charges, sewer rents, assessments, insurance premiums, leasehold payments, or
other outstanding charges affecting the Unencumbered Asset except to the extent
such items are being contested in good faith and as to which adequate reserves
have been provided.
A breach of any of the representations and warranties contained in this Section
6.26 with respect to a Project shall disqualify such Project from being an
Unencumbered Asset for so long as such breach continues (unless otherwise
approved by the Majority Lenders) but shall not constitute a Default (unless
the elimination of such Property as an Unencumbered Asset results in a Default
under one of the other provisions of this Agreement).
Borrower agrees that all of its representations and warranties set
forth in Article VI of this Agreement and elsewhere in this Agreement are true
on the Agreement Execution Date, and will be true on each Effective Date in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders), and will be true in all
material respects (except with respect to matters which have been disclosed in
writing to and approved by the Majority Lenders) upon each request for
disbursement of an Advance, provided that the Borrower shall only be obligated
to update any Schedules referred to in this Article VI on a quarterly basis,
along with the quarterly financial statements required under Section 8.2(i),
unless any change otherwise required to be disclosed could reasonably be
expected to have a Material Adverse Effect. Each request for disbursement
hereunder shall constitute a reaffirmation of such representations and
warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
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ARTICLE VII
ADDITIONAL REPRESENTATIONS AND WARRANTIES
The General Partner hereby represents and warrants that:
7.1 Existence. The General Partner is a corporation duly
organized and existing under the laws of the State of Maryland, with its
principal place of business in the State of Illinois, is duly qualified as a
foreign corporation and properly licensed (if required) and in good standing in
each jurisdiction where the failure to qualify or be licensed (if required)
would constitute a Material Adverse Financial Change with respect to the
General Partner or have a Material Adverse Effect on the business or properties
of the General Partner.
7.2 Corporate Powers. The execution, delivery and performance of
the Loan Documents required to be delivered by the General Partner hereunder
are within the corporate powers of the General Partner, have been duly
authorized by all requisite corporate action, and are not in conflict with the
terms of any organizational instruments of the General Partner, or any
instrument or agreement to which the General Partner is a party or by which
General Partner or any of its assets is bound or affected.
7.3 Power of Officers. The officers of the General Partner
executing the Loan Documents required to be delivered by the General Partner
hereunder have been duly elected or appointed and were fully authorized to
execute the same at the time each such agreement, certificate or instrument was
executed.
7.4 Government and Other Approvals. No approval, consent,
exemption or other action by, or notice to or filing with, any governmental
authority is necessary in connection with the execution, delivery or
performance of the Loan Documents required hereunder.
7.5 Compliance With Laws. There is no judgment, decree or order
or any law, rule or regulation of any court or governmental authority binding
on the General Partner which would be contravened by the execution, delivery or
performance of the Loan Documents required hereunder.
7.6 Enforceability of Agreement. This Agreement is the legal,
valid and binding agreement of the General Partner, as the general partner of
Borrower, enforceable against the General Partner in accordance with its
respective terms, and the Loan Documents required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally.
7.7 Liens; Consents. The execution, delivery or performance of
the Loan Documents required to be delivered by the General Partner hereunder
will not result in the
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creation of any Lien on the Properties other than in favor of the Lenders. No
consent to the transactions hereunder is required from any ground lessor or
mortgagee or beneficiary under a deed of trust or any other party except as has
been delivered to the Lenders.
7.8 Litigation. There are no suits, arbitrations, claims,
disputes or other proceedings (including, without limitation, any civil,
criminal, administrative or environmental proceedings), pending or, to the best
of General Partner's knowledge, threatened against or affecting the General
Partner or any of the Properties, the adverse determination of which
individually or in the aggregate would have a Material Adverse Effect on the
General Partner and/or would cause a Material Adverse Financial Change with
respect to the General Partner or materially impair the General Partner's
ability to perform its obligations hereunder or under any instrument or
agreement required hereunder, except as disclosed on Schedule 7.8 hereto, or
otherwise disclosed to Lenders in accordance with the terms hereof.
7.9 Events of Default. No Default or Event of Default has
occurred and is continuing or would result from the incurring of obligations by
the General Partner under any of the Loan Documents or any other document to
which General Partner is a party.
7.10 Investment Company Act of 1940. The General Partner is not,
and will by such acts as may be necessary continue not to be, an investment
company within the meaning of the Investment Company Act of 1940.
7.11 Public Utility Holding Company Act. The General Partner is
not a "holding company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," within the definitions of the Public Utility Holding Company Act of
1935, as amended.
7.12 No Material Adverse Financial Change. There has been no
Material Adverse Financial Change in the condition of the General Partner since
the last date on which the financial and/or operating statements were submitted
to the Lenders.
7.13 Financial Information. All financial statements furnished to
the Lenders by or on behalf of the General Partner and all other financial
information and data furnished by or on behalf of the General Partner to the
Lenders are complete and correct in all material respects as of the date
thereof, and such financial statements have been prepared in accordance with
GAAP and fairly present the consolidated financial condition and results of
operations of the General Partner as of such date. The General Partner has no
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material in the aggregate, except as disclosed in such
statements, information and data.
7.14 Factual Information. All factual information heretofore or
contemporaneously furnished by or on behalf of the General Partner to the
Lenders for purposes of or in connection with this Agreement and the other Loan
Documents and the transactions
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contemplated therein is, and all other such factual information hereafter
furnished by or on behalf of the General Partner to the Lenders will be, true
and accurate in all material respects (taken as a whole) on the date as of
which such information is dated or certified and not incomplete by omitting to
state any material fact necessary to make such information (taken as a whole)
not misleading at such time.
7.15 ERISA. (i) General Partner is not an entity deemed to hold
"plan assets" within the meaning of ERISA or any regulations promulgated
thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan within the meaning of Section
4975 of the Code, and (ii) the execution of this Agreement and the transactions
contemplated hereunder do not give rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
7.16 Taxes. All required tax returns have been filed by the
General Partner with the appropriate authorities except to the extent that
extensions of time to file have been requested, granted and have not expired or
except to the extent such taxes are being contested in good faith and for which
adequate reserves, in accordance with GAAP, are being maintained.
7.17 No Brokers. General Partner has dealt with no brokers in
connection with this Facility, and no brokerage fees or commissions are payable
by or to any Person in connection with this Agreement or the Advances. Lender
shall not be responsible for the payment of any fees or commissions to any
broker and General Partner shall indemnify, defend and hold Lender harmless
from and against any claims, liabilities, obligations, damages, costs and
expenses (including reasonable attorneys' fees and disbursements) made against
or incurred by Lender as a result of claims made or actions instituted by any
broker or Person claiming by, through or under the General Partner in
connection with the Facility.
7.18 Subsidiaries. Schedule 7.18 hereto contains an accurate list
of all of the presently existing Subsidiaries of General Partner, setting forth
their respective jurisdictions of formation, the percentage of their respective
Capital Stock owned by it or its Subsidiaries and the Properties owned by them.
All of the issued and outstanding shares of Capital Stock of such Subsidiaries
have been duly authorized and issued and are fully paid and non-assessable.
7.19 Status. General Partner is a corporation listed and in good
standing on the New York Stock Exchange ("NYSE") and is currently qualified as
a real estate investment trust under the Code.
General Partner agrees that all of its representations and warranties
set forth in Article VII of this Agreement and elsewhere in this Agreement are
true on the Agreement Execution Date, and will be true on each Effective Date
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders), and will be true
in all material respects (except with respect to matters which have been
disclosed in writing to and approved by the Majority Lenders) upon each request
for
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disbursement of an Advance, provided that the General Partner shall only be
obligated to update any Schedules referred to in this Article VII on a
quarterly basis, along with the quarterly financial statements required under
Section 8.2(i), unless any change otherwise required to be disclosed could
reasonably be expected to have a Material Adverse Effect. Each request for
disbursement hereunder shall constitute a reaffirmation of such representations
and warranties as deemed modified in accordance with the disclosures made and
approved, as aforesaid, as of the date of such request and disbursement.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower (and the General Partner, if expressly included in
Sections contained in this Article) covenant and agree that so long as the
Commitment of any Lender shall remain available and until the full and final
payment of all Obligations incurred under the Loan Documents they will:
8.1 Notices. Promptly give written notice to Administrative Agent
(who will promptly send such notice to Lenders) of:
(a) all litigation or arbitration proceedings affecting
the Borrower, the General Partner or any Subsidiary where the amount claimed is
$5,000,000 or more;
(b) any Default or Event of Default, specifying the
nature and the period of existence thereof and what action has been taken or
been proposed to be taken with respect thereto;
(c) all claims filed against any property owned by the
Borrower or the General Partner which, if adversely determined, could have a
Material Adverse Effect on the ability of the Borrower or the General Partner
to meet any of their obligations under the Loan Documents;
(d) the occurrence of any other event which might have a
Material Adverse Effect or cause a Material Adverse Financial Change on or with
respect to the Borrower or the General Partner;
(e) any Reportable Event or any "prohibited transaction"
(as such term is defined in Section 4975 of the Code) in connection with any
Plan or any trust created thereunder, which may, singly or in the aggregate
materially impair the ability of the Borrower or the General Partner to repay
any of its obligations under the Loan Documents, describing the nature of each
such event and the action, if any, the Borrower or the General Partner, as the
case may be, proposes to take with respect thereto;
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(f) any notice from any federal, state, local or foreign
authority regarding any Hazardous Material, asbestos, or other environmental
condition, proceeding, order, claim or violation affecting any of the
Properties.
8.2 Financial Statements, Reports, Etc. The Borrower and the
General Partner each shall maintain, for itself and each Subsidiary, a system
of accounting established and administered in accordance with GAAP, and shall
furnish to the Lenders:
(i) quarterly financial statements
(including a balance sheet and income statement) and related
reports in form and substance satisfactory to the Lenders not
later than 45 days after the end of each of the first three
fiscal quarters, and not later than ninety (90) days after the
end of each fiscal year, all certified by Borrower's chief
financial officer or chief accounting officer, including a
statement of Funds From Operations for the General Partner,
calculation of the financial covenants described below, a
description of Unencumbered Assets, a listing of capital
expenditures (in the level of detail as currently disclosed in
Borrower's "Supplemental Information"), a report listing and
describing all newly acquired Properties, including their cash
flow, cost and secured or unsecured Indebtedness assumed in
connection with such acquisition, if any, summary Property
information for all Properties, including, without limitation,
their Property Operating Income, occupancy rates, square
footage, property type and date acquired or built, and such
other information as may be requested to evaluate the
quarterly compliance certificate delivered as provided below;
(ii) copies of all Form 10Ks, 10Qs, 8Ks,
and any other public information filed with the Securities
Exchange Commission by Borrower or the General Partner once a
quarter simultaneously with delivering the compliance
certificate described below, along with any other materials
distributed to the shareholders of the General Partner or the
partners of the Borrower from time to time, including a copy
of the General Partner's annual report. To the extent any of
such reports contains information required under the other
subsections of this Section 8.2, the information need not be
furnished separately under the other subsections;
(iii) not later than forty-five (45) days
after the end of the first three fiscal quarters, and not
later than ninety (90) days after the end of the fiscal year,
a report certified by the entity's chief financial officer or
chief accounting officer, containing Property Operating Income
from individual properties owned by the Borrower or a
Wholly-Owned Subsidiary and included as Unencumbered Assets.
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(iv) Not later than forty-five (45) days
after the end of each of the first three fiscal quarters, and
not later than ninety (90) days after the end of the fiscal
year, a compliance certificate in substantially the form of
Exhibit H hereto signed by the Borrower's chief financial
officer or chief accounting officer confirming that Borrower
is in compliance with all of the covenants of the Loan
Documents, showing the calculations and computations necessary
to determine compliance with the financial covenants contained
in this Agreement (including such schedules and backup
information as may be necessary to demonstrate such
compliance) and stating that to such officer's best knowledge,
there is no other Default or Event of Default exists, or if
any Default or Event of Default exists, stating the nature and
status thereof;
(v) (a) As soon as possible and in any
event within 10 Business Days after the Borrower knows that
any Reportable Event has occurred with respect to any Plan, a
statement, signed by the chief financial officer of Borrower,
describing said Reportable Event and within 20 days after such
Reportable Event, a statement signed by such chief financial
officer describing the action which Borrower proposes to take
with respect thereto; and (b) within 10 Business Days of
receipt, any notice from the Internal Revenue Service, PBGC or
Department of Labor with respect to a Plan regarding any
excise tax, proposed termination of a Plan, prohibited
transaction or fiduciary violation under ERISA or the Code
which could result in any liability to Borrower or any member
of the Controlled Group in excess of $100,000; and (c) within
10 Business Days of filing, any Form 5500 filed by Borrower
with respect to a Plan, or any member of the Controlled Group
which includes a qualified accountant's opinion.
(vi) As soon as possible and in any event
within 30 days after receipt by the Borrower, a copy of (a)
any notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a result
of the release by such entity, or any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health
or safety law or regulation by the Borrower or any of its
Subsidiaries or Investment Affiliates, which, in either case,
could be reasonably likely to have a Material Adverse Effect;
(vii) Promptly upon the furnishing thereof
to the shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished;
(viii) Promptly upon the distribution
thereof to the press or the public, copies of all press
releases;
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(ix) As soon as possible, and in any
event within 10 days after the Borrower knows of any fire or
other casualty or any pending or threatened condemnation or
eminent domain proceeding with respect to all or any material
portion of any Unencumbered Asset, a statement signed by the
Chief Financial Officer of Borrower, describing such fire,
casualty or condemnation and the action Borrower intends to
take with respect thereto; and
(x) Such other information (including,
without limitation, non-financial information) as the
Administrative Agent or any Lender may from time to time
reasonably request.
8.3 Existence and Conduct of Operations. Except as permitted
herein, maintain and preserve its existence and all rights, privileges and
franchises now enjoyed and necessary for the operation of its business,
including remaining in good standing in each jurisdiction in which business is
currently operated. The Borrower and the General Partner shall carry on and
conduct their respective businesses in substantially the same manner and in
substantially the same fields of enterprise as presently conducted. The
Borrower will do, and will cause each of its Subsidiaries to do, all things
necessary to remain duly incorporated and/or duly qualified, validly existing
and in good standing as a real estate investment trust, corporation, general
partnership, limited liability company or limited partnership, as the case may
be, in its jurisdiction of incorporation/formation. The Borrower will maintain
all requisite authority to conduct its business in each jurisdiction in which
the Properties are located and, except where the failure to be so qualified
would not have a Material Adverse Effect, in each jurisdiction required to
carry on and conduct its businesses in substantially the same manner as it is
presently conducted, and, specifically, neither the Borrower nor its
Subsidiaries will undertake any business other than the acquisition,
development, ownership, management, operation and leasing of
warehouse/industrial properties and ancillary businesses specifically related
thereto, except that the Borrower and its Subsidiaries and Investment
Affiliates may invest in other assets subject to the certain limitations
contained herein with respect to the following specified categories of assets:
(i) Unimproved Land; (ii) other property holdings (excluding cash, Cash
Equivalents, non-industrial Properties and Indebtedness of any Subsidiary to
the Borrower); (iii) stock holdings other than in Subsidiaries; (iv) mortgages;
and (v) joint ventures and partnerships. The total investment in any one of
categories (i), (ii), (iii), (iv) or (v) shall not exceed 10% of Implied
Capitalization Value and the total investment in all the foregoing investment
categories in the aggregate shall be less than or equal to twenty percent (20%)
of Market Value Net Worth. In addition to the foregoing restrictions,
investments in Unimproved Land which is not adjacent to existing improvements
and not under active planning for near term development as evidenced to the
reasonable satisfaction of Administrative Agent shall not exceed in the
aggregate 5% of Implied Capitalization Value, and no single industrial property
shall exceed 5% of Implied Capitalization Value. For the purposes of this
Section 8.3, all investments shall be valued in accordance with GAAP.
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8.4 Maintenance of Properties. Maintain, preserve, protect and
keep the Properties in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements, normal wear and tear
excepted.
8.5 Insurance. Provide a certificate of insurance from all
insurance carriers who maintain policies with respect to the Properties within
thirty (30) days after the end of each fiscal year, evidencing that the
insurance required to be furnished to Lenders pursuant to Section 5.1(j) hereof
is in full force and effect. Borrower shall timely pay, or cause to be paid,
all premiums on all insurance policies required under this Agreement from time
to time. Borrower shall promptly notify its insurance carrier or agent
therefor (with a copy of such notification being provided simultaneously to
Administrative Agent) if there is any occurrence which, under the terms of any
insurance policy then in effect with respect to the Properties, requires such
notification.
8.6 Payment of Obligations. Pay all taxes, assessments,
governmental charges and other obligations when due, except such as may be
contested in good faith or as to which a bona fide dispute may exist, and for
which adequate reserves have been provided in accordance with sound accounting
principles used by Borrower on the date hereof.
8.7 Compliance with Laws. Comply in all material respects with
all applicable laws, rules, regulations, orders and directions of any
governmental authority having jurisdiction over Borrower, General Partner, or
any of their respective businesses.
8.8 Adequate Books. Maintain adequate books, accounts and records
in order to provide financial statements in accordance with GAAP and, if
requested by any Lender, permit employees or representatives of such Lender at
any reasonable time and upon reasonable notice to inspect and audit the
properties of Borrower and of the Consolidated Operating Partnership, and to
examine or audit the inventory, books, accounts and records of each of them and
make copies and memoranda thereof.
8.9 ERISA. Comply in all material respects with all requirements
of ERISA applicable to it with respect to each Plan.
8.10 Maintenance of Status. General Partner shall at all times (i)
remain as a corporation listed and in good standing on the New York Stock
Exchange (NYSE), and (ii) take all steps maintain General Partner's status as a
real estate investment trust in compliance with all applicable provisions of
the Code (unless otherwise consented to by the Supermajority Lenders).
8.11 Use of Proceeds. Use the proceeds of the Facility for the
general business purposes of the Borrower, including without limitation working
capital needs, closing costs, and interim funding for property acquisitions and
construction of new industrial properties, and/or payment of other debts and
obligations of Borrower.
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8.12 Pre-Acquisition Environmental Investigations. Cause to be
prepared prior to the acquisition of each project that it intends to acquire an
environmental report pursuant to a standard scope of work attached as Exhibit I
hereto and made a part hereof.
8.13 Distributions. Provided there is no Monetary Default then
existing and provided there is not an Event of Default relating to a breach of
the financial covenants contained in Section 9.10 below, the General Partner
may make distributions to its shareholders provided that the aggregate amount
of distributions in any period of four consecutive fiscal quarters is not in
excess of 95% of its Funds From Operations for such period. Notwithstanding
the foregoing, unless at the time of distribution there is a Monetary Default,
the General Partner shall be permitted at all times to distribute whatever
amount is necessary to maintain its tax status as a real estate investment
trust.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that, so long as the Commitment
shall remain available and until full and final payment of all obligations
incurred under the Loan Documents, without the prior written consent of the
Majority Lenders (or the Administrative Agent or a greater Percentage of the
Lenders, if so expressly provided), it will not, and the General Partner will
not and, in the case of Sections 9.5 and 9.11, Borrower's Subsidiaries will
not:
9.1 Change in Business. Engage in any business activities or
operations other than (i) the ownership and operation of the Properties, or
(ii) other business functions and transactions related to the financing,
ownership, acquisition, development and/or management of bulk warehouse and
light industrial properties, or without obtaining the prior written consent of
the Supermajority Lenders materially change the nature of the use of the
Properties.
9.2 Change of Management of Properties. Change the management of
the Properties, except that any Affiliate of Borrower or the General Partner
shall be permitted to manage any of the Properties.
9.3 Change of Borrower Ownership or Financing Partnership
Ownership. Allow (i) the General Partner to own less than fifty-one percent
(51%) of the partnership interests in Borrower or 100% of the stock in FIMC and
in FISC, (ii) the Borrower to be controlled by a Person other than the General
Partner, (iii) any pledge of, other encumbrance on, or conversion to limited
partnership interests of, any of the general partnership interests in the
Borrower, or (iv) any pledge, hypothecation, encumbrance, transfer or other
change in the ownership or the partnership interests in the Financing
Partnership or Mortgage Partnership (except for the pledge of such partnership
interests to the REMIC Lender).
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9.4 Use of Proceeds. Apply or permit to be applied any proceeds
of any Advance directly or indirectly, to the funding of any purchase
of, or offer for, any share of capital stock of any publicly held corporation
unless the board of directors of such corporation has consented to such offer
prior to any public announcements relating thereto and the Lenders have
consented to such use of the proceeds of the Facility.
9.5 Transfers of Unencumbered Assets. Transfer or otherwise
dispose of (other than the creation or incurrence of Liens permitted
under Section 9.6) an Unencumbered Asset without the prior written consent of
the Majority Lenders if the Value of such Unencumbered Asset, together with the
Value of any other Unencumbered Assets which have been transferred or disposed
of during the then-current fiscal quarter and the immediately preceding three
(3) full fiscal quarters, would exceed twenty percent (20%) of the sum of the
Value of Unencumbered Assets at the beginning of such period plus the increase
therein as a result of all Projects added to Unencumbered Assets during such
period.
9.6 Liens. Create, incur, or suffer to exist (or permit any of its
Subsidiaries to create, incur, or suffer to exist) any Lien in, of or on the
Property of any member of the Consolidated Operating Partnership other than:
(i) Liens for taxes, assessments or
governmental charges or levies on their Property if the same
shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves shall
have been set aside on their books;
(ii) Liens which arise by operation of law,
such as carriers', warehousemen's, landlords', materialmen and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 30 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books;
(iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance, old
age pensions, or other social security or retirement benefits,
or similar legislation;
(iv) Utility easements, building restrictions,
zoning restrictions, easements and such other encumbrances or
charges against real property as are of a nature generally
existing with respect to properties of a similar character and
which do not in any material way affect the marketability of
the same or interfere with the use thereof in the business of
the Borrower or its Subsidiaries;
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(v) Liens of any Subsidiary in favor of the
Borrower or General Partner; and
(vi) Liens arising in connection with any
Indebtedness permitted hereunder to the extent such Liens will
not result in a violation of any of the provisions of this
Agreement.
Liens permitted pursuant to this Section 9.6 shall be deemed to be "Permitted
Liens".
9.7 Regulation U. Use any of the proceeds of the Facility to
purchase or carry any Margin Stock.
9.8 Indebtedness and Cash Flow Covenants. Permit or suffer:
(a) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, the ratio of (A) the sum of (1) EBITDA of the
Consolidated Operating Partnership plus (2) interest income (other than any
interest income from assets being used to support Defeased REMIC Debt) deducted
in calculating such EBITDA of the Consolidated Operating Partnership to (B) the
sum of (1) Interest Expense plus (2) Senior Preferred Stock Expense of the
General Partner for such fiscal quarter to be less than 2.0 to 1.0, based on
annualizing the results of such fiscal quarter;
(b) as of any day, Consolidated Total Indebtedness to exceed
50% of Implied Capitalization Value of the Consolidated Operating Partnership;
(c) as of any day, the ratio of Value of Unencumbered Assets
to outstanding Consolidated Senior Unsecured Debt to be less than either
(i) 1.65 to 1.0 for any fiscal quarter not ending during a Rating Period or
(ii) 1.5 to 1.0 for any fiscal quarter ending during a Rating Period;
(d) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, the ratio obtained by dividing (a) Property Operating
Income from Unencumbered Assets qualifying for inclusion in the calculation of
Value of Unencumbered Assets for such quarter by (b) Debt Service on all
Consolidated Senior Unsecured Debt for such quarter to be less than 1.75 to 1;
(e) as of any day, the sum of (1) Consolidated Secured Debt
plus (2) Senior Preferred Stock of the General Partner to exceed 35% of Implied
Capitalization Value of the Consolidated Operating Partnership. Senior Preferred
Stock of the General Partner will be dropped from this ratio when the PS
Guaranty is eliminated, as evidenced by the Administrative Agent's receipt of
satisfactory evidence thereof;
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(f) as of December 31, 1997 or the last day of any fiscal
quarter ending thereafter, Market Value Net Worth of the Consolidated Operating
Partnership to be less than the sum of (i) $622,672,000 plus (ii) seventy-five
percent (75%) of the aggregate proceeds received (net of customary related fees
and expenses) in connection with any equity offering (including any issuance of
shares in the General Partner or units in the Borrower) after September30,
1997.
To the extent the Consolidated Operating Partnership has Defeased REMIC Debt,
both the underlying debt and interest payable thereon and the financial assets
used to defease such debt and interest earned thereon shall be excluded from
calculations of the foregoing financial covenants.
9.9 Mergers and Dispositions. Enter into any merger,
consolidation, reorganization or liquidation or transfer or otherwise
dispose of all or a substantial portion of its properties, except for:such
transactions that occur between wholly-owned Subsidiaries; transactions where
Borrower and the General Partner are the surviving entities and there is no
change in business conducted or loss of an investment grade credit rating, and
no Default or Event of Default under the Loan Documents results from such
transaction; or as otherwise approved in advance by the Lenders. Borrower will
notify the Administrative Agent (who will promptly notify Lenders) of any
acquisitions, dispositions, mergers or asset purchases involving assets valued
in excess of 5% of the Consolidated Operating Partnership's then-current Market
Value Net Worth and certify compliance with covenants after giving effect to
such proposed acquisition, disposition, merger, or asset purchase regardless of
whether any consent is required.
9.10 Negative Pledge. Borrower agrees that throughout the term of
this Facility, no "negative pledge" on any Project then included in Unencumbered
Assets restricting Borrower's (or wholly-owned Subsidiary's) right to sell or
encumber such Project shall be given to any other lender or creditor or, if such
a "negative pledge" is given, the Project affected shall be immediately excluded
from Unencumbered Assets.
9.11 Maximum Revenue from Single Tenant. Permit the rent revenue
(exclusive of tenant reimbursements) received from a single tenant during any
quarter (as annualized), to exceed 7.5% of the Consolidated Operating
Partnership's total rent revenue (as annualized) as of the last day of such
quarter, except where the Consolidated Operating Partnership's noncompliance
arises from a merger of tenants or other causes outside of the Consolidated
Operating Partnership's control.
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ARTICLE X
DEFAULTS
The occurrence of any one or more of the following events shall
constitute an Event of Default:
10.1 Nonpayment of Principal. The Borrower fails to pay any
principal portion of the Obligations when due, whether on the Maturity Date or
otherwise.
10.2 Certain Covenants. The Borrower, General Partner and/or
Consolidated Operating Partnership, as the case may be, is not in compliance
with any one or more of Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10
or 9.11 hereof.
10.3 Nonpayment of Interest and Other Obligations. The Borrower
fails to pay any interest or other portion of the Obligations, other
than payments of principal, and such failure continues for a period of five (5)
days after the date such payment is due.
10.4 Cross Default. Any monetary default occurs (after giving
effect to any applicable cure period) under any other Indebtedness
(which includes liability under Guaranties) of Borrower or the General Partner,
singly or in the aggregate, in excess of Seven Million Five Hundred Thousand
Dollars ($7,500,000), other than (i) Indebtedness arising from the purchase of
personal property or the provision of services, the amount of which is being
contested by Borrower or (ii) Indebtedness (other than the REMIC Loan which is
the subject of Section 10.13 below) which is "non-recourse", i.e., which is not
recoverable by the creditor thereof from the general assets of the Borrower,
the General Partner or any of their Affiliates, but is limited to the proceeds
of certain real estate, improvements and related personal property.
10.5 Loan Documents. Any Loan Document is not in full force and
effect or a default has occurred and is continuing thereunder after giving
effect to any cure or grace period in any such document.
10.6 Representation or Warranty. At any time or times hereafter any
representation or warranty set forth in Articles VI or VII of this Agreement or
in any other Loan Document or in any statement, report or certificate now or
hereafter made by the Borrower or the General Partner to the Lenders or the
Administrative Agent is not true and correct in any material respect.
10.7 Covenants, Agreements and Other Conditions. The Borrower or
the General Partner fails to perform or observe any of the other
covenants, agreements and conditions contained in Articles VIII and IX (except
for Sections 8.10, 8.13, 9.3, 9.4, 9.5, 9.6, 9.8, 9.9, 9.10 or 9.11 hereof) and
elsewhere in this Agreement or any of the other Loan Documents in
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accordance with the terms hereof or thereof, not specifically referred to
herein, and such Default continues unremedied for a period of thirty (30) days
after written notice from Administrative Agent, provided, however, that if such
Default is susceptible of cure but cannot by the use of reasonable efforts be
cured within such thirty (30) day period, such Default shall not constitute an
Event of Default under this Section 10.7 so long as (i) the Borrower or the
General Partner, as the case may be, has commenced a cure within such thirty-day
period and (ii) thereafter, Borrower or General Partner, as the case may be, is
proceeding to cure such default continuously and diligently and in a manner
reasonably satisfactory to Lenders and (iii) such default is cured not later
than sixty (60) days after the expiration of such thirty (30) day period.
10.8 No Longer General Partner. The General Partner shall no
longer be the sole general partner of Borrower.
10.9 Material Adverse Financial Change. The Borrower or General
Partner has suffered a Material Adverse Financial Change or is Insolvent.
10.10 Bankruptcy.
(a) The General Partner, the Borrower or any Subsidiary having
more than $10,000,000 of Equity Value (as defined below) shall (i) have an order
for relief entered with respect to it under the Federal bankruptcy laws as now
or hereafter in effect, (ii) make an assignment for the benefit of creditors,
(iii) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for it or
any substantial portion of its Property, (iv) institute any proceeding seeking
an order for relief under the Federal bankruptcy laws as now or hereafter in
effect or seeking to adjudicate it as a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed against
it, (v) take any corporate action to authorize or effect any of the foregoing
actions set forth in this Section 10.10(a), (vi) fail to contest in good faith
any appointment or proceeding described in Section 10.10(b) or (vii) not pay, or
admit in writing its inability to pay, its debts generally as they become due.
As used herein, the term "Equity Value" of a Subsidiary shall mean (1) Property
Operating Income of such Subsidiary's Properties owned as of the Agreement
Execution Date capitalized at a 10.5% rate, plus (2) the purchase price of any
of such Subsidiary's Properties acquired after the Agreement Execution Date less
(3) any Indebtedness of such Subsidiary;
(b) A receiver, trustee, examiner, liquidator or similar
official shall be appointed for the General Partner, Borrower or any Subsidiary
having more than $10,000,000 of Equity Value or any substantial portion of any
of their Properties, or a proceeding described in Section 10.10(a)(iv) shall be
instituted against the General Partner, the Borrower or any
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such Subsidiary and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of sixty (60) consecutive days.
10.11 Legal Proceedings. Borrower or General Partner is enjoined,
restrained or in any way prevented by any court order or judgment or if a notice
of lien, levy, or assessment is filed of record with respect to all or any part
of the Properties by any governmental department, office or agency, which could
materially adversely affect the performance of the obligations of such parties
hereunder or under the Loan Documents, as the case may be, or if any proceeding
is filed or commenced seeking to enjoin, restrain or in any way prevent the
foregoing parties from conducting all or a substantial part of their respective
business affairs and failure to vacate, stay, dismiss, set aside or remedy the
same within ninety (90) days after the occurrence thereof.
10.12 ERISA. Borrower or General Partner is deemed to hold "plan
assets" within the meaning of ERISA or any regulations promulgated thereunder of
an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject
to Title I of ERISA or any plan (within the meaning of Section 4975 of the
Code).
10.13 REMIC Loan. Any "Event of Default" (as such term is defined
in the REMIC Loan Agreement) occurs under the REMIC Loan Agreement with
respect to the REMIC Loan.
10.14 Failure to Satisfy Judgments. The General Partner, the
Borrower or any of its Subsidiaries shall fail within sixty (60) days
to pay, bond or otherwise discharge any judgments or orders for the payment of
money in an amount which, when added to all other judgments or orders
outstanding against the General Partner, the Borrower or any Subsidiary would
exceed $10,000,000 in the aggregate, which have not been stayed on appeal or
otherwise appropriately contested in good faith, unless the liability is
insured against and the insurer has not challenged coverage of such liability.
10.15 Environmental Remediation. Failure to remediate within the
time period required by law or governmental order, (or within a
reasonable time in light of the nature of the problem if no specific time period
is so established), environmental problems in violation of applicable law
related to Properties of Borrower and/or its Subsidiaries where the estimated
cost of remediation is in the aggregate in excess of $20,000,000, in each case
after all administrative hearings and appeals have been concluded.
ARTICLE XI
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ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
11.1 Acceleration.
If any Event of Default described in Section 10.10 hereof
occurs, the obligation of the Lenders to make Advances and of the Issuing Bank
to issue Facility Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable. If any other Event of
Default described in Article X hereof occurs, such obligation to make Advances
and to issue Facility Letters of Credit shall be terminated and at the election
of the Majority Lenders, the Obligations may be declared to be due and payable.
In addition to the foregoing, following the occurrence of an
Event of Default and so long as any Facility Letter of Credit has not been fully
drawn and has not been cancelled or expired by its terms, upon demand by the
Majority Lenders the Borrower shall deposit in the Letter of Credit Collateral
Account cash in an amount equal to the aggregate undrawn face amount of all
outstanding Facility Letters of Credit and all fees and other amounts due or
which may become due with respect thereto. The Borrower shall have no control
over funds in the Letter of Credit Collateral Account, which funds shall be
invested by the Administrative Agent from time to time in its discretion in
certificates of deposit of First Chicago having a maturity not exceeding thirty
(30) days. Such funds shall be promptly applied by the Administrative Agent to
reimburse the Issuing Bank for drafts drawn from time to time under the Facility
Letters of Credit and to pay any fees or other amounts due with respect thereto.
Such funds, if any, remaining in the Letter of Credit Collateral Account
following the payment of all Obligations in full shall, unless the
Administrative Agent is otherwise directed by a court of competent jurisdiction,
be promptly paid over to the Borrower.
11.2 Preservation of Rights; Amendments. No delay or omission of
the Lenders in exercising any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of an Advance notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Advance shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by the Administrative Agent and the number of Lenders required hereunder
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be cumulative
and all shall be available to the Lenders until the Obligations have been paid
in full.
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ARTICLE XII
THE ADMINISTRATIVE AGENT
12.1 Appointment. First Chicago is hereby appointed Administrative
Agent hereunder and under each other Loan Document, and each of the Lenders
authorizes the Administrative Agent to act as the agent of such Lender. The
Administrative Agent agrees to act as such upon the express conditions contained
in this Article XII. The Administrative Agent shall not have a fiduciary
relationship in respect of any Lender by reason of this Agreement, except to the
extent the Administrative Agent acts as an agent with respect to the receipt or
payment of funds hereunder.
12.2 Powers. The Administrative Agent shall have and may exercise
such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the Lenders to take any
action thereunder except any action specifically provided by the Loan Documents
to be taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent (in its
capacity as Administrative Agent) nor any of its directors, officers, agents or
employees shall be liable to the Borrower, the Lenders or any Lender for any
action taken or omitted to be taken by it or them hereunder or under any other
Loan Document or in connection herewith or therewith, except for its or their
own gross negligence or willful misconduct. Subject to the express terms hereof,
the Administrative Agent will, unless otherwise instructed as described in
Section 12.5, endeavor to administer the Facility in substantially the same
manner as it administers similar credit facilities held for its own account.
12.4 No Responsibility for Loans, Recitals, etc. Neither the
Administrative Agent (in its capacity as Administrative Agent) nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document; (iii) the satisfaction of any
condition specified in Article V, except receipt of items required to be
delivered to the Administrative Agent; or (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith.
12.5 Action on Instructions of Lenders. The Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Majority Lenders, Supermajority Lenders or all
Lenders, as the case may be, and such instructions and any action taken or
failure to act pursuant thereto shall be binding on all of the Lenders and on
all holders
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of Notes. The Administrative Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document unless it shall first be indemnified to its satisfaction by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
12.6 Employment of Administrative Agents and Counsel. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders, except as to money
or securities received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care. The Administrative Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper person or persons,
and, in respect to legal matters, upon the opinion of outside counsel selected
by the Administrative Agent.
12.8 Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
accordance with their respective Percentages (i) for any amounts not reimbursed
by the Borrower for which the Administrative Agent is entitled to reimbursement
by the Borrower under the Loan Documents, (ii) for any other reasonable expenses
incurred by the Administrative Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents, if not paid by Borrower, and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent (in its capacity as
Administrative Agent and not as a Lender) in any way relating to or arising out
of the Loan Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of the terms
thereof or of any such other documents, provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of the Administrative Agent.
12.9 Rights as a Lender. With respect to the Commitment, Advances
made by it and the Note issued to it, the Administrative Agent shall
have the same rights and powers hereunder and under any other Loan Document as
any Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent, in its individual capacity, may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or other
transaction, in addition to those
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contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
12.10 Commitment as a Lender. First Chicago and UBS each agrees to
maintain at all times a Commitment of at least 8.34% of the Aggregate Commitment
so long as First Chicago remains as Administrative Agent; provided, that the
foregoing agreement of First Chicago and UBS shall not apply at any time
following a Monetary Default or Event of Default (irrespective of whether such
Monetary Default or Event of Default subsequently is waived).
12.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
12.12 Successor Administrative Agent. Each Lender agrees that First
Chicago shall serve as Administrative Agent at all times during the term of this
Facility, except that First Chicago may resign as Administrative Agent in the
event (x) First Chicago and Borrower shall mutually agree in writing or (y) an
Event of Default shall occur under the Loan Documents (irrespective of whether
such Event of Default subsequently is waived), or (z) First Chicago shall
determine, in its sole reasonable discretion, that because of its other banking
relationships with Borrower and/or Borrower's Affiliates at the time of such
decision First Chicago's resignation as Administrative Agent would be necessary
in order to avoid creating an appearance of impropriety on the part of First
Chicago. First Chicago (or any successor Administrative Agent) may be removed as
Administrative Agent by written notice received by Administrative Agent from all
of the other Lenders (i) at any time with cause (i.e., a breach by First Chicago
(or any successor Administrative Agent) of its duties as Administrative Agent
hereunder), or (ii) without cause if First Chicago (or any successor
Administrative Agent) assigns a portion of First Chicago's (or such successor
Administrative Agent's) then applicable Commitment in an amount such that
following such assignment First Chicago's (or such successor Administrative
Agent's) then remaining Commitment is less than the then applicable Commitment
of any other Lender hereunder. Upon any such resignation or removal, UBS shall
be the successor Administrative Agent (unless objected to by the Majority
Lenders) or, if UBS declines or is so objected to, the Majority Lenders shall
have the right to appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may appoint, on
behalf of the
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Borrower and the Lenders, a successor Administrative Agent. Such
successor Administrative Agent shall be a commercial bank having capital and
retained earnings of at least $100,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent (including the right to receive any fees for performing
such duties which accrue thereafter), and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit and that of the other Lenders in respect of
any actions taken or omitted to be taken by it while it was acting as the
Administrative Agent hereunder and under the other Loan Documents.
12.13 Notice of Defaults. If a Lender becomes aware of a Default
or Event of Default, such Lender shall notify the Administrative Agent of such
fact. Upon receipt of such notice that a Default or Event of Default has
occurred, the Administrative Agent shall notify each of the Lenders of such
fact.
12.14 Requests for Approval. If the Administrative Agent requests
in writing the consent or approval of a Lender, such Lender shall respond and
either approve or disapprove definitively in writing to the Administrative Agent
within ten Business Days (or sooner if such notice specifies a shorter period,
but in no event less than five Business Days for responses based on
Administrative Agent's good faith determination that circumstances exist
warranting its request for an earlier response) after such written request from
the Administrative Agent. If the Lender does not so respond, that Lender shall
be deemed to have approved the request. Upon request, the Administrative Agent
shall notify the Lenders which Lenders, if any, failed to respond to a request
for approval.
12.15 Copies of Documents. Administrative Agent shall promptly
deliver to each of the Lenders copies of all notices of default and
other formal notices sent or received and according to Section 15.1 of this
Agreement. Administrative Agent shall deliver to Lenders within 15 Business
Days following receipt, copies of all financial statements, certificates and
notices received regarding the General Partner's ratings except to the extent
such items are required to be furnished directly to the Lenders by Borrower
hereunder. Within fifteen Business Days after a request by a Lender to the
Administrative Agent for other documents furnished to the Administrative Agent
by the Borrower, the Administrative Agent shall provide copies of such
documents to such Lender except where this Agreement obligates Administrative
Agent to provide copies in a shorter period of time.
12.16 Defaulting Lenders. At such time as a Lender becomes a
Defaulting Lender, such Defaulting Lender's right to vote on matters
which are subject to the consent or approval of the Majority or Supermajority
Lenders, such Defaulting Lender or all Lenders shall be immediately suspended
until such time as the Lender is no longer a Defaulting Lender. If a
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Defaulting Lender has failed to fund its Percentage of any Advance and until
such time as such Defaulting Lender subsequently funds its Percentage of such
Advance, all Obligations owing to such Defaulting Lender hereunder shall be
subordinated in right of payment, as provided in the following sentence, to the
prior payment in full of all principal of, interest on and fees relating to the
Loans funded by the other Lenders in connection with any such Advance in which
the Defaulting Lender has not funded its Percentage (such principal, interest
and fees being referred to as "Senior Loans" for the purposes of this section).
All amounts paid by the Borrower and otherwise due to be applied to the
Obligations owing to such Defaulting Lender pursuant to the terms hereof shall
be distributed by the Administrative Agent to the other Lenders in accordance
with their respective Percentages (recalculated for the purposes hereof to
exclude the Defaulting Lender) until all Senior Loans have been paid in full. At
that point, the "Defaulting Lender" shall no longer be deemed a Defaulting
Lender. After the Senior Loans have been paid in full equitable adjustments will
be made in connection with future payments by the Borrower to the extent a
portion of the Senior Loans had been repaid with amounts that otherwise would
have been distributed to a Defaulting Lender but for the operation of this
Section 12.16. This provision governs only the relationship among the
Administrative Agent, each Defaulting Lender and the other Lenders; nothing
hereunder shall limit the obligation of the Borrower to repay all Loans in
accordance with the terms of this Agreement. The provisions of this Section
12.16 shall apply and be effective regardless of whether a Default occurs and is
continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary, (ii) any instruction of the Borrower as to its desired application of
payments or (iii) the suspension of such Defaulting Lender's right to vote on
matters as provided above.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.1 Successors and Assigns.
The terms and provisions of the Loan Documents shall be
binding upon and inure to the benefit of Borrower and the Lenders and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights or obligations under the Loan Documents without the
consent of all the Lenders and any assignment by any Lender must be made in
compliance with Section 13.3. The Administrative Agent may treat the payee of
any Note as the owner thereof for all purposes hereof unless and until such
payee complies with Section 13.3 in the case of an assignment thereof or, in the
case of any other transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by acceptance
thereof to be bound by all the terms and provisions of the Loan Documents. Any
request, authority or consent of any Person who at the time of making such
request or giving such authority or consent is the holder of any Note, shall be
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conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
13.2 Participations.
13.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Advance owing to such
Lender, any Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents. In the
event of any such sale by a Lender of participating interests to a
Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, such
Lender shall remain the holder of any such Note for all purposes under
the Loan Documents, all amounts payable by Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and Borrower and the Administrative Agent and
the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
the Loan Documents.
13.2.2 Voting Rights. Each Lender shall retain the sole right
to vote its Percentage of the Aggregate Commitment, without the consent
of any Participant, for the approval or disapproval of any amendment,
modification or waiver of any provision of the Loan Documents, provided
that such Lender may grant such Participant the right to approve any
amendment, modification or waiver which forgives principal, interest or
fees or reduces the interest rate or fees payable hereunder, postpones
any date fixed for any regularly-scheduled payment of principal of or
interest on the Obligations, or extends the Maturity Date.
13.3 Assignments.
13.3.1 Permitted Assignments. Subject to the provisions of
Section 12.10 above with respect to First Chicago and UBS, any Lender
may, with the prior written consent of Administrative Agent and
Borrower (which consents shall not be unreasonably withheld or
delayed), in accordance with applicable law, at any time assign to one
or more banks or other entities (collectively, "Purchasers") all or any
part of its rights and obligations under the Loan Documents, except
that no consent of Borrower shall be required if an Event of Default
has occurred and is continuing and that no consent of Administrative
Agent or Borrower shall ever be required for (i) any assignment to a
Person directly or indirectly controlling, controlled by or under
direct or indirect common control with the assigning Lender or (ii) the
pledge or assignment by a Lender of such Lender's Note and other rights
under the Loan Documents to any Federal Reserve Bank in accordance with
applicable law. Such assignments and
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assumptions shall be substantially in the form of Exhibit J hereto. The
Borrower shall execute any and all documents which are customarily
required by such Lender (including, without limitation, a replacement
promissory note or notes in the forms provided hereunder) in connection
with any such assignment, but Borrower shall not be obligated to pay
any fees and expenses incurred by any Lender in connection with any
assignment pursuant to this Section. Any Lender selling all or any part
of its rights and obligation hereunder in a transaction requiring the
consent of the Administrative Agent shall pay to the Administrative
Agent a fee of $3,500.00 per assignee to reimburse Administrative Agent
for its involvement in such assignment.
13.3.2 Effect; Effective Date of Assignment. Upon delivery to
the Administrative Agent of a notice of assignment executed by the
assigning Lender and the Purchaser, such assignment shall become
effective on the effective date specified in such notice of assignment.
The notice of assignment shall contain a representation by the
Purchaser to the effect that none of the consideration used to make the
purchase of the Commitment and the Loan under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights
and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to
this Agreement and any other Loan Document executed by the Lenders and
shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto,
and no further consent or action by Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender
with respect to the percentage of the Commitment and Advances assigned
to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3.2, the transferor Lender, the
Administrative Agent and Borrower shall make appropriate arrangements
so that replacement Notes are issued to such transferor Lender and new
Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment.
13.4 Dissemination of Information. Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of Borrower and General
Partner. Each Transferee shall agree in writing to keep confidential any such
information which is not publicly available.
13.5 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with all applicable provisions of the Code with respect to
withholding and other tax matters.
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ARTICLE XIV
GENERAL PROVISIONS
14.1 Survival of Representations. All representations and
warranties contained in this Agreement shall survive delivery of the
Notes and the making of the Advances herein contemplated.
14.2 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
14.3 Taxes. Any recording and other taxes (excluding franchise,
income or similar taxes) or other similar assessments or charges payable or
ruled payable by any governmental authority incurred in connection with the
consummation of the transactions contemplated by this Agreement shall be paid by
the Borrower, together with interest and penalties, if any.
14.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
14.5 No Third Party Beneficiaries. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
14.6 Expenses; Indemnification. Subject to the provisions of this
Agreement, Borrower will pay (a) all out-of-pocket costs and expenses incurred
by the Administrative Agent and the Arrangers (including the reasonable fees,
out-of-pocket expenses and other reasonable expenses of counsel, which counsel
may be employees of Administrative Agent) in connection with the preparation,
execution and delivery of this Agreement, the Notes, the Loan Documents and any
other agreements or documents referred to herein or therein and any amendments
thereto, (b) all out-of-pocket costs and expenses incurred by the Administrative
Agent and the Lenders (including the reasonable fees, out-of-pocket expenses and
other reasonable expenses of counsel to the Administrative Agent and the
Lenders, which counsel may be employees of Administrative Agent or the Lenders)
in connection with the enforcement and protection of the rights of the Lenders
under this Agreement, the Notes, the Loan Documents or any other agreement or
document referred to herein or therein, and (c) all reasonable and customary
costs and expenses of periodic audits by the Administrative Agent's personnel of
the Borrower's books and records provided that prior to an Event of Default,
Borrower shall be required to pay for only one such audit during any year. The
Borrower further agrees to indemnify the Lenders, their directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and reasonable expenses (including,
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without limitation, all expenses of litigation or preparation therefor whether
or not the Lenders is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Advance hereunder, except that the
foregoing indemnity shall not apply to a Lender to the extent that any losses,
claims, etc. are the result of such Lender's gross negligence or wilful
misconduct. The obligations of the Borrower under this Section shall survive the
termination of this Agreement.
14.7 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
14.8 Nonliability of the Lenders. The relationship between the
Borrower and the Lenders shall be solely that of borrower and lender.
The Lenders shall not have any fiduciary responsibilities to the Borrower. The
Lenders undertake no responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations.
14.9 Choice of Law. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS)
OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
14.10 Consent to Jurisdiction. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDERS TO
BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE LENDERS OR ANY AFFILIATE OF
THE LENDERS INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY
IN A COURT IN CHICAGO, ILLINOIS.
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14.11 Waiver of Jury Trial. THE BORROWER, THE GENERAL PARTNER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED
WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
14.12 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents. Any assignee or transferee of the Notes agrees by acceptance thereof
to be bound by all the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making such request or
giving such authority or consent is the holder of the Notes, shall be conclusive
and binding on any subsequent holder, transferee or assignee of such Notes or of
any note or notes issued in exchange therefor.
14.13 Entire Agreement; Modification of Agreement. The Loan
Documents embody the entire agreement among the Borrower, General Partner,
Administrative Agent, and Lenders and supersede all prior conversations,
agreements, understandings, commitments and term sheets among any or all of
such parties with respect to the subject matter hereof. Any provisions of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower, and Administrative Agent if the
rights or duties of Administrative Agent are affected thereby, and
(a) each of the Lenders if such amendment or waiver
(i) reduces or forgives any payment of principal
or interest on the Obligations or any fees payable by Borrower
to such Lender hereunder; or
(ii) postpones the date fixed for any payment of
principal of or interest on the Obligations or any fees
payable by Borrower to such Lender hereunder; or
(iii) changes the amount of such Lender's
Commitment (other than pursuant to an assignment permitted
under Section 13.3 or a reduction in the Aggregate Commitment
pursuant to Section 2.17 hereof) or the unpaid principal
amount of such Lender's Note; or
(iv) extends the Maturity Date; or
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(v) releases or limits the liability of the
General Partner under the Loan Documents; or
(vi) changes the definition of Majority Lenders
or Supermajority Lenders or modifies any requirement for
consent by each of the Lenders; or
(vii) modifies or waives any covenant contained
in Sections 8.13, 9.3, 9.5, 9.6, 9.8 or 9.10 hereof; or
(b) the Majority Lenders, to the extent expressly provided for
herein; or
(c) the Supermajority Lenders, to the extent expressly
provided for herein and in the case of all other waivers or amendments if no
percentage of Lenders is specified herein.
14.14 Dealings with the Borrower. The Lenders and their affiliates
may accept deposits from, extend credit to and generally engage in any kind of
banking, trust or other business with the Borrower or the General Partner or any
of their Affiliates regardless of the capacity of the Lenders hereunder.
14.15 Set-Off.
(a) If an Event of Default shall have occurred, each Lender
shall have the right, at any time and from time to time without notice to the
Borrower, any such notice being hereby expressly waived, to set-off and to
appropriate or apply any and all deposits of money or property or any other
indebtedness at any time held or owing by such Lender to or for the credit or
the account of the Borrower against and on account of all outstanding
Obligations and all Obligations which from time to time may become due hereunder
and all other obligations and liabilities of the Borrower under this Agreement,
irrespective of whether or not such Lender shall have made any demand hereunder
and whether or not said obligations and liabilities shall have matured.
(b) Each Lender agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of principal, interest or fees due with respect to any
Note held by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal, interest or fees due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders and such other adjustments shall be made as may be
required so that all such payments of principal, interest or Fees with respect
to the Notes held by the Lenders shall be shared by the Lenders pro rata
according to their respective Commitments.
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14.16 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower and each of the Lenders shown on the signature pages hereof.
ARTICLE XV
NOTICES
15.1 Giving Notice. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below or at such other address as may be designated by
such party in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes). Notice may be given as follows:
To the Borrower:
First Industrial, L.P.
c/o First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Mr. Scott Musil
Telecopy: (312) 704-6606
To General Partner:
First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Mr. Michael Havala
Telecopy: (312) 704-6606
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Each of the above with a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: (312) 984-3150
To each Lender:
As shown below the Lenders' signatures.
To the Administrative Agent:
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telecopy: (312) 732-1117
With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
To the Documentation Agent:
Union Bank of Switzerland,
New York Branch
299 Park Avenue
New York, New York 10171-0026
Attention: Howard Margolis
Telecopy: (212) 821-4138
15.2 Change of Address. Each party may change the address for service
of notice upon it by a notice in writing to the other parties hereto.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
BORROWER: FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its General Partner
By: /s/ Gary H. Heigl
------------------------------------------
Title: Senior Vice President - Capital Markets
---------------------------------------
GENERAL PARTNER: FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Gary H. Heigl
------------------------------------------
Title: Senior Vice President - Capital Markets
---------------------------------------
LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Gregory A. Gilbert
------------------------------------------
Title: /s/ Vice - President
---------------------------------------
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
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AMSOUTH BANK
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
1900 5th Avenue, North
AmSouth Sonat Tower, 9th Floor
Birmingham, Alabama 35203
Attention: Buddy Sharbel
Telephone: 205/581-7647
Telecopy: 205/326-4075
BANK OF MONTREAL
By: _____________________________________
Title: __________________________________
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
115 South LaSalle Street, 12 West
Chicago, Illinois 60603
Attention: Cathy Sahagian
Telephone: 312/750-5905
Telecopy: 312/750-4352
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COMERICA BANK
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
500 Woodward
Detroit, Michigan 48226-3256
Attention: David Campbell
Telephone: 313/222-9306
Telecopy: 313/222-9295
COMMERZBANK AG
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
Two World Financial Center
New York, New York 10281
Attention: Doug Traynor
Telephone: 212/266-7569
Telecopy: 212/266-7530
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DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
190 South LaSalle Street, Suite 2700
Chicago, Illinois 60606
Attention: James Blessing, Vice President
Telephone: 312-444-1318
Telecopy: 312/444-1305
U.S. BANK NATIONAL ASSOCIATION, F/K/A AND
D/B/A FIRST BANK NATIONAL ASSOCIATION
By: _____________________________________
Title: __________________________________
Commitment: $25,000,000
Percentage of
Aggregate Commitment: 8.333333333333%
Address for Notices:
U.S. Bank Place
601 Second Avenue South
(MPSP0802)
Minneapolis, Minnesota 55402-4302
Attention: Stephen P. Bailey
Telephone: 612/973-0564
Telecopy: 612/973-0830
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FIRST UNION NATIONAL BANK
By: ________________________________________
Title: _____________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
One First Union Center, DC-6
Charlotte, North Carolina 28288-0166
Attention: John Schissel
Telephone: 704/383-1967
Telecopy: 704/383-6205
KEYBANK NATIONAL ASSOCIATION
By: ________________________________________
Title: _____________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
Commercial Real Estate Division
190 South LaSalle Street, Suite 2840
Chicago, Illinois 60603
Attention: David Bluestone
Telephone: 312/251-3582
Telecopy: 312/251-0687
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LASALLE NATIONAL BANK
By: _____________________________________
Title: __________________________________
Commitment: $15,000,000
Percentage of
Aggregate Commitment: 5.000000000000%
Address for Notices:
135 South LaSalle Street, Suite 1225
Chicago, Illinois 60603
Attention: John Hein
Telephone: 312/904-4330
Telecopy: 312/904-6467
THE NORTHERN TRUST COMPANY
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
50 South LaSalle Street
Chicago, Illinois 60675
Attention: Robert Wiarda
Telephone: 312/444-3380
Telecopy: 312/444-7028
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THE SUMITOMO BANK, LIMITED
By: _____________________________________
Title: __________________________________
Commitment: $20,000,000
Percentage of
Aggregate Commitment: 6.666666666667%
Address for Notices:
277 Park Avenue, 6th Floor
IFD Real Estate Division
New York, New York 10172
Attention: Michael S. Leffelholz
Telephone: 212/224-4190
Telecopy: 212/224-4887
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By: _____________________________________
Title: __________________________________
By: _____________________________________
Title: __________________________________
Commitment: $30,000,000
Percentage of
Aggregate Commitment: 10.000000000000%
Address for Notices:
299 Park Avenue
New York, New York 10171-0026
Attention: Ziomara Martez
Telephone: 212/821-3872
Telecopy: 212/821-4138
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ADMINISTRATIVE AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By: _____________________________________
Title: __________________________________
Address for Notices:
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Division
Telephone: 312/732-2107
Telecopy: 312/732-1117
DOCUMENTATION AGENT: UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By: _____________________________________
Title: __________________________________
By: _____________________________________
Title: __________________________________
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EXHIBIT A
PERCENTAGES
See Percentages on Preceding Signature Pages
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EXHIBIT B-1
FORM OF NOTE
$_________________ _______________, 1997
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of December 15, 1997 (the "Agreement")
between FIRST INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"),
First Industrial Realty Trust, Inc., a Maryland corporation, Union Bank of
Switzerland, New York Branch, individually and as Documentation Agent, The First
National Bank of Chicago, a national bank organized under the laws of the United
States of America, individually and as Administrative Agent for the Lenders (as
such terms are defined in the Agreement), and the other Lenders listed on the
signature pages of the Agreement, Borrower promises to pay to the order of
_________________________ (the "Lender"), or its successors and assigns, the
principal sum of AND NO/100 DOLLARS ($__________) or the aggregate
unpaid principal amount of all Loans (other than Competitive Bid Loans) made
by the Lender to the Borrower pursuant to Section2.1 of the Agreement, in
immediately available funds at the office of the Administrative Agent in
Chicago, Illinois, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrower
shall pay this Promissory Note ("Note") in full on or before the Maturity Date
in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
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Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: _______________________________________________________________________
Its: __________________________________________________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
_______________, 1997
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December 15, 1997 (the "Agreement") between FIRST
INDUSTRIAL, L.P., a Delaware limited partnership ("Borrower"), First Industrial
Realty Trust, Inc., a Maryland corporation, Union Bank of Switzerland, New York
Branch, The First National Bank of Chicago, a national bank organized under the
laws of the United States of America, individually and as Administrative Agent
for the Lenders (as such terms are defined in the Agreement), Borrower promises
to pay to the order of _________________________ (the "Lender"), or its
successors and assigns, the unpaid principal amount of such Competitive Bid Loan
made by the Lender to the Borrower pursuant to Section 2.16 of the Agreement, in
immediately available funds at the office of the Administrative Agent in
Chicago, Illinois, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
any remaining unpaid principal amount of such Competitive Bid Loans under this
Competitive Bid Note ("Note") in full on or before the Maturity Date in
accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. Capitalized terms
used herein and not otherwise defined herein are used with the meanings
attributed to them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
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Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of the
State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: ________________________________
Its: ____________________________
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PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT C-1
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.16(b))
To: The First National Bank of Chicago,
as administrative agent (the "Agent")
From: First Industrial, L.P. (the "Borrower")
Re: Unsecured Revolving Credit Agreement dated as of December 15,
1997 among the Borrower, First Industrial Realty Trust, Inc.,
the lenders from time to time party thereto, Union Bank of
Switzerland and The First National Bank of Chicago, as Agent for
such lenders (as amended, supplemented or otherwise modified
from time to time through the date hereof, the "Agreement")
1. Capitalized terms used herein have the meanings assigned to them in
the Agreement.
2. We hereby give notice pursuant to Section 2.16(b) of the Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount (1) Interest Period 2
3. Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate].
- ----------------
(1) Amount must be at least $10,000,000 and an integral multiple of $1,000,000.
(2) One, two, three or six months (Competitive LIBOR Margin) or up to 180 days
(Absolute Rate), subject to the provisions of the definitions of LIBOR
Interest Period and Absolute Interest Period.
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4. Upon acceptance by the undersigned of any or all of the Competitive
Bid Loans offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of the Borrowing Date thereof the representations and
warranties made in Article VI of the Agreement.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its general
partner
By: ________________________________________
Title: _____________________________________
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EXHIBIT C-2
INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.16(c))
To: Each of the Lenders party to
the Agreement referred to below
From: Invitation for Competitive Bid Quotes to
First Industrial, L.P. (the "Borrower")
Pursuant to Section 2.16(c) of the Unsecured Revolving Credit Agreement
dated as of December 15, 1997 among the Borrower, First Industrial Realty Trust,
Inc., the lenders from time to time party thereto, Union Bank of Switzerland and
The First National Bank of Chicago, as Administrative Agent for such lenders (as
amended, supplemented or otherwise modified from time to time through the date
hereof, the "Agreement"), we are pleased on behalf of the Borrower to invite you
to submit Competitive Bid Quotes to the Borrower for the following proposed
Competitive Bid Loan(s):
Borrowing Date: _______________, 19___
Principal Amount Interest Period
Such Competitive Bid Quotes should offer [a Competitive LIBOR Margin]
[an Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.16(d)
of the Agreement and the foregoing. Capitalized terms used herein have the
meanings assigned to them in the Agreement.
Please respond to this invitation by no later than 9:00 a.m. (Chicago
time) on _______________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO, as
Administrative Agent
By: ________________________________
Title: _____________________________
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EXHIBIT C-3
COMPETITIVE BID QUOTE
(Section 2.16(d))
_______________, 19___
To: The First National Bank of Chicago,
as Administrative Agent
Re: Competitive Bid Quote to First Industrial, L.P.
(the "Borrower")
In response to your invitation on behalf of the Borrower dated
_______________, 19___, we hereby make the following Competitive Bid Quote
pursuant to Section 2.16(d) of the Agreement hereinafter referred to and on the
following terms:
1. Quoting Lender: ____________________________________________________________
2. Person to contact at Quoting Lender: _______________________________________
3. Borrowing Date: ____________________________________________________________
(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, for the following Interest Periods and at the
following rates:
_________________________
(1) As specified in the related Invitation For Competitive Bid Quotes.
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[Competitive
Principal Interest LIBOR [Absolute Minimum
Amount(2) Period(3) Margin(4)] Rate(5)] Amount(6)
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Unsecured
Revolving Credit Agreement dated as of December 15, 1997, among the Borrower,
First Industrial Realty Trust, Inc., the lenders from time to time party
thereto, Union Bank of Switzerland and The First National Bank of Chicago, as
Administrative Agent for such lenders (as amended, supplemented or otherwise
modified from time to time through the date hereof, the "Agreement"),
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part. Capitalized terms used herein and
not otherwise defined herein shall have their meanings as defined in the
Agreement.
Very truly yours,
[NAME OF LENDER]
By:_______________________________
Title:____________________________
___________
(2) Principal amount bid for each Interest Period may not exceed the principal
amount requested. Buds must be made for at least $10,000,000 and integral
multiples of $1,000,000.
(3) One, two, three or six months or up to 180 days, as specified in the related
Invitation For Competitive Bid Quotes.
(4) Competitive LIBOR Margin for the applicable LIBOR Interest Period. Specify
percentage (rounded to the nearest 1/100 of 1%) and specify whether "PLUS" or
"MINUS".
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6) Specify minimum amount, if any, which the Borrower may accept (see
Section 2.16(d)(ii)(d)).
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EXHIBIT D
FORM OF GUARANTY
This Guaranty is made as of December 15, 1997, by First Industrial
Realty Trust, Inc., a Maryland corporation ("Guarantor"), to and for the benefit
of Union Bank of Switzerland, New York Branch, The First National Bank of
Chicago, a national banking association, individually ("First Chicago"), and as
administrative agent for itself and the lenders listed on the signature pages of
the Revolving Credit Agreement (as defined below) and their respective
successors and assigns (collectively, "Lender").
RECITALS
A. First Industrial, L.P., a Delaware limited partnership ("Borrower"),
and Guarantor have requested that Lender make an unsecured revolving credit
facility available to Borrower in the aggregate principal amount of up to
$300,000,000 ("Facility").
B. Lender has agreed to make available the Facility to Borrower pursuant
to the terms and conditions set forth in an Unsecured Revolving Credit Agreement
bearing even date herewith between Borrower, the Lenders and Guarantor
("Revolving Credit Agreement"). All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the
Revolving Credit Agreement.
C. Borrower has executed and delivered to Lender one or more Promissory
Notes each of even date in the aggregate principal amount of $300,000,000 as
evidence of its indebtedness to Lender with respect to the Facility (the
promissory notes described above, together with any amendments or allonges
thereto, or restatements, replacements or renewals thereof, and/or new
promissory notes to new Lenders under the Revolving Credit Agreement, are
collectively referred to herein as the "Note"). Borrower has also executed and
delivered to each Lender a note ("Competitive Loan Note") which evidences any
Competitive Bid Loans which may be made by such Lender under the Revolving
Credit Agreement.
D. Guarantor is the sole general partner of Borrower and, therefore,
Guarantor will derive financial benefit from the Facility evidenced by the Note,
Revolving Credit Agreement and the other Loan Documents. The execution and
delivery of this Guaranty by Guarantor is a condition precedent to the
performance by Lender of its obligations under the Revolving Credit Agreement.
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AGREEMENTS
NOW, THEREFORE, Guarantor, in consideration of the matters described in
the foregoing Recitals, which Recitals are incorporated herein and made a part
hereof, and for other good and valuable consideration, hereby agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees to
Lender:
(a) the full and prompt payment of the principal of and interest
on the Note and/or any Competitive Bid Loan Note when due, whether at
stated maturity, upon acceleration or otherwise, and at all times
thereafter, and the prompt payment of all sums which may now be or may
hereafter become due and owing under the Note, any Competitive Bid Loan
Note, the Revolving Credit Agreement, and the other Loan Documents;
(b) the payment of all Enforcement Costs (as hereinafter defined
in Paragraph 7 hereof); and
(c) the full, complete, and punctual observance, performance,
and satisfaction of all of the obligations, duties, covenants, and
agreements of Borrower under the Revolving Credit Agreement and the Loan
Documents.
All amounts due, debts, liabilities, and payment obligations described in
subparagraphs (a) and (b) of this Paragraph 1 are referred to herein as the
"Facility Indebtedness." All obligations described in subparagraph (c) of this
Paragraph 1 are referred to herein as the "Obligations."
2. In the event of any default by Borrower in making payment of the
Facility Indebtedness, or in performance of the Obligations, as aforesaid, in
each case beyond the expiration of any applicable grace period, Guarantor
agrees, on demand by Lender or the holder of the Note, to pay all the Facility
Indebtedness and to perform all the Obligations as are or then or thereafter
become due and owing or are to be performed under the terms of the Note, any
Competitive Bid Loan Note, the Revolving Credit Agreement and the other Loan
Documents, and to pay any reasonable expenses incurred by Lender in protecting,
preserving, or defending its interest in the Property or in connection with the
Facility or under any of the Loan Documents, including, without limitation, all
reasonable attorneys' fees and costs. Lender shall have the right, at its
option, either before, during or after pursuing any other right or remedy
against Borrower or Guarantor, to perform any and all of the Obligations by or
through any agent, contractor or subcontractor, or any of their agents, of its
selection, all as Lender in its sole discretion deems proper, and Guarantor
shall indemnify and hold Lender free and harmless from and against any and all
loss, damage, cost, expense, injury, or liability Lender may suffer or incur in
connection with the exercise of its rights under this Guaranty or the
performance of the Obligations, except to the extent the same arises as a result
of the gross negligence or wilful misconduct of Lender.
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All of the remedies set forth herein and/or provided by any of the Loan
Documents or law or equity shall be equally available to Lender, and the choice
by Lender of one such alternative over another shall not be subject to question
or challenge by Guarantor or any other person, nor shall any such choice be
asserted as a defense, set-off, or failure to mitigate damages in any action,
proceeding, or counteraction by Lender to recover or seeking any other remedy
under this Guaranty, nor shall such choice preclude Lender from subsequently
electing to exercise a different remedy. The parties have agreed to the
alternative remedies hereinabove specified in part because they recognize that
the choice of remedies in the event of a failure hereunder will necessarily be
and should properly be a matter of business judgment, which the passage of time
and events may or may not prove to have been the best choice to maximize
recovery by Lender at the lowest cost to Borrower and/or Guarantor. It is the
intention of the parties that such choice by Lender be given conclusive effect
regardless of such subsequent developments.
3. Guarantor does hereby waive (i) notice of acceptance of this Guaranty
by Lender and any and all notices and demands of every kind which may be
required to be given by any statute, rule or law, (ii) any defense, right of
set-off or other claim which Guarantor may have against the Borrower or which
Guarantor or Borrower may have against Lender or the holder of the Note or the
holder of any Competitive Bid Loan Note (other than defenses relating to payment
of the Facility Indebtedness or the correctness of any allegation by Lender that
Borrower was in default in the performance of the Obligations),
(iii) presentment for payment, demand for payment (other than as provided for in
Paragraph 2 above), notice of nonpayment (other than as provided for in
Paragraph 2 above) or dishonor, protest and notice of protest, diligence in
collection and any and all formalities which otherwise might be legally required
to charge Guarantor with liability, (iv) any failure by Lender to inform
Guarantor of any facts Lender may now or hereafter know about Borrower, the
Facility, or the transactions contemplated by the Revolving Credit Agreement, it
being understood and agreed that Lender has no duty so to inform and that the
Guarantor is fully responsible for being and remaining informed by the Borrower
of all circumstances bearing on the existence or creation, or the risk of
nonpayment of the Facility Indebtedness or the risk of nonperformance of the
Obligations, and (v) any and all right to cause a marshalling of assets of the
Borrower or any other action by any court or governmental body with respect
thereto, or to cause Lender to proceed against any other security given to
Lender in connection with the Facility Indebtedness or the Obligations. Credit
may be granted or continued from time to time by Lender to Borrower without
notice to or authorization from Guarantor, regardless of the financial or other
condition of the Borrower at the time of any such grant or continuation. Lender
shall have no obligation to disclose or discuss with Guarantor its assessment of
the financial condition of Borrower. Guarantor acknowledges that no
representations of any kind whatsoever have been made by Lender to Guarantor. No
modification or waiver of any of the provisions of this Guaranty shall be
binding upon Lender except as expressly set forth in a writing duly signed and
delivered on behalf of Lender. Guarantor further agrees that any exculpatory
language contained in the Revolving Credit Agreement, the Note and any
Competitive Bid Loan Note
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shall in no event apply to this Guaranty, and will not prevent Lender from
proceeding against Guarantor to enforce this Guaranty.
4. Guarantor further agrees that Guarantor's liability as guarantor shall
in nowise be impaired by any renewals or extensions which may be made from time
to time, with or without the knowledge or consent of Guarantor of the time for
payment of interest or principal under the Note or any Competitive Bid Loan Note
or by any forbearance or delay in collecting interest or principal under the
Note or any Competitive Bid Loan Note, or by any waiver by Lender under the
Revolving Credit Agreement or any other Loan Documents, or by Lender's failure
or election not to pursue any other remedies it may have against Borrower, or by
any change or modification in the Note, Revolving Credit Agreement, any
Competitive Bid Loan Note or any other Loan Documents, or by the acceptance by
Lender of any additional security or any increase, substitution or change
therein, or by the release by Lender of any security or any withdrawal thereof
or decrease therein, or by the application of payments received from any source
to the payment of any obligation other than the Facility Indebtedness, even
though Lender might lawfully have elected to apply such payments to any part or
all of the Facility Indebtedness, it being the intent hereof that Guarantor
shall remain liable as principal for payment of the Facility Indebtedness and
performance of the Obligations until all indebtedness has been paid in full and
the other terms, covenants and conditions of the Revolving Credit Agreement and
other Loan Documents and this Guaranty have been performed, notwithstanding any
act or thing which might otherwise operate as a legal or equitable discharge of
a surety. Guarantor further understands and agrees that Lender may at any time
enter into agreements with Borrower to amend and modify the Note, Revolving
Credit Agreement, any Competitive Bid Loan Note or other Loan Documents, or any
thereof, and may waive or release any provision or provisions of the Note, the
Revolving Credit Agreement, any Competitive Bid Loan Note and other Loan
Documents or any thereof, and, with reference to such instruments, may make and
enter into any such agreement or agreements as Lender and Borrower may deem
proper and desirable, without in any manner impairing this Guaranty or any of
Lender's rights hereunder or any of the Guarantor's obligations hereunder.
5. This is an absolute, unconditional, complete, present and continuing
guaranty of payment and performance and not of collection. Guarantor agrees that
this Guaranty may be enforced by Lender without the necessity at any time of
resorting to or exhausting any other security or collateral given in connection
herewith or with the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any of the other Loan Documents, or resorting to any other
guaranties, and Guarantor hereby waives the right to require Lender to join
Borrower in any action brought hereunder or to commence any action against or
obtain any judgment against Borrower or to pursue any other remedy or enforce
any other right. Guarantor further agrees that nothing contained herein or
otherwise shall prevent Lender from pursuing concurrently or successively all
rights and remedies available to it at law and/or in equity or under the Note,
Revolving Credit Agreement, any Competitive Bid Loan Note or any other Loan
Documents, and the exercise of any of its rights or the completion of any of its
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remedies shall not constitute a discharge of any of Guarantor's obligations
hereunder, it being the purpose and intent of the Guarantor that the obligations
of such Guarantor hereunder shall be primary, absolute, independent and
unconditional under any and all circumstances whatsoever. Neither Guarantor's
obligations under this Guaranty nor any remedy for the enforcement thereof shall
be impaired, modified, changed or released in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of
Borrower under the Note, Revolving Credit Agreement, any Competitive Bid Loan
Note or other Loan Documents or by reason of Borrower's bankruptcy or by reason
of any creditor or bankruptcy proceeding instituted by or against Borrower. This
Guaranty shall continue to be effective and be deemed to have continued in
existence or be reinstated (as the case may be) if at any time payment of all or
any part of any sum payable pursuant to the Note, Revolving Credit Agreement,
any Competitive Bid Loan Note or any other Loan Document is rescinded or
otherwise required to be returned by the payee upon the insolvency, bankruptcy,
or reorganization of the payor, all as though such payment to Lender had not
been made, regardless of whether Lender contested the order requiring the return
of such payment. The obligations of Guarantor pursuant to the preceding sentence
shall survive any termination, cancellation, or release of this Guaranty.
6. This Guaranty shall be assignable by Lender to any assignee of all or
a portion of Lender's rights under the Loan Documents.
7. If: (i) this Guaranty, the Note, any Competitive Bid Loan Note, or any
other Loan Document is placed in the hands of an attorney for collection or is
collected through any legal proceeding; (ii) an attorney is retained to
represent Lender in any bankruptcy, reorganization, receivership, or other
proceedings affecting creditors' rights and involving a claim under this
Guaranty, the Note, any Competitive Bid Loan Note, the Revolving Credit
Agreement, or any Loan Document; (iii) an attorney is retained to provide advice
or other representation with respect to the Loan Documents in connection with an
enforcement action or potential enforcement action; or (iv) an attorney is
retained to represent Lender in any other legal proceedings whatsoever in
connection with this Guaranty, the Note, any Competitive Bid Loan Note, the
Revolving Credit Agreement, any of the Loan Documents, or any property subject
thereto (other than any action or proceeding brought by any Lender or
participant against the Administrative Agent (as defined in the Revolving Credit
Agreement) alleging a breach by the Administrative Agent of its duties under the
Loan Documents), then Guarantor shall pay to Lender upon demand all reasonable
attorney's fees, costs and expenses, including, without limitation, court costs,
filing fees, recording costs, expenses of foreclosure, title insurance premiums,
survey costs, minutes of foreclosure, and all other costs and expenses incurred
in connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder.
8. The parties hereto intend that each provision in this Guaranty
comports with all applicable local, state and federal laws and judicial
decisions. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Guaranty is found by a
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court of law to be in violation of any applicable local, state or federal
ordinance, statute, law, administrative or judicial decision, or public policy,
and if such court should declare such portion, provision or provisions of this
Guaranty to be illegal, invalid, unlawful, void or unenforceable as written,
then it is the intent of all parties hereto that such portion, provision or
provisions shall be given force to the fullest possible extent that they are
legal, valid and enforceable, that the remainder of this Guaranty shall be
construed as if such illegal, invalid, unlawful, void or unenforceable portion,
provision or provisions were not contained therein, and that the rights,
obligations and interest of Lender or the holder of the Note or any Competitive
Bid Loan Note under the remainder of this Guaranty shall continue in full force
and effect.
9. Any indebtedness of Borrower to Guarantor now or hereafter existing is
hereby subordinated to the Facility Indebtedness. Guarantor agrees that until
the entire Facility Indebtedness has been paid in full, (i) Guarantor will not
seek, accept, or retain for Guarantor's own account, any payment from Borrower
on account of such subordinated debt, and (ii) any such payments to Guarantor on
account of such subordinated debt shall be collected and received by Guarantor
in trust for Lender and shall be paid over to Lender on account of the Facility
Indebtedness without impairing or releasing the obligations of Guarantor
hereunder.
10. Guarantor waives and releases any claim (within the meaning of 11
U.S.C. Section 101) which Guarantor may have against Borrower arising from a
payment made by Guarantor under this Guaranty and agrees not to assert or take
advantage of any subrogation rights of Guarantor or Lender or any right of
Guarantor or Lender to proceed against (i) Borrower for reimbursement, or
(ii) any other guarantor or any collateral security or guaranty or right of
offset held by Lender for the payment of the Facility Indebtedness and
performance of the Obligations, nor shall Guarantor seek or be entitled to seek
any contribution or reimbursement from Borrower or any other guarantor in
respect of payments made by Guarantor hereunder. It is expressly understood that
the waivers and agreements of Guarantor set forth above constitute additional
and cumulative benefits given to Lender for its security and as an inducement
for its extension of credit to Borrower. Nothing contained in this Paragraph 10
is intended to prohibit Guarantor from making all distributions to its
constituent shareholders which are required by law from time to time in order
for Guarantor to maintain its status as a real estate investment trust in
compliance with all applicable provisions of the Code (as defined in the
Revolving Credit Agreement).
11. Any amounts received by Lender from any source on account of any
indebtedness may be applied by Lender toward the payment of such indebtedness,
and in such order of application, as Lender may from time to time elect.
12. The Guarantor hereby submits to personal jurisdiction in the State of
Illinois for the enforcement of this Guaranty and waives any and all personal
rights to object to such jurisdiction for the purposes of litigation to enforce
this Guaranty. Guarantor hereby consents
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to the jurisdiction of either the Circuit Court of Cook County, Illinois, or the
United States District Court for the Northern District of Illinois, in any
action, suit, or proceeding which Lender may at any time wish to file in
connection with this Guaranty or any related matter. Guarantor hereby agrees
that an action, suit, or proceeding to enforce this Guaranty may be brought in
any state or federal court in the State of Illinois and hereby waives any
objection which Guarantor may have to the laying of the venue of any such
action, suit, or proceeding in any such court; provided, however, that the
provisions of this Paragraph shall not be deemed to preclude Lender from filing
any such action, suit, or proceeding in any other appropriate forum.
13. All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by telex
or by facsimile and addressed or delivered to such party at its address set
forth below or at such other address as may be designated by such party in a
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid, shall be deemed given when received; any notice, if transmitted
by telex or facsimile, shall be deemed given when transmitted (answerback
confirmed in the case of telexes). Notice may be given as follows:
To the Guarantor:
First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attention: Mr. Michael Havala
Telecopy: (312) 704-6606
With a copy to:
Barack Ferrazzano Kirschbaum & Perlman
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
Attention: Howard A. Nagelberg, Esq.
Telecopy: 312-984-3150
To the Lender:
c/o The First National Bank of Chicago, as agent
One First National Plaza
Chicago, Illinois 60670
Attention: Real Estate Finance Department
Telecopy: (312) 732-1117
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With a copy to:
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
Attention: Patrick G. Moran, Esq.
Telecopy: (312) 876-7934
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice.
14. This Guaranty shall be binding upon the heirs, executors, legal and
personal representatives, successors and assigns of Guarantor and shall inure to
the benefit of Lender's successors and assigns.
15. This Guaranty shall be construed and enforced under the internal laws
of the State of Illinois.
16. GUARANTOR AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS GUARANTY AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has delivered this Guaranty in the State
of Illinois as of the date first written above.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
By:__________________________________
Its_________________________________
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STATE OF ILLINOIS )
)SS.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for said County, in the
State aforesaid, DO HEREBY CERTIFY, that ____________,______________ of First
Industrial Realty Trust, Inc., personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this
day in person and acknowledged that he signed and delivered the said instrument
as his own free and voluntary act and as the free and voluntary act of said
corporation, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this _____ day of December, 1997.
_______________________________
Notary Public
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EXHIBIT E
OPINION OF BORROWER'S COUNSEL
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EXHIBIT F
OPINION OF GENERAL PARTNER'S COUNSEL
Included in Exhibit E
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EXHIBIT G
WIRING INSTRUCTIONS
To: The First National Bank of Chicago,
as Administrative Agent (the "Agent")
under the Credit Agreement Described Below
Re: Unsecured Revolving Credit Agreement, dated as of December 15,
1997 (as amended, modified, renewed or extended from time to
time, the "Agreement"), among First Industrial, L.P. (the
"Borrower"), First Industrial Realty Trust, Inc. ("General
Partner"), The First National Bank of Chicago, individually and
as Administrative Agent, Union Bank of Switzerland, individually
and as Documentation Agent, and the Lenders named therein. Terms
used herein and not otherwise defined shall have the meanings
assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 15.1 of the Agreement or based on any telephonic notice
made in accordance with the Agreement.
Facility Identification Number(s)_______________________________________________
Customer/Account Name___________________________________________________________
Transfer Funds To_______________________________________________________________
_________________________________________
_________________________________________
For Account No. ________________________________________________________________
Reference/Attention To__________________________________________________________
Authorized Officer (Customer Representative) Date ________________________
________________________________________________________________________________
___________________________ ___________________________________
(Please Print) Signature
Bank Officer Name Date ______________________________
____________________________ ___________________________________
(Please Print) Signature
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(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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EXHIBIT H
FORM OF COMPLIANCE CERTIFICATE
To: The Administrative Agent and the Lenders
who are parties to the Agreement described below
This Compliance Certificate is furnished pursuant to that certain
Unsecured Revolving Credit Agreement, dated as of December 15, 1997 (as amended,
modified, renewed or extended from time to time, the "Agreement") among First
Industrial, L.P. (the "Borrower"), First Industrial Realty Trust, Inc. (the
"General Partner"), The First National Bank of Chicago, individually and as
Administrative Agent, Union Bank of Switzerland, individually and as
Documentation Agent, and the Lenders named therein. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate have the meanings
ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected [Chief Financial Officer] [Chief Accounting
Officer] [Controller] of the [Borrower] [General Partner].
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the General Partner, the Borrower and their respective
Subsidiaries and Investment Affiliates during the accounting period covered by
the financial statements attached (or most recently delivered to the
Administrative Agent if none are attached).
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Material Adverse Financial Change, Event of Default or Default during or at
the end of the accounting period covered by the attached financial statements or
as of the date of this Compliance Certificate, except as set forth below.
4. Schedule I (if attached) attached hereto sets forth financial data
and computations and other information evidencing the General Partner's and the
Borrower's compliance with certain covenants of the Agreement, all of which
data, computations and information (or if no Schedule I is attached, the data,
computations and information contained in the most recent Schedule I attached to
a prior Compliance Certificate) are true, complete and correct in all material
respects.
5. The financial statements and reports referred to in Section 8.2(i),
8.2(iii) or 8.2(vii), as the case may be, of the Agreement which are delivered
concurrently with the delivery of this Compliance Certificate, if any, fairly
present in all material respects the consolidated financial condition and
operations of the General Partner, the Borrower and their respective
Subsidiaries at such date and the consolidated results of their operations for
the period then-ended, in accordance with GAAP applied consistently throughout
such period and with prior periods and correctly state the amounts of
Consolidated Total Indebtedness, Consolidated Secured Debt, Consolidated Senior
Unsecured Debt and the Values of all Unencumbered Assets as determined pursuant
to the Agreement.
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Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The foregoing certifications, together with the computations and
information set forth in Schedule I hereto and the financial statements
delivered with this Compliance Certificate in support hereof, are made and
delivered this _____ day of _______________, 19___.
FIRST INDUSTRIAL, L.P.
By: FIRST INDUSTRIAL REALTY TRUST, INC.,
General Partner
By:__________________________________
Print Name:__________________________
Title:_______________________________
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SCHEDULE I
CALCULATION OF COVENANTS
[QUARTER]
1. Permitted Investments (Section 8.3)
<TABLE>
<CAPTION>
Maximum
Percent of Percent of
Implied Implied
Investment Capitalization Capitalization
Category (i.e. Book Value) Value Value
-------- ----------------- ----- -----
<S> <C> <C> <C> <C>
(a) Unimproved Land 10%
(b) other property holdings 10%
(excluding cash, Cash
Equivalents, non-industrial
Properties and Indebtedness
of any Subsidiary to the
Borrower)
(c) stock holdings other than in 10%
Subsidiaries
(d) mortgages 10%
(e) joint ventures and 10%
partnerships
(f) total investments in 20% of Market
(a)-(e) Value Net
Worth
(g) investments in Unimproved 5%
Land not adjacent to existing
improvements and not under
active planning for near term
development as a percentage
of Implied Capitalization
Value
(h) Identify any single industrial property in excess of 5% of Implied
Capitalization Value (If none, insert "none"): _________________________
</TABLE>
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<TABLE>
<S><C>
2. Dividends (Section 8.13)
(a) Amount paid during most recent quarter ________________
(b) Amount paid during preceding three quarters ________________
(c) Funds From Operation during such four quarter period ________________
(i) GAAP net income for such period ________________
(ii) adjustments to GAAP net income per definition of Funds
From Operation (See Schedule) ________________
(iii) Funds From Operation ________________
TOTAL DIVIDEND PAY OUT RATIO [(A) PLUS (B), DIVIDED BY (C)(III)]
Must be less than or equal to: 95%
3. EBITDA To Interest Expense and Senior Preferred Stock Expense (Section 9.8(a))
(a) EBITDA for the quarter most recently ended ________________
(i) Borrower and its Subsidiaries ________________
(ii) less extraordinary items and gain or loss on sales ________________
(iii) less GAAP income from Investment Affiliate ________________
(iv) Allocable EBITDA of Investment Affiliates
(See Schedule) ________________
(v) EBITDA [(I) MINUS (II) MINUS (III) PLUS (IV)] ________________
(b) Interest income deducted from (a) (other than as to Defeased
REMIC Debt) ________________
(c) Interest Expense for the quarter most recently ended ________________
(i) GAAP interest expense (Borrower and Subsidiaries) ________________
(ii) Capitalized interest not covered by interest reserve ________________
(iii) Interest on Guaranteed Obligations ________________
(iv) Allocable Interest (Investment Affiliates) ________________
</TABLE>
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<TABLE>
<S><C>
(v) Interest Expense [SUM OF (I)-(IV)] ________________
(d) Senior Preferred Stock Expense (if required) for the quarter
most recently ended ________________
RATIO
[(A)(V) PLUS (B) DIVIDED BY THE SUM OF (C)(V) AND (D)]: ________________
Must be greater than or equal to: 2.0
4. Consolidated Total Indebtedness Ratio (Section 9.8(b))
(a) Consolidated Total Indebtedness (See Schedule) ________________
(b) Implied Capitalization Value ________________
(i) Adjusted EBITDA for the quarter most recently ended ________________
(ii) less Adjusted EBITDA from Preleased Assets Under
Development and from Projects acquired or completed
during quarter ________________
(iii) plus full quarter pro forma adjustment for Projects
acquired or completed during quarter ________________
(iv) annualized (x4) ________________
(v) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) ________________ %
(vi) (item (iv) divided by item (v)) ________________
(vii) GAAP value of Preleased Assets Under Development ________________
(viii) GAAP value of those over 270 days in category ________________
(ix) 50% of item (vii) less item (viii) ________________
(x) lesser of 5% of Implied Capitalization Value
or $100,000,000 ________________
(xi) lesser of item (ix) and item (x) ________________
(xii) Unrestricted Cash and Unrestricted Cash Equivalents
(less those used to support Defeased REMIC Debt) ________________
(xiii) first mortgage receivables ________________
</TABLE>
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<TABLE>
<S><C>
(xiv) 10% of Implied Capitalization Value ________________
(xv) sum of (vi), (xi), (xii) and lesser of (xiii) or (xiv)
is "Implied Capitalization Value" ________________
CONSOLIDATED TOTAL INDEBTEDNESS RATIO [(A) DIVIDED BY (B) EXPRESSED AS A
PERCENTAGE]: ________________
Must be less than or equal to: 50%
5. Value of Unencumbered Assets Ratio (Section 9.8(c))
(a) Value of Unencumbered Assets
(i) Property Operating Income attributable to
Unencumbered Assets owned by Borrower and
wholly-owned Subsidiaries as of end of quarter as
appropriately annualized (including pro forma Property
Operating Income for entire quarter for Unencumbered
Assets acquired during the quarter) (attach schedule
noting Property Operating Income for each
Unencumbered Asset as appropriately annualized)
(ii) most recent Korpacz Cap Rate (not less than 9% or
more than 9.5%) ________________ %
(iii) item (i) divided by item (ii) is "Value of Unencumbered
Assets" ________________
(b) Consolidated Senior Unsecured Debt (provide schedule of
such Debt) ________________
VALUE OF UNENCUMBERED ASSETS RATIO [(A) DIVIDED BY (B)]:
Must be greater than or equal to: 1.65 (or 1.50 if
quarter ended
during a Rating
Period)
6. Property Operating Income Ratio (Section 9.8(d))
(a) Property Operating Income from all Unencumbered Assets
owned for any part of the preceding quarter ________________
(b) Debt Service on Consolidated Senior Unsecured Debt for the
preceding quarter
</TABLE>
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<TABLE>
<S><C>
(i) Interest Expense (Borrower and Subsidiaries only) ________________
(ii) Regular principal payments (Borrower and Subsidiaries) ________________
(iii) Senior Preferred Stock Expense ________________
(iv) Debt Service [SUM OF (I), (II) AND (III)] ________________
PROPERTY OPERATING INCOME RATIO [(A) DIVIDED BY (B)] ________________
Must be greater than or equal to: 1.75
7. Consolidated Secured Debt and Senior Preferred Stock to Implied
Capitalization Value (Section 9.8(e))
(a) Consolidated Secured Debt
(i) secured Indebtedness of Borrower and Subsidiaries ________________
(ii) unsecured Indebtedness of Subsidiaries in excess of
$5,000,000 ________________
(iii) Consolidated Secured Debt [SUM OF (I) PLUS (II)] ________________
(b) Senior Preferred Stock (excluded after release of PS Guaranty) ________________
(c) Implied Capitalization Value [LINE (XV) IN ITEM 4(B) ABOVE] ________________
(d) (a) plus (b) divided by (c) ________________
Must be less than or equal to: 35%
8. Minimum Market Value Net Worth (Section 9.8(f))
(a) Market Value Net Worth
(i) Implied Capitalization Value
[LINE (XV) IN ITEM 4(B) ABOVE] ________________
(ii) Indebtedness of Borrower and Subsidiaries ________________
(iii) Market Value Net Worth [(I) MINUS (II)] ________________
(b) $622,672,000
(c) product of .75 and net proceeds of stock and unit offerings
since September 30, 1997 ________________
</TABLE>
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<TABLE>
<S><C>
(d) sum of (b) plus (c) ________________
(a)(iii) must be greater than or equal to (d)
9. Maximum Revenue From a Single Tenant (Section 9.11)
(a) 7.5% of Consolidated Operating Partnership's total rent
revenue as of last day of quarter, annualized ________________
(b) Identify any tenant for which rent revenue (exclusive of tenant
reimbursements) as annualized exceeds amount shown in (a) ________________
10. Transfers of Unencumbered Assets (Section 9.5)
(a) Aggregate Value of all Unencumbered Assets transferred
during measuring period ________________
(b) Aggregate Value of Unencumbered Assets at start of current
measuring period (trailing 4 quarters) ________________
(c) Aggregate Value of Unencumbered Assets added during current
measuring period ________________
(d) 20% of sum of (b) and (c) ________________
Item (a) must be less than or equal to Item (d) ________________
NOTE: To the extent of any inconsistency between the form of this
Compliance Certificate and the terms of the Agreement, the
terms of the Agreement shall prevail.
</TABLE>
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EXHIBIT I
SCOPE OF WORK FOR ENVIRONMENTAL INVESTIGATIONS
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EXHIBIT J
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between ________
________________(the "Assignor") and __________________ (the "Assignee") is
dated as of____________, 19 . The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to an Unsecured
Revolving Credit Agreement (which, as it may be amended, modified, renewed or
extended from time to time is herein called the "Credit Agreement") described in
Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement and the other Loan Documents. The aggregate
Commitment (or Loans, if the applicable Commitment has been terminated)
purchased by the Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of Schedule
1 or two (2) Business Days (or such shorter period agreed to by the
Administrative Agent) after a Notice of Assignment substantially in the form of
Exhibit "I" attached hereto has been delivered to the Agent. In no event will
the Effective Date occur if the payments required to be made by the Assignee to
the Assignor on the Effective Date under Sections 4 and 5 hereof are not made on
the proposed Effective Date, unless otherwise agreed to in writing by Assignor
and Assignee. The Assignor will notify the Assignee of the proposed Effective
Date no later than the Business Day prior to the proposed Effective Date. As of
the Effective Date, (i) the Assignee shall have the rights and obligations of a
Lender under the Loan Documents with respect to the rights and obligations
assigned to the Assignee hereunder and (ii) the Assignor shall relinquish its
rights and be released from its corresponding obligations under the Loan
Documents with respect to the rights and obligations assigned to the Assignee
hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In
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consideration for the sale and assignment of Loans hereunder, (i) the Assignee
shall pay the Assignor, on the Effective Date, an amount equal to the principal
amount of the portion of all Adjusted Corporate Base Rate Loans assigned to the
Assignee hereunder and (ii) with respect to each ratable LIBOR Advance and
Competitive Bid Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (a) on the last day of the Interest
Period therefor or (b) on such earlier date agreed to by the Assignor and the
Assignee or (c) on the date on which any such Loan either becomes due (by
acceleration or otherwise) or is prepaid (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the "Fixed Due Date"),
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such Loan assigned to the Assignee which is outstanding on the
Fixed Due Date. If the Assignor and the Assignee agree that the applicable Fixed
Due Date for such Loan shall be the Effective Date, they shall agree, solely for
purposes of dividing interest paid by the Borrower on such Loan, to an alternate
interest rate applicable to the portion of such Loan assigned hereunder for the
period from the Effective Date to the end of the related Interest Period (the
"Agreed Interest Rate") and any interest received by the Assignee in excess of
the Agreed Interest Rate, with respect to such Loan for such period, shall be
remitted to the Assignor. In the event a prepayment of any Loan which is
existing on the Effective Date and assigned by the Assignor to the Assignee
hereunder occurs after the Effective Date but before the applicable Fixed Due
Date, the Assignee shall remit to the Assignor any excess of the funding
indemnification amount paid by the Borrower under Section 4.4 of the Credit
Agreement an account of such prepayment with respect to the portion of such Loan
assigned to the Assignee hereunder over the amount which would have been paid if
such prepayment amount were calculated based on the Agreed Interest Rate and
only covered the portion of the Interest Period after the Effective Date. The
Assignee will promptly remit to the Assignor (i) the portion of any principal
payments assigned hereunder and received from the Administrative Agent with
respect to any such Loan prior to its Fixed Due Date and (ii) any amounts of
interest on Loans and fees received from the Administrative Agent which relate
to the portion of the Loans assigned to the Assignee hereunder for periods prior
to the Effective Date, in the case of ratable Adjusted Corporate Base Rate Loans
or Fees, or the Fixed Due Date, in the case of LIBOR Loans and Competitive Bid
Loans, and not previously paid by the Assignee to the Assignor.]* In the event
that either party hereto receives any payment to which the other party hereto is
entitled under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the Assignor
a fee on each day on which a payment of interest or Commitment Fees or Facility
Fees is made under the Credit Agreement with respect to the amounts assigned to
the Assignee hereunder (other than a payment of interest or Commitment Fees or
Facility Fees attributable to the period prior to the Effective Date or, in the
case of LIBOR Loans and Competitive Bid Loans, the Payment Date, which the
Assignee is obligated to deliver to the Assignor pursuant to Section 4 hereof).
The amount of such fee shall be the difference between (i) the interest or fee,
as applicable, paid with respect to the amounts assigned to the Assignee
hereunder and (ii) the interest or fee, as applicable, which would have been
paid with respect to the amounts
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assigned to the Assignee hereunder if each interest rate was calculated at the
rate of % rather than the actual percentage used to calculate the interest
rate paid by the Borrower or if the Commitment Fee or Facility Fee was
calculated at the rate of % rather than the actual percentage used to
calculate the Commitment Fee or Facility Fee paid by the Borrower, as
applicable. In addition, the Assignee agrees to pay ___% of the fee required
to be paid to the Agent in connection with this Assignment Agreement. [THIS
SENTENCE CAN BE REVISED APPROPRIATELY BASED ON HOW THE FEE IS BEING PAID.]
*EACH ASSIGNOR MAY INSERT ITS STANDARD PROVISIONS IN LIEU OF THE PAYMENT TERMS
INCLUDED IN SECTIONS 4 AND 5 OF THIS EXHIBIT.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, its Subsidiaries or Investment
Affiliates, (vi) the validity, enforceability, perfection, priority, condition,
value or sufficiency of any collateral securing or purporting to secure the
Loans or (vii) any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms that it
has received a copy of the Credit Agreement and the other Loan Documents,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Documentation Agent, the Assignor or any other Lender and based on
such documents and information at it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, (iii) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Loan Documents as are delegated to the Administrative Agent by the terms
thereof, together with such powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (v) agrees that its
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payment instructions and notice instructions are as set forth in the attachment
to Schedule 1, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be "plan assets" under ERISA, [AND (VII)
ATTACHES THE FORMS PRESCRIBED BY THE INTERNAL REVENUE SERVICE OF THE UNITED
STATES CERTIFYING THAT THE ASSIGNEE IS ENTITLED TO RECEIVE PAYMENTS UNDER THE
LOAN DOCUMENTS WITHOUT DEDUCTION OR WITHHOLDING OF ANY UNITED STATES FEDERAL
INCOME TAXES].**
**TO BE INSERTED IF THE ASSIGNEE IS NOT INCORPORATED UNDER THE LAWS OF THE
UNITED STATES, OR A STATE THEREOF.
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 13.3.1 of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under Sections 4, 5 and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice
of Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
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13. NOTICES. Notices shall be given under this Assignment Agreement in
the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto until notice of a change is delivered) shall be
the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:_______________________________
Title:____________________________
____________________________
____________________________
[NAME OF ASSIGNEE]
By:_______________________________
Title:____________________________
____________________________
____________________________
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SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
<TABLE>
<S><C>
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________ , 19___
3. Amounts (As of Date of Item 2 above):
a. Aggregate Commitment
(Loans)* under
Credit Agreement $______________
b. Assignee's Percentage
of the Aggregate Commitment
purchased under this
Assignment Agreement** ______________ %
4. Amount of Assignee's Commitment (Loan Amount)*
Purchased under this Assignment Agreement: $_______________
5. Amount of Assignor's Commitment (Loan Amount)
After Purchase under this Assignment Agreement _______________
6. Proposed Effective Date: _______________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_______________________ By:___________________________
Title:____________________ Title:________________________
</TABLE>
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
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ATTACHMENT TO SCHEDULE 1 TO
ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must include
notice address and account information for the Assignor and the Assignee
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EXHIBIT "I" TO
ASSIGNMENT AGREEMENT
NOTICE OF ASSIGNMENT
__________ , 19____
To: [NAME OF ADMINISTRATIVE AGENT]
_______________________
_______________________
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Unsecured Revolving Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to Section 13.3.1 of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ________, 19__ (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstandings, rights and obligations under the Credit Agreement. From and after
such purchase, the Assignee's Commitment shall be the amount specified in Item
4 of Schedule 1 and the Assignor's Commitment shall be the amount specified in
Item 5 of Schedule 1. The Effective Date of the Assignment shall be the later
of the date specified in Item 5 of Schedule 1 or two (2) Business Days (or such
shorter period as agreed to by the Administrative Agent) after this Notice of
Assignment and any fee required by Section 13.3.1 of the Credit Agreement have
been delivered to the Administrative Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee or set forth in Section 13 of the Credit Agreement has not been
satisfied.
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4. The Assignor and the Assignee hereby give to the Administrative Agent
notice of the assignment and delegation referred to herein. The Assignor will
confer with the Administrative Agent before the date specified in Item 6 of
Schedule 1 to determine if the Assignment Agreement will become effective on
such date pursuant to Section 3 hereof, and will confer with the Administrative
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent if the Assignment
Agreement does not become effective on any proposed Effective Date as a result
of the failure to satisfy the conditions precedent agreed to by the Assignor and
the Assignee. At the request of the Administrative Agent, the Assignor will give
the Administrative Agent written confirmation of the satisfaction of the
conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on
or before the Effective Date the processing fee of $3,500 required by
Section 13.3.1 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and the
Assignee request and direct that the Administrative Agent prepare and cause the
Borrower to execute and deliver new Notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Administrative Agent the original Note
received by it from the Borrower upon its receipt of a new Note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Administrative Agent has no duty to supply information
with respect to the Borrower or the Loan Documents to the Assignee until the
Assignee becomes a party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:____________________________ By:_________________________________
Title:_________________________ Title:______________________________
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ACKNOWLEDGED AND CONSENTED TO
BY THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:____________________________
Title:_________________________
[ATTACH PHOTOCOPY OF SCHEDULE 1 TO ASSIGNMENT]
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EXHIBIT K
FORM OF DESIGNATION AGREEMENT
Dated _____________, 199__
Reference is made to the Unsecured Revolving Credit Agreement dated as
of December 15, 1997 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement") among First Industrial, L.P., a Delaware
limited partnership (the "Borrower"), First Industrial Realty Trust, Inc., the
Lenders parties thereto, Union Bank of Switzerland, New York Branch, as
Documentation Agent and The First National Bank of Chicago, as Administrative
Agent (the "Administrative Agent") for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNATED LENDER] (the
"Designee"), the Administrative Agent and the Borrower agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Loans pursuant
to Section 2.16 of the Credit Agreement. Any assignment by Designor to Designee
of its rights to make a Competitive Bid Loan pursuant to such Section 2.16 shall
be effective at the time of the funding for such Competitive Bid Loan and not
before such time.
2. Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument and document furnished pursuant
thereto and (b) the financial condition of the Borrower or General Partner or
the performance or observance by the Borrower or General Partner of any of their
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto. (It is acknowledged that the Designor may
make representations and warranties of the type described above in other
agreements to which the Designor is a party).
3. The Designee (a) confirms that it has received a copy of each Loan
Document, together with copies of the financial statements referred to in
Section 8.2 of the Credit Agreement and such other documents and information as
it has deemed appropriate to make its own independent credit analysis and
decision to enter into this Designation Agreement, (b) agrees that it will,
independently and without reliance upon the Administrative Agent, the Designor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under any Loan Document; (c) confirms that it is a Designated
Lender; (d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise
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such powers and discretion under any Loan Document as are delegated to
the Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto, and (e) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of any Loan Document are required to be performed by it as a Lender.
4. The Designee hereby appoints the Designor as the Designee's agent and
attorney in fact, and grants to the Designor an irrevocable power of attorney,
to deliver and receive all communications and notices under the Credit Agreement
and other Loan Documents and to exercise on the Designee's behalf all rights to
vote and to grant and make approvals, waivers, consents or amendment to or under
the Credit Agreement or other Loan Documents. Any document executed by the
Designor on the Designee's behalf in connection with the Credit Agreement or
other Loan Documents shall be binding on the Designee. The Borrower, the
Administrative Agent and each of the Lenders may rely on and are beneficiaries
of the preceding provisions.
5. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Administrative Agent for
acceptance and recording by the Administrative Agent and the Borrower. The
effective date for this Designation Agreement (the "Effective Date") shall be
the date of acceptance hereof by the Administrative Agent and the Borrower,
unless otherwise specified on the signature page thereto.
6. The Administrative Agent shall not institute or join any other person
in instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the Maturity Date.
7. The Borrower shall not institute or join any other person in
instituting against the Designee any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other proceeding under any federal or
state bankruptcy or similar law, for one year and a day after the Maturity Date.
8. The Designor unconditionally agrees to pay or reimburse the Designee
and save the Designee harmless against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed or asserted by any of the
parties to the Loan Documents against the Designee, in its capacity as such, in
any way relating to or arising out of this Designation Agreement or any other
Loan Documents or any action taken or omitted by the Designee hereunder or
thereunder, provided that the Designor shall not be liable for any portion of
such liabilities, obligations, losses, damage, penalties, actions, judgments,
suits, costs, expenses or disbursements if the same results from the Designee's
gross negligence or willful misconduct.
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9. Upon such acceptance and recording of this Designation Agreement by
the Borrower and the Administrative Agent, as of the Effective Date, the
Designee shall be entitled to the benefits of the Credit Agreement with a right
to fund and receive payment of the principal and interest on Competitive Bid
Loans pursuant to Section 2.16 of the Credit Agreement and otherwise with the
rights and obligations of a Participant of Designor thereunder.
10. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without reference to the
provisions thereof regarding conflicts of law.
11. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by facsimile
transmission shall be effective as of delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee, intending to be
legally bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date(7)_____________________, _______, 199____
[NAME OF DESIGNOR], as Designor
By:_________________________________
Title:______________________________
[NAME OF DESIGNATED LENDER],
as Designee
By:_________________________________
Title:______________________________
_____________
(7) This date should be no earlier than five Business Days after the delivery of
this Designation Agreement to the Administrative Agent.
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Applicable Lending Office (and address
for notices):
[ADDRESS]
Accepted this ____ day of _______________, 199__
[AGENT], as Administrative Agent [FIRST INDUSTRIAL, L.P.]
By: FIRST INDUSTRIAL REALTY
TRUST, INC., its general partner
By:_____________________________ By:__________________________________
Title:__________________________ Title:_____________________________
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SCHEDULE 6.9
LITIGATION (BORROWER)
NONE
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SCHEDULE 6.19
ENVIRONMENTAL COMPLIANCE
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SCHEDULE 6.24
TRADE NAMES
First Industrial (Michigan), Limited Partnership
First Industrial (Minnesota), Limited Partnership
First Industrial (Tennessee), L.P.
First Industrial Realty, Inc.
First Industrial Development Services
First Industrial (Alabama), Limited Partnership
First Industrial, Limited Partnership
First Industrial Realty, Inc.
First Industrial Financing Partnership (Alabama), Limited Partnership
First Industrial Financing Partnership, Limited Partnership
First Industrial Financing Partnership (Minnesota), Limited Partnership
First Industrial Financial Partnership (Wisconsin), Limited Partnership
First Industrial MP, L.P. dba First Industrial Mortgage Partnership, L.P.
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SCHEDULE 6.25
SUBSIDIARIES (BORROWER)
First Industrial Financing Partnership, L.P., a Delaware limited partnership*
First Industrial Pennsylvania, L.P., a Delaware limited partnership*
First Industrial Harrisburg, L.P., a Delaware limited partnership*
First Industrial Securities, L.P., a Delaware limited partnership*
First Industrial Mortgage Partnership, L.P., a Delaware limited partnership*
First Industrial Indianapolis Partnership, L.P., a Delaware limited partnership*
First Industrial Development Services, L.P., a Delaware limited partnership*
FI Development Services Group, L.P., a Delaware limited partnership*
NOTE: For property ownership information, see Exhibit 1 to this Schedule 6.25.
* Borrower owns 99% limited partnership interest in this entity.
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SCHEDULE 6.26
UNENCUMBERED ASSETS
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SCHEDULE 7.8
LITIGATION (GENERAL PARTNER)
NONE
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SCHEDULE 7.18
SUBSIDIARIES (GENERAL PARTNER)
1. FI Development Services Corporation, a Maryland corporation
2. First Industrial Finance Corporation, a Maryland corporation
3. First Industrial Management Corporation, a Maryland corporation
4. FR Acquisitions, Inc., a Maryland corporation
5. First Industrial Pennsylvania Corporation, a Maryland corporation
6. First Industrial Harrisburg Corporation, a Maryland corporation
7. First Industrial Securities Corporation, a Maryland corporation
8. First Industrial Mortgage Corporation, a Maryland corporation
9. First Industrial Indianapolis Corporation, a Maryland corporation
NOTE:
1. Each of these entities is 100% wholly owned by the General Partner.
2. None of these entities owns any properties.
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TABLE OF CONTENTS
<TABLE>
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS..................................................................... 2
1.1 Definitions..................................................................................... 2
1.2 Financial Standards............................................................................. 19
ARTICLE II THE FACILITY........................................................................................ 19
2.1 The Facility.................................................................................... 19
2.2 Principal Payments and Extension Option......................................................... 20
2.3 Requests for Advances; Responsibility for Advances.............................................. 21
2.4 Evidence of Credit Extensions................................................................... 21
2.5 Ratable and Non-Pro Rata Loans.................................................................. 21
2.6 Applicable Margins.............................................................................. 21
2.7 Other Fees...................................................................................... 22
2.8 Minimum Amount of Each Advance.................................................................. 22
2.9 Interest........................................................................................ 22
2.10 Selection of Rate Options and LIBOR Interest Periods............................................ 23
2.11 Method of Payment............................................................................... 25
2.12 Default......................................................................................... 26
2.13 Lending Installations........................................................................... 26
2.14 Non-Receipt of Funds by Administrative Agent.................................................... 26
2.15 Swingline Loans................................................................................. 27
2.16 Competitive Bid Loans........................................................................... 28
2.17 Voluntary Reduction of Aggregate Commitment Amount.............................................. 32
2.18 Application of Moneys Received.................................................................. 32
ARTICLE III THE LETTER OF CREDIT SUBFACILITY................................................................... 33
3.1 Obligation to Issue............................................................................. 33
3.2 Types and Amounts............................................................................... 34
3.3 Conditions...................................................................................... 34
3.4 Procedure for Issuance of Facility Letters of Credit............................................ 35
3.5 Reimbursement Obligations; Duties of Issuing Bank............................................... 36
3.6 Participation................................................................................... 37
3.7 Payment of Reimbursement Obligations............................................................ 38
3.8 Compensation for Facility Letters of Credit..................................................... 39
3.9 Letter of Credit Collateral Account............................................................. 39
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
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ARTICLE IV CHANGE IN CIRCUMSTANCES............................................................................. 40
4.1 Yield Protection................................................................................ 40
4.2 Changes in Capital Adequacy Regulations......................................................... 41
4.3 Availability of LIBOR Advances.................................................................. 41
4.4 Funding Indemnification......................................................................... 42
4.5 Lender Statements; Survival of Indemnity........................................................ 42
ARTICLE V CONDITIONS PRECEDENT................................................................................. 42
5.1 Conditions Precedent to Closing................................................................. 42
5.2 Conditions Precedent to Subsequent Advances..................................................... 45
ARTICLE VI REPRESENTATIONS AND WARRANTIES...................................................................... 46
6.1 Existence....................................................................................... 46
6.2 Corporate/Partnership Powers.................................................................... 46
6.3 Power of Officers............................................................................... 46
6.4 Government and Other Approvals.................................................................. 46
6.5 Solvency........................................................................................ 47
6.6 Compliance With Laws............................................................................ 47
6.7 Enforceability of Agreement..................................................................... 47
6.8 Title to Property............................................................................... 47
6.9 Litigation...................................................................................... 48
6.10 Events of Default............................................................................... 48
6.11 Investment Company Act of 1940.................................................................. 48
6.12 Public Utility Holding Company Act.............................................................. 48
6.13 Regulation U.................................................................................... 48
6.14 No Material Adverse Financial Change............................................................ 48
6.15 Financial Information........................................................................... 48
6.16 Factual Information............................................................................. 49
6.17 ERISA........................................................................................... 49
6.18 Taxes........................................................................................... 49
6.19 Environmental Matters........................................................................... 49
6.20 Insurance....................................................................................... 50
6.21 No Brokers...................................................................................... 50
6.22 No Violation of Usury Laws...................................................................... 51
</TABLE>
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(CONTINUED)
<TABLE>
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6.23 Not a Foreign Person............................................................................ 51
6.24 No Trade Name................................................................................... 51
6.25 Subsidiaries.................................................................................... 51
6.26 Unencumbered Assets............................................................................. 51
ARTICLE VII ADDITIONAL REPRESENTATIONS AND WARRANTIES.......................................................... 53
7.1 Existence....................................................................................... 53
7.2 Corporate Powers................................................................................ 53
7.3 Power of Officers............................................................................... 53
7.4 Government and Other Approvals.................................................................. 54
7.5 Compliance With Laws............................................................................ 54
7.6 Enforceability of Agreement..................................................................... 54
7.7 Liens; Consents................................................................................. 54
7.8 Litigation...................................................................................... 54
7.9 Events of Default............................................................................... 54
7.10 Investment Company Act of 1940.................................................................. 54
7.11 Public Utility Holding Company Act.............................................................. 55
7.12 No Material Adverse Financial Change............................................................ 55
7.13 Financial Information........................................................................... 55
7.14 Factual Information............................................................................. 55
7.15 ERISA........................................................................................... 55
7.16 Taxes........................................................................................... 55
7.17 No Brokers...................................................................................... 55
7.18 Subsidiaries.................................................................................... 56
7.19 Status.......................................................................................... 56
ARTICLE VIII AFFIRMATIVE COVENANTS............................................................................. 56
8.1 Notices......................................................................................... 56
8.2 Financial Statements, Reports, Etc.............................................................. 57
8.3 Existence and Conduct of Operations............................................................. 59
8.4 Maintenance of Properties....................................................................... 60
8.5 Insurance....................................................................................... 60
8.6 Payment of Obligations.......................................................................... 60
8.7 Compliance with Laws............................................................................ 60
8.8 Adequate Books.................................................................................. 60
</TABLE>
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(CONTINUED)
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8.9 ERISA........................................................................................... 61
8.10 Maintenance of Status........................................................................... 61
8.11 Use of Proceeds................................................................................. 61
8.12 Pre-Acquisition Environmental Investigations.................................................... 61
ARTICLE IX NEGATIVE COVENANTS.................................................................................. 61
9.1 Change in Business.............................................................................. 61
9.2 Change of Management of Properties.............................................................. 62
9.3 Change of Borrower Ownership or Financing Partnership Ownership................................. 62
9.4 Use of Proceeds................................................................................. 62
9.5 Transfers of Unencumbered Assets................................................................ 62
9.6 Liens........................................................................................... 62
9.7 Regulation U.................................................................................... 63
9.8 Indebtedness and Cash Flow Covenants............................................................ 63
9.9 Mergers and Dispositions........................................................................ 64
9.10 Negative Pledge................................................................................. 64
9.11 Maximum Revenue from Single Tenant.............................................................. 65
ARTICLE X DEFAULTS............................................................................................. 65
10.1 Nonpayment of Principal......................................................................... 65
10.2 Certain Covenants............................................................................... 65
10.3 Nonpayment of Interest and Other Obligations.................................................... 65
10.4 Cross Default................................................................................... 65
10.5 Loan Documents.................................................................................. 65
10.6 Representation or Warranty...................................................................... 66
10.7 Covenants, Agreements and Other Conditions...................................................... 66
10.8 No Longer General Partner....................................................................... 66
10.9 Material Adverse Financial Change............................................................... 66
10.10 Bankruptcy...................................................................................... 66
10.11 Legal Proceedings............................................................................... 67
10.12 ERISA........................................................................................... 67
10.13 REMIC Loan...................................................................................... 67
10.14 Failure to Satisfy Judgments.................................................................... 67
10.15 Environmental Remediation....................................................................... 67
</TABLE>
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(CONTINUED)
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ARTICLE XI ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................................................... 68
11.1 Acceleration.................................................................................... 68
11.2 Preservation of Rights; Amendments.............................................................. 68
ARTICLE XII THE ADMINISTRATIVE AGENT........................................................................... 69
12.1 Appointment..................................................................................... 69
12.2 Powers.......................................................................................... 69
12.3 General Immunity................................................................................ 69
12.4 No Responsibility for Loans, Recitals, etc...................................................... 69
12.5 Action on Instructions of Lenders............................................................... 69
12.6 Employment of Administrative Agents and Counsel................................................. 70
12.7 Reliance on Documents; Counsel.................................................................. 70
12.8 Administrative Agent's Reimbursement and Indemnification........................................ 70
12.9 Rights as a Lender.............................................................................. 70
12.10 Commitment as a Lender.......................................................................... 71
12.11 Lender Credit Decision.......................................................................... 71
12.12 Successor Administrative Agent.................................................................. 71
12.13 Notice of Defaults.............................................................................. 72
12.14 Requests for Approval........................................................................... 72
12.15 Copies of Documents............................................................................. 72
12.16 Defaulting Lenders.............................................................................. 72
ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................................................. 73
13.1 Successors and Assigns.......................................................................... 73
13.2 Participations.................................................................................. 74
13.2.1 Permitted Participants; Effect.................................................................. 74
13.2.2 Voting Rights................................................................................... 74
13.3 Assignments..................................................................................... 74
13.3.1 Permitted Assignments........................................................................... 74
13.3.2 Effect; Effective Date of Assignment............................................................ 75
13.4 Dissemination of Information.................................................................... 75
13.5 Tax Treatment................................................................................... 75
ARTICLE XIV GENERAL PROVISIONS................................................................................. 76
</TABLE>
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<PAGE> 152
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
14.1 Survival of Representations..................................................................... 76
14.2 Governmental Regulation......................................................................... 76
14.3 Taxes........................................................................................... 76
14.4 Headings........................................................................................ 76
14.5 No Third Party Beneficiaries.................................................................... 76
14.6 Expenses; Indemnification....................................................................... 76
14.7 Severability of Provisions...................................................................... 77
14.8 Nonliability of the Lenders..................................................................... 77
14.9 Choice of Law................................................................................... 77
14.10 Consent to Jurisdiction......................................................................... 77
14.11 Waiver of Jury Trial............................................................................ 78
14.12 Successors and Assigns.......................................................................... 78
14.13 Entire Agreement; Modification of Agreement..................................................... 78
14.14 Dealings with the Borrower...................................................................... 79
14.15 Set-Off......................................................................................... 79
14.16 Counterparts.................................................................................... 79
ARTICLE XV NOTICES............................................................................................. 80
15.1 Giving Notice................................................................................... 80
15.2 Change of Address............................................................................... 81
</TABLE>
EXHIBITS
- --------
A - Percentages
B-1 - Form of Note
B-2 - Form of Competitive Bid Note
C-1 - Form of Competitive Bid Quote Request
C-2 - Invitation for Competitive Bid Quotes
C-3 - Competitive Bid Quote
D - Form of Guaranty
E - Opinion of Borrower's Counsel
F - Opinion of General Partner's Counsel
G - Wiring Instructions
H - Form of Compliance Certificate
I - Scope of Work for Environmental Investigations
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<PAGE> 153
TABLE OF CONTENTS
(CONTINUED)
PAGE
J - Form of Assignment Agreement
K - Form of Designation Agreement
SCHEDULES
- ---------
6.9 Litigation (Borrower)
6.19 Environmental Compliance
6.24 Trade Names
6.25 Subsidiaries (Borrower)
6.26 Unencumbered Assets
7.8 Litigation (General Partner)
7.18 Subsidiaries (General Partner)
-vii-
<PAGE> 1
EXHIBIT 10.1
FIRST INDUSTRIAL, L.P.
SIXTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE
SECURITIES LAWS PURSUANT TO A REGISTRATION OR EXEMPTION THEREFROM.
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I - INTERPRETIVE PROVISIONS
Section 1.1 Certain Definitions .................................. 1
Section 1.2 Rules of Construction ................................12
ARTICLE II - CONTINUATION
Section 2.1 Continuation .........................................13
Section 2.2 Name .................................................13
Section 2.3 Place of Business; Registered Agent ..................14
ARTICLE III - BUSINESS PURPOSE
Section 3.1 Business .............................................14
Section 3.2 Authorized Activities ................................14
ARTICLE IV - CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions ................................14
Section 4.2 Additional Partnership Interests .....................15
Section 4.3 No Third Party Beneficiaries .........................15
Section 4.4 Capital Accounts .....................................15
Section 4.5 Return of Capital Account; Interest ..................17
Section 4.6 Preemptive Rights ....................................17
Section 4.7 REIT Share Purchases .................................17
ARTICLE V - ALLOCATIONS AND DISTRIBUTIONS
Section 5.1 Limited Liability ....................................17
Section 5.2 Profits, Losses and Distributive Shares ..............18
Section 5.3 Distributions ........................................23
Section 5.4 Distribution upon Redemption..........................24
Section 5.5 Distributions upon Liquidation .......................24
Section 5.6 Amounts Withheld .....................................24
ARTICLE VI - PARTNERSHIP MANAGEMENT
Section 6.1 Management and Control of Partnership Business........25
Section 6.2 No Management by Limited Partners; Limitation
of Liability .........................................25
Section 6.3 Limitations on Partners ..............................26
Section 6.4 Business with Affiliates .............................26
Section 6.5 Compensation; Reimbursement of Expenses ..............26
Section 6.6 Liability for Acts and Omissions .....................27
Section 6.7 Indemnification ......................................27
ARTICLE VII - ADMINISTRATIVE, FINANCIAL AND TAX MATTERS
Section 7.1 Books and Records ....................................28
Section 7.2 Annual Audit and Accounting ..........................28
Section 7.3 Partnership Funds ....................................28
Section 7.4 Reports and Notices ..................................28
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<PAGE> 3
Page
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Section 7.5 Tax Matters ..........................................29
Section 7.6 Withholding ..........................................29
ARTICLE VIII - TRANSFER OF PARTNERSHIP INTERESTS; ADMISSIONS
OF PARTNERS
Section 8.1 Transfer by General Partner ..........................30
Section 8.2 Obligations of a Prior General Partner ...............30
Section 8.3 Successor General Partner ............................30
Section 8.4 Restrictions on Transfer and Withdrawal by Limited
Partner ..............................................30
Section 8.5 Substituted Limited Partner ..........................31
Section 8.6 Timing and Effect of Transfers .......................32
Section 8.7 Additional Limited Partners ..........................32
Section 8.8 Amendment of Agreement and Certificate ...............32
ARTICLE IX - REDEMPTION
Section 9.1 Right of Redemption ..................................32
Section 9.2 Timing of Redemption .................................33
Section 9.3 Redemption Price .....................................33
Section 9.4 Assumption of Redemption Obligation ..................34
Section 9.5 Further Assurances; Certain Representations ..........34
Section 9.6 Effect of Redemption .................................34
Section 9.7 Registration Rights ..................................34
ARTICLE X - DISSOLUTION AND LIQUIDATION
Section 10.1 Term and Dissolution .................................35
Section 10.2 Liquidation of Partnership Assets ....................35
Section 10.3 Effect of Treasury Regulations .......................36
Section 10.4 Time for Winding-Up ..................................37
ARTICLE XI - AMENDMENTS AND MEETINGS
Section 11.1 Amendment Procedure ..................................37
Section 11.2 Meetings and Voting ..................................38
Section 11.3 Voting of LB Units....................................38
ARTICLE XII - MISCELLANEOUS PROVISIONS
Section 12.1 Title to Property ....................................38
Section 12.2 Other Activities of Limited Partners .................38
Section 12.3 Power of Attorney ....................................39
Section 12.4 Notices ..............................................40
Section 12.5 Further Assurances ...................................40
Section 12.6 Titles and Captions ..................................40
Section 12.7 Applicable Law .......................................40
Section 12.8 Binding Agreement ....................................40
Section 12.9 Waiver of Partition ..................................40
Section 12.10 Counterparts and Effectiveness .......................40
Section 12.11 Survival of Representations ..........................40
Section 12.12 Entire Agreement .....................................41
-ii-
<PAGE> 4
Exhibit 1A - First Highland Partners
Exhibit 1B - Schedule of Partners
Exhibit 1C - LB Partners
Exhibit 1D - Contributor Partners
Exhibit 2 - Form of Redemption Notice
Exhibit 3 - Form of Registration Rights Agreement
<PAGE> 5
FIRST INDUSTRIAL, L.P.
SIXTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
The undersigned, being the sole general partner of First Industrial, L.P.
(the "Partnership"), a limited partnership formed under the Delaware Revised
Uniform Limited Partnership Act, does hereby amend and restate the Fifth Amended
and Restated Partnership Agreement (as described below) this 18th day of March
1998 as follows:
R E C I T A L S:
A. The Partnership was formed pursuant to a Certificate of Limited
Partnership filed on November 23, 1993 with the Secretary of State of the State
of Delaware under the name "ProVest, L.P." and a Limited Partnership Agreement
dated November 23, 1993 (the "Original Partnership Agreement").
B. The Original Partnership Agreement was amended and restated as of
January 28, 1994 (such amended and restated partnership agreement, the "Prior
Partnership Agreement").
C. A Second Amended and Restated Limited Partnership Agreement was executed
as of June 30, 1994, a Third Amended and Restated Partnership Agreement was
executed as of May 14, 1997, a Fourth Amended and Restated Partnership Agreement
was executed as of June 6, 1997 and a Fifth Amended and Restated Partnership
Agreement was executed as of February 4, 1998 (the "Fifth Partnership
Agreement").
D. The General Partner desires to amend and restate the Fifth Partnership
Agreement to (i) reflect the interests granted to the Class E Limited Partner
(as hereinafter defined) and (ii) set forth the understandings and agreements,
including certain rights and obligations, among the Partners (as hereinafter
defined) with respect to the Partnership.
- --------------------------------------------------------------------------------
ARTICLE I - INTERPRETIVE PROVISIONS
- --------------------------------------------------------------------------------
SECTION 1.1 CERTAIN DEFINITIONS. The following terms have the
definitions hereinafter indicated whenever used in this Agreement with initial
capital letters:
ACT: The Delaware Revised Uniform Limited Partnership Act, Sections
17-101 to 17-1109 of the Delaware Code Annotated, Title 6, as amended from time
to time.
ADDITIONAL LIMITED PARTNER: A Person admitted to the Partnership as a
Limited Partner in accordance with Section 8.7 hereof and who is shown as such
on the books and records of the Partnership.
ADJUSTED CAPITAL ACCOUNT: With respect to any Partner, such Partner's
Capital Account maintained in accordance with Section 4.4 hereof, as of the end
of the relevant Fiscal Year of the Partnership, after giving effect to the
following adjustments:
(A) Credit to such Capital Account such Partner's share of Partnership
Minimum Gain determined in accordance with Treasury Regulations Section
1.704-2(g)(1) and such Partner's share of Partner Minimum Gain determined in
accordance with Treasury Regulations Section 1.704-2(i)(5).
<PAGE> 6
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(B) Debit to such Capital Account the items described in Treasury
Regulations Section 1.704- 1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of "Adjusted Capital Account" is intended to
comply with the provisions of Treasury Regulations Sections 1.704-1(b)(2)(ii)
and 1.704-2 and shall be interpreted consistently therewith.
ADJUSTED CAPITAL ACCOUNT DEFICIT: With respect to any Partner, the
deficit balance, if any, in that Partner's Adjusted Capital Account as of the
end of the relevant Fiscal Year of the Partnership.
AFFILIATE: With respect to any referenced Person, (i) a member of such
Person's immediate family; (ii) any Person who directly or indirectly owns,
controls or holds the power to vote ten percent (10%) or more of the outstanding
voting securities of the Person in question; (iii) any Person ten percent (10%)
or more of whose outstanding securities are directly or indirectly owned,
controlled, or held with power to vote by the Person in question; (iv) any
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with the Person in question; (v) if the Person in
question is a corporation, any executive officer or director of such Person or
of any corporation directly or indirectly controlling such Person; and (vi) if
the Person in question is a partnership, any general partner of the partnership
or any limited partner owning or controlling ten percent (10%) or more of either
the capital or profits interest in such partnership. As used herein, "control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise.
AGGREGATE PROTECTED AMOUNT: With respect to the Contributor Partners,
as a group, the aggregate balances of the Protected Amounts, if any, of the
Contributor Partners, as determined on the date in question.
AGREED VALUE: In the case of any (i) Contributed Property acquired
pursuant to a Contribution Agreement, the value of such Contributed Property as
set forth in such Contribution Agreement or, if no such value is set forth for
such Contributed Property, the portion of the consideration provided for under
such Contribution Agreement allocable to such Contributed Property, as
determined by the General Partner in its reasonable discretion, (ii) Contributed
Property acquired other than pursuant to a Contribution Agreement, the fair
market value of such property at the time of contribution, as determined by the
General Partner using such method of valuation as it may adopt in its reasonable
discretion and (iii) property distributed to a Partner by the Partnership, the
Partnership's Book Value of such property at the time such property is
distributed without taking into account, in the case of each of (i), (ii) and
(iii), the amount of any related indebtedness assumed by the Partnership (or the
Partner in the case of clause (iii)) or to which the Contributed Property (or
distributed property in the case of clause (iii)) is taken subject.
AGREEMENT: This Sixth Amended and Restated Limited Partnership
Agreement and all Exhibits attached hereto, as the same may be amended or
restated and in effect from time to time.
ASSIGNEE: Any Person to whom one or more Partnership Units have been
Transferred as permitted under this Agreement but who has not become a
Substituted Limited Partner in accordance with the provisions hereof.
BANKRUPTCY: Either (i) a referenced Person's making an assignment for
the benefit of creditors, (ii) the filing by a referenced Person of a voluntary
petition in bankruptcy, (iii) a referenced Person's being adjudged insolvent or
having entered against him an order for relief in any bankruptcy or insolvency
proceeding, (iv) the filing by a referenced Person of an answer seeking any
reorganization, composition, readjustment, liquidation, dissolution, or similar
relief under any law or regulation, (v) the filing by a referenced Person of an
answer or other pleading admitting or failing to contest the material
allegations of a petition filed against him in any proceeding of
<PAGE> 7
-3-
reorganization, composition, readjustment, liquidation, dissolution, or for
similar relief under any statute, law or regulation or (vi) a referenced
Person's seeking, consenting to, or acquiescing in the appointment of a trustee,
receiver or liquidator for all or substantially all of his property (or court
appointment of such trustee, receiver or liquidator).
BOOK-TAX DISPARITY: With respect to any item of Contributed Property,
or property the Book Value of which has been adjusted in accordance with Section
4.4(D), as of the date of determination, the difference between the Book Value
of such property and the adjusted basis of such property for federal income tax
purposes.
BOOK VALUE: With respect to any Contributed Property, the Agreed Value
of such property reduced (but not below zero) by all Depreciation with respect
to such property properly charged to the Partners' Capital Accounts, and with
respect to any other asset, the asset's adjusted basis for federal income tax
purposes; provided, however, (a) the Book Value of all Partnership Assets shall
be adjusted in the event of a revaluation of Partnership Assets in accordance
with Section 4.4(D) hereof, (b) the Book Value of any Partnership Asset
distributed to any Partner shall be the fair market value of such asset on the
date of distribution as determined by the General Partner and (c) such Book
Value shall be adjusted by the Depreciation taken into account with respect to
such asset for purposes of computing Profits and Losses.
CAPITAL ACCOUNT: The account maintained by the Partnership for each
Partner described in Section 4.4 hereof.
CAPITAL CONTRIBUTION: The total amount of cash or cash equivalents and
the Agreed Value (reduced to take into account the amount of any related
indebtedness assumed by the Partnership, or to which the Contributed Property is
subject) of Contributed Property which a Partner contributes or is deemed to
contribute to the Partnership pursuant to the terms of this Agreement.
CASH PAYMENT: The payment to a Redeeming Party of a cash amount
determined by multiplying (i) the number of Partnership Units tendered for
redemption by such Redeeming Party pursuant to a validly proffered Redemption
Notice by (ii) the Unit Value on the date the Redemption Notice is received by
the General Partner.
CERTIFICATE: The Partnership's Certificate of Limited Partnership filed
in the office of the Secretary of State of the State of Delaware, as amended
from time to time.
CLASS B DEEMED ORIGINAL ISSUE DATE: (i) in the case of any Class B Unit
which is part of the first issuance of such units or part of a subsequent
issuance of such units prior to July 1, 1997, the date of such first issuance
and (ii) in the case of any such unit which is part of a subsequent issuance of
such units on or after July 1, 1997, the later of (x) July 1, 1997 and (y) the
last Class B Distribution Period Commencement Date which precedes the date of
issuance of such unit and which succeeds the last Class B Distribution Period
for which full cumulative Class B Priority Return Amounts have been paid;
provided, however, that, in the case of any such unit which is part of a
subsequent issuance on or after July 1, 1997, the date of issuance of which
falls between (a) the record date for dividends payable on the Series B
Preferred Shares on the first succeeding dividend payment date on such stock and
(b) such dividend payment date, the "Class B Deemed Original Issue Date" means
the date of the Class B Distribution Period Commencement Date that immediately
follows the date of issuance of such unit.
CLASS B DISTRIBUTION PERIOD: The Class B Initial Distribution Period,
and each quarterly distribution period thereafter, commencing on January 1,
April 1, July 1 and October 1 of each year and ending on and including the day
preceding the next Class B Distribution Period Commencement Date.
<PAGE> 8
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CLASS B DISTRIBUTION PERIOD COMMENCEMENT DATE: January 1, April 1, July
1 and October 1 of each year, commencing on July 1, 1997.
CLASS B INITIAL DISTRIBUTION PERIOD: The period from the Class B Deemed
Original Issue Date for a Class B Unit to, but excluding, July 1, 1997.
CLASS B LIMITED PARTNER: First Industrial Realty Trust, Inc., a
Maryland corporation, in its capacity as a limited partner in the Partnership
holding Class B Units.
CLASS B PRIORITY RETURN AMOUNT: With respect to each Class B Unit, (i)
for the Class B Initial Distribution Period, the pro rata portion of the amount
referred to in clause (ii) of this definition, computed in accordance with the
last sentence of Section 5.3(A) hereof, and (ii) for each Class B Distribution
Period thereafter, an amount equal to 2.1875% of that portion of the Capital
Contribution of the Class B Limited Partner allocable to each such unit. Class B
Priority Return Amounts on each Class B Unit that are not distributed as
provided in Section 5.3(A) shall be cumulative from the Class B Deemed Original
Issue Date of such unit.
CLASS B REDEMPTION: As defined in Section 9.1(C) hereof.
CLASS B REDEMPTION PRICE: As defined in Section 9.1(C) hereof.
CLASS B UNIT: The Partnership Interest held by the Class B Limited
Partner, each full Class B Unit representing a $2,500 Capital Contribution.
CLASS C DEEMED ORIGINAL ISSUE DATE: (i) in the case of any Class C Unit
which is part of the first issuance of such units or part of a subsequent
issuance of such units prior to October 1, 1997, the date of such first issuance
and (ii) in the case of any such unit which is part of a subsequent issuance of
such units on or after October 1, 1997, the later of (x) October 1, 1997 and (y)
the last Class C Distribution Period Commencement Date which precedes the date
of issuance of such unit and which succeeds the last Class C Distribution Period
for which full cumulative Class C Priority Return Amounts have been paid;
provided, however, that, in the case of any such unit which is part of a
subsequent issuance on or after October 1, 1997, the date of issuance of which
falls between (a) the record date for dividends payable on the Series C
Preferred Shares on the first succeeding dividend payment date on such stock and
(b) such dividend payment date, the "Class C Deemed Original Issue Date" means
the date of the Class C Distribution Period Commencement Date that immediately
follows the date of issuance of such unit.
CLASS C DISTRIBUTION PERIOD: The Class C Initial Distribution Period
and each quarterly distribution period thereafter, commencing on January 1,
April 1, July 1 and October 1 of each year and ending on and including the day
preceding the next Class C Distribution Period Commencement Date.
CLASS C DISTRIBUTION PERIOD COMMENCEMENT DATE: January 1, April 1, July
1 and October 1 of each year commencing October 1, 1997.
CLASS C INITIAL DISTRIBUTION PERIOD: The period from the Class C Deemed
Original Issue Date for a Class C Unit to, but excluding, October 1, 1997.
CLASS C LIMITED PARTNER: First Industrial Realty Trust, Inc., a
Maryland corporation, in its capacity as a limited partner in the Partnership
holding Class C Units.
<PAGE> 9
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CLASS C PRIORITY RETURN AMOUNT: With respect to each Class C Unit, (i)
for the Class C Initial Distribution Period, the pro rata portion of the amount
referred to in clause (ii) of this definition, computed in accordance with the
last sentence of Section 5.3(B) hereof, and (ii) for each Class C Distribution
Period thereafter, an amount equal to 2.15625% of that portion of the Capital
Contribution of the Class C Limited Partner allocable to each such unit. Class C
Priority Return Amounts on each Class C Unit that are not distributed as
provided in Section 5.3(B) shall be cumulative from the Class C Deemed Original
Issue Date of such unit.
CLASS C REDEMPTION: As defined in Section 9.1(D) hereof.
CLASS C REDEMPTION PRICE: As defined in Section 9.1(D) hereof.
CLASS C UNIT: The Partnership Interest held by the Class C Limited
Partner, each full Class C Unit representing a $2,500 Capital Contribution.
CLASS D DEEMED ORIGINAL ISSUE DATE: (i) in the case of any Class D Unit
which is part of the first issuance of such units or part of a subsequent
issuance of such units prior to April 1, 1998, the date of such first issuance
and (ii) in the case of any such unit which is part of a subsequent issuance of
such units on or after April 1, 1998, the later of (x) April 1, 1998 and (y) the
last Class D Distribution Period Commencement Date which precedes the date of
issuance of such unit and which succeeds the last Class D Distribution Period
for which full cumulative Class D Priority Return Amounts have been paid;
provided, however, that, in the case of any such unit which is part of a
subsequent issuance on or after April 1, 1998, the date of issuance of which
falls between (a) the record date for dividends payable on the Series D
Preferred Shares on the first succeeding dividend payment date on such stock and
(b) such dividend payment date, the "Class D Deemed Original Issue Date" means
the date of the Class D Distribution Period Commencement Date that immediately
follows the date of issuance of such unit.
CLASS D DISTRIBUTION PERIOD: The Class D Initial Distribution Period
and each quarterly distribution period thereafter, commencing on January 1,
April 1, July 1 and October 1 of each year and ending on and including the day
preceding the next Class D Distribution Period Commencement Date.
CLASS D DISTRIBUTION PERIOD COMMENCEMENT DATE: January 1, April 1, July
1 and October 1 of each year commencing April 1, 1998.
CLASS D INITIAL DISTRIBUTION PERIOD: The period from the Class D Deemed
Original Issue Date for a Class D Unit to, but excluding, April 1, 1998.
CLASS D LIMITED PARTNER: First Industrial Realty Trust, Inc., a
Maryland corporation, in its capacity as a limited partner in the Partnership
holding Class D Units.
CLASS D PRIORITY RETURN AMOUNT: With respect to each Class D Unit, (i)
for the Class D Initial Distribution Period, the pro rata portion of the amount
referred to in clause (ii) of this definition, computed in accordance with the
last sentence of Section 5.3(B) hereof, and (ii) for each Class D Distribution
Period thereafter, an amount equal to 1.9875% of that portion of the Capital
Contribution of the Class D Limited Partner allocable to each such unit. Class D
Priority Return Amounts on each Class D Unit that are not distributed as
provided in Section 5.3(B) shall be cumulative from the Class D Deemed Original
Issue Date of such unit.
CLASS D REDEMPTION: As defined in Section 9.1(E) hereof.
CLASS D REDEMPTION PRICE: As defined in Section 9.1(E) hereof.
<PAGE> 10
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CLASS D UNIT: The Partnership Interest held by the Class D Limited
Partner, each full Class D Unit representing a $2,500 Capital Contribution.
CLASS E DEEMED ORIGINAL ISSUE DATE: (i) in the case of any Class E Unit
which is part of the first issuance of such units or part of a subsequent
issuance of such units prior to July 1, 1998, the date of such first issuance
and (ii) in the case of any such unit which is part of a subsequent issuance of
such units on or after July 1, 1998, the later of (x) July 1, 1998 and (y) the
last Class E Distribution Period Commencement Date which precedes the date of
issuance of such unit and which succeeds the last Class E Distribution Period
for which full cumulative Class E Priority Return Amounts have been paid;
provided, however, that, in the case of any such unit which is part of a
subsequent issuance on or after July 1, 1998, the date of issuance of which
falls between (a) the record date for dividends payable on the Series E
Preferred Shares on the first succeeding dividend payment date on such stock and
(b) such dividend payment date, the "Class E Deemed Original Issue Date" means
the date of the Class E Distribution Period Commencement Date that immediately
follows the date of issuance of such unit.
CLASS E DISTRIBUTION PERIOD: The Class E Initial Distribution Period
and each quarterly distribution period thereafter, commencing on January 1,
April 1, July 1 and October 1 of each year and ending on and including the day
preceding the next Class E Distribution Period Commencement Date.
CLASS E DISTRIBUTION PERIOD COMMENCEMENT DATE: January 1, April 1, July
1 and October 1 of each year commencing July 1, 1998.
CLASS E INITIAL DISTRIBUTION PERIOD: The period from the Class E Deemed
Original Issue Date for a Class E Unit to, but excluding, July 1, 1998.
CLASS E LIMITED PARTNER: First Industrial Realty Trust, Inc., a
Maryland corporation, in its capacity as a limited partner in the Partnership
holding Class E Units.
CLASS E PRIORITY RETURN AMOUNT: With respect to each Class E Unit, (i)
for the Class E Initial Distribution Period, the pro rata portion of the amount
referred to in clause (ii) of this definition, computed in accordance with the
last sentence of Section 5.3(B) hereof, and (ii) for each Class E Distribution
Period thereafter, an amount equal to 7.90% of that portion of the Capital
Contribution of the Class E Limited Partner allocable to each such unit. Class E
Priority Return Amounts on each Class E Unit that are not distributed as
provided in Section 5.3(B) shall be cumulative from the Class E Deemed Original
Issue Date of such unit.
CLASS E REDEMPTION: As defined in Section 9.1(F) hereof.
CLASS E REDEMPTION PRICE: As defined in Section 9.1(F) hereof.
CLASS E UNIT: The Partnership Interest held by the Class E Limited
Partner, each full Class E Unit representing a $2,500 Capital Contribution.
CODE: The Internal Revenue Code of 1986, as amended from time to time.
CONSENT: Either the written consent of a Person or the affirmative vote
of such Person at a meeting duly called and held pursuant to this Agreement, as
the case may be, to do the act or thing for which the consent is required or
solicited, or the act of granting such consent, as the context may require.
<PAGE> 11
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CONTRIBUTED PROPERTY: Each property or other asset (excluding cash and
cash equivalents) contributed or deemed contributed to the Partnership.
CONTRIBUTION AGREEMENTS: Those certain agreements among one or more of
the Initial Limited Partners (or Persons in which such Initial Limited Partners
have direct or indirect interests) and the Partnership pursuant to which, inter
alia, the Initial Limited Partners (or such Persons), directly or indirectly,
are contributing property to the Partnership on the Effective Date in exchange
for Partnership Units.
CONTRIBUTOR PARTNER(S): That or those Limited Partner(s) listed as
Contributor Partner(s) on Exhibit 1D attached hereto and made a part hereof, as
such Exhibit may be amended from time to time by the General Partner, whether by
express amendment to this Partnership Agreement or by execution of a written
instrument by and between any additional Contributor Partner(s) being affected
thereby and the General Partner, acting on behalf of the Partnership and without
the prior consent of the Limited Partners (whether or not Contributor Partners
other than the Contributor Partner(s) being affected thereby). For purposes
hereof, any successor, assignee, or transferee of the Interest of a Contributor
Partner (other than the Partnership in connection with a redemption pursuant to
Article IX hereof) shall be considered a Contributor Partner for purposes
hereof.
CONVERSION FACTOR: The factor applied for converting Partnership Units
to REIT Shares, which shall initially be 1.0; provided, however, in the event
that the REIT (i) declares or pays a dividend on its outstanding REIT Shares in
REIT Shares or makes a distribution to all holders of its outstanding REIT
Shares in REIT Shares, (ii) subdivides its outstanding REIT Shares or (iii)
combines its outstanding REIT Shares into a smaller number of REIT Shares, the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by a
fraction, the numerator of which shall be the number of REIT Shares issued and
outstanding on the record date (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time), and the
denominator of which shall be the actual number of REIT Shares (determined
without the above assumption) issued and outstanding on the record date for such
dividend, distribution, subdivision or combination; provided, further, in the
event that the Partnership (a) declares or pays a distribution on the
outstanding Partnership Units in Partnership Units or makes a distribution to
all Partners in Partnership Units, (b) subdivides the outstanding Partnership
Units or (c) combines the outstanding Partnership Units into a smaller number of
Partnership Units, the Conversion Factor shall be adjusted by multiplying the
Conversion Factor by a fraction, the numerator of which shall be the actual
number of Partnership Units issued and outstanding on the record date
(determined without giving effect to such dividend, distribution, subdivision or
combination), and the denominator of which shall be the actual number of
Partnership Units (determined after giving effect to such dividend,
distribution, subdivision or combination) issued and outstanding on such record
date. Any adjustment to the Conversion Factor shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
DEPRECIATION: For each Fiscal Year or other period, an amount equal to
the depreciation, amortization or other cost recovery deduction allowable with
respect to an asset for such year or other period, except that if the Book Value
of an asset differs from its adjusted basis for federal income tax purposes at
the beginning of such year or other period, Depreciation shall be adjusted as
necessary so as to be an amount which bears the same ratio to such beginning
Book Value as the federal income tax depreciation, amortization, or other cost
recovery deduction for such year or other period bears to the beginning adjusted
tax basis; provided, however, that if the federal income tax depreciation,
amortization or other cost recovery deduction for such year or other period is
zero, Depreciation for such year or other period shall be determined with
reference to such beginning Book Value using any reasonable method approved by
the General Partner.
<PAGE> 12
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DISTRIBUTABLE CASH: with respect to any period, and without
duplication:
(i) all cash receipts of the Partnership during such period
from all sources;
(ii) less all cash disbursements of the Partnership during
such period, including, without limitation, disbursements for operating
expenses, taxes, debt service (including, without limitation, the payment of
principal, premium and interest), redemption of Partnership Interests and
capital expenditures;
(iii) less amounts added to reserves in the sole discretion of
the General Partner, plus amounts withdrawn from reserves in the reasonable
discretion of the General Partner.
EFFECTIVE DATE: June 30, 1994.
ERISA: The Employee Retirement Income Security Act of 1976, as amended
from time to time.
FIRST HIGHLAND LIMITED PARTNERS: Those Limited Partners identified on
Exhibit 1A hereto.
FIRST HIGHLAND PROPERTIES: Those certain properties acquired by the
Partnership pursuant to that certain Contribution Agreement, dated as of March
19, 1996.
FIRST HIGHLAND UNITS: The Partnership Units issued to the First
Highland Limited Partners in connection with the acquisition of the First
Highland Properties by the Partnership.
FISCAL YEAR: The calendar year or in the event of a termination of the
Partnership pursuant to Code Section 708, an appropriate portion of such year.
GENERAL PARTNER: First Industrial Realty Trust, Inc., a Maryland
corporation, and its respective successor(s) who or which become Successor
General Partner(s) in accordance with the terms of this Agreement.
GENERAL PARTNER INTEREST: A Partnership Interest held by the General
Partner including both its General Partner and Limited Partner Interests. A
General Partner Interest may be expressed as a number of Partnership Units.
INVOLUNTARY WITHDRAWAL: As to any (i) individual shall mean such
individual's death, incapacity or adjudication of incompetence, (ii) corporation
shall mean its dissolution or revocation of its charter (unless such revocation
is promptly corrected upon notice thereof), (iii) partnership shall mean the
dissolution and commencement of winding up of its affairs, (iv) trust shall mean
the termination of the trust (but not the substitution of trustees), (v) estate
shall mean the distribution by the fiduciary of the estate's complete interest
in the Partnership and (vi) any Partner shall mean the Bankruptcy of such
Partner.
IRS: The Internal Revenue Service, which administers the internal
revenue laws of the United States.
LB CLOSING DATE: January 31, 1997.
LB PARTNERS: The persons identified on Exhibit 1C hereto, following
their admission to the Partnership as Additional Limited Partners.
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LB UNITS: The Partnership Units issued to the LB Partners in connection
with the acquisition by the Partnership of certain properties on the LB Closing
Date.
LIMITED PARTNER: Those Persons listed as such on Exhibit 1B attached
hereto and made a part hereof, as such Exhibit may be amended from time to time,
including any Person who becomes a Substituted Limited Partner or an Additional
Limited Partner in accordance with the terms of this Agreement; provided such
term shall not include the Class B Limited Partner, the Class C Limited Partner,
the Class D Limited Partner or the Class E Limited Partner.
LIMITED PARTNER INTEREST: A Partnership Interest held by a Limited
Partner that is a limited partner interest. A Limited Partner Interest may be
expressed as a number of Partnership Units.
NONRECOURSE LIABILITY: A liability as defined in Treasury Regulations
Section 1.704-2(b)(3).
NOTICE: A writing containing the information required by this Agreement
to be communicated to a Person and delivered to such Person in accordance with
Section 12.4; provided, however, that any written communication containing such
information actually received by such Person shall constitute Notice for all
purposes of this Agreement.
PARTNER MINIMUM GAIN: The gain (regardless of character) which would be
realized by the Partnership if property of the Partnership subject to a partner
nonrecourse debt (as such term is defined in Treasury Regulations Section
1.704-2(b)(4)) were disposed of in full satisfaction of such debt on the
relevant date. The adjusted basis of property subject to more than one partner
nonrecourse debt shall be allocated in a manner consistent with the allocation
of basis for purposes of determining Partnership Minimum Gain hereunder. Partner
Minimum Gain shall be computed hereunder using the Book Value, rather than the
adjusted tax basis, of the Partnership property in accordance with Treasury
Regulations Section 1.704-2(d)(3).
PARTNER NONRECOURSE DEDUCTIONS: With respect to any partner nonrecourse
debt (as such term is defined in Treasury Regulations Section 1.704-2(b)(4)),
the increase in Partner Minimum Gain during the tax year plus any increase in
Partner Minimum Gain for a prior tax year which has not previously generated a
Partner Nonrecourse Deduction hereunder. The determination of which Partnership
items constitute Partner Nonrecourse Deductions shall be made in a manner
consistent with the manner in which Partnership Nonrecourse Deductions are
determined hereunder.
PARTNERS: The General Partner, the Class B Limited Partner, the Class C
Limited Partner, the Class D Limited Partner, the Class E Limited Partner and
the Limited Partners as a group. The term "Partner" shall mean a General
Partner, the Class B Limited Partner, the Class C Limited Partner, the Class D
Limited Partner, the Class E Limited Partner or a Limited Partner. Such terms
shall be deemed to include such other Persons who become Partners pursuant to
the terms of this Agreement.
PARTNERSHIP: The Delaware limited partnership referred to herein as
First Industrial, L.P., as such partnership may from time to time be
constituted.
PARTNERSHIP ASSETS: At any particular time, any assets or property
(tangible or intangible, choate or inchoate, fixed or contingent) owned by the
Partnership.
PARTNERSHIP INTEREST OR INTEREST: As to any Partner, such Partner's
ownership interest in the Partnership and including such Partner's right to
distributions under this Agreement and any other rights or benefits which such
<PAGE> 14
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Partner has in the Partnership, together with any and all obligations of such
Person to comply with the terms and provisions of this Agreement. A Partnership
Interest may be expressed as a number of Partnership Units.
PARTNERSHIP MINIMUM GAIN: The aggregate gain (regardless of character)
which would be realized by the Partnership if all of the property of the
Partnership subject to nonrecourse debt (other than partner nonrecourse debt as
such term is defined in Treasury Regulations Section 1.704-2(b)(4)) were
disposed of in full satisfaction of such debt and for no other consideration on
the relevant date. In the case of any Nonrecourse Liability of the Partnership
which is not secured by a mortgage with respect to any specific property of the
Partnership, any and all property of the Partnership to which the holder of said
liability has recourse shall be treated as subject to such Nonrecourse Liability
for purposes of the preceding sentence. Partnership Minimum Gain shall be
computed separately for each Nonrecourse Liability of the Partnership. For this
purpose, the adjusted basis of property subject to two or more liabilities of
equal priority shall be allocated among such liabilities in proportion to the
outstanding balance of such liabilities, and the adjusted basis of property
subject to two or more liabilities of unequal priority shall be allocated to the
liability of inferior priority only to the extent of the excess, if any, of the
adjusted basis of such property over the outstanding balance of the liability of
superior priority. Partnership Minimum Gain shall be computed hereunder using
the Book Value, rather than the adjusted tax basis, of the Partnership property
in accordance with Treasury Regulations Section 1.704-2(d)(3).
PARTNERSHIP NONRECOURSE DEDUCTIONS: The amount of Partnership
deductions equal to the increase, if any, in the amount of the aggregate
Partnership Minimum Gain during the tax year (plus any increase in Partnership
Minimum Gain for a prior tax year which has not previously generated a
Partnership Nonrecourse Deduction) reduced (but not below zero) by the aggregate
distributions made during the tax year of the proceeds of a Nonrecourse
Liability of the Partnership which are attributable to an increase in
Partnership Minimum Gain within the meaning of Treasury Regulations Section
1.704-2(d). The Partnership Nonrecourse Deductions for a Partnership tax year
shall consist first of depreciation or cost recovery deductions with respect to
each property of the Partnership giving rise to such increase in Partnership
Minimum Gain on a pro rata basis to the extent of each such increase, with any
excess made up pro rata of all items of deduction.
PARTNERSHIP UNIT: A fractional, undivided share of the Partnership
Interests of all Partners (other than the Class B Limited Partner, the Class C
Limited Partner, the Class D Limited Partner and the Class E Limited Partner)
issued pursuant to Section 4.1 hereof.
PERCENTAGE INTEREST: As to any Partner, the percentage in the
Partnership, as determined by dividing the Partnership Units then owned by such
Partner by the total number of Partnership Units then outstanding, as the same
may be automatically adjusted from time to time to reflect the issuance and
redemption of Partnership Units in accordance with this Agreement, without
requiring the amendment of Exhibit 1B to reflect any such issuance or
redemption.
PERSON: Any individual, partnership, corporation, trust or other
entity.
PROFITS AND LOSSES: For each Fiscal Year or other period, an amount
equal to the Partnership's taxable income or loss (as the case may be) for such
year or period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in taxable
income or loss), with the following adjustments:
a. Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits or
Losses pursuant to this definition shall be added to such taxable income or
loss;
<PAGE> 15
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b. Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant
to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses pursuant to this
definition, shall be subtracted from such taxable income or loss;
c. Gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for federal
income tax purposes shall be computed by reference to the Book Value of the
property disposed of notwithstanding that the adjusted tax basis of such
property differs from such Book Value;
d. In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such taxable income or
loss, there shall be taken into account Depreciation for such Fiscal Year
or other period, computed in accordance with the definition of
"Depreciation" herein; and
e. In the event that any item of income, gain, loss or deduction
that has been included in the initial computation of Profit or Loss is
subject to the special allocation rules of Sections 5.2(C) and 5.2(D),
Profit or Loss shall be recomputed without regard to such item.
PROTECTED AMOUNT: With respect to any Contributor Partner, the amount
set forth or otherwise described opposite the name of such Contributor Partner
on Exhibit 1D attached hereto and made a part hereof, as such Exhibit may be
modified from time to time by an amendment to the Partnership Agreement or by
execution of a written instrument by and between the Contributor Partner being
affected thereby and the General Partner, acting on behalf of the Partnership
and without the prior written consent of the Limited Partners (whether or not
Contributor Partners other than the Contributor Partner being affected thereby);
provided, however, that no Contributor Partner shall be considered to have a
Protected Amount from and following the first date upon which such Partner is no
longer a Partner of the Partnership.
RECORD DATE: The record date established by the General Partner for
distributions pursuant to Section 5.3 hereof, which record date shall be the
same as the record date established by the General Partner for a distribution to
its stockholders of some or all of its portion of such distribution.
RECOURSE LIABILITIES: The amount of liabilities owed by the Partnership
(other than nonrecourse liabilities and liabilities to which Partner Nonrecourse
Deductions are attributable in accordance with Treasury Regulations Section
1.704-2(i)).
REDEEMING PARTY: A Limited Partner or Assignee (other than the General
Partner) who tenders Partnership Units for redemption pursuant to a Redemption
Notice.
REDEMPTION DATE: The date for redemption of Partnership Units as set
forth in Section 9.2.
REDEMPTION EFFECTIVE DATE: The first date on which a Redeeming Party
may elect to redeem Partnership Units, which date shall be the later of (i) the
first anniversary of the date such Partnership Units are issued and (ii) the
effective date of any registration statement filed by the Partnership with
respect to the REIT Shares to be issued upon redemption of Partnership Units by
a Redeeming Party.
REDEMPTION NOTICE: A Notice to the General Partner by a Redeeming
Party, substantially in the form attached as Exhibit 2, pursuant to which the
Redeeming Party requests the redemption of Partnership Units in accordance with
Article IX.
<PAGE> 16
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REDEMPTION OBLIGATION: The obligation of the Partnership to redeem the
Partnership Units as set forth in Section 9.1(A).
REDEMPTION PERIOD: The 45-day period immediately following the filing
with the SEC by the General Partner of an annual report of the General Partner
on Form 10-K or a quarterly report of the General Partner on Form 10-Q or such
other period or periods as the General Partner may otherwise determine.
REDEMPTION PRICE: As defined in Section 8.4 hereof.
REDEMPTION RESTRICTION: A restriction on the ability of the Partnership
to redeem the Partnership Units as set forth in Section 9.1(A).
REGISTRATION RIGHTS AGREEMENT: A Registration Rights Agreement,
substantially in the form of Exhibit 3 hereto, pursuant to which First
Industrial will agree to register under the Securities Act of 1933, as amended,
REIT Shares issued in connection with Share Payments made under Article IX
hereof.
REIT: A real estate investment trust, as defined in Code Section 856.
REIT CHARTER: The Articles of Incorporation of First Industrial filed
with the Department of Assessments and Taxation of the State of Maryland on
August 10, 1993, as the same may be amended or restated and in effect from time
to time.
REIT SHARE: A share of common stock representing an ownership interest
in the General Partner.
REIT SHARE RIGHTS: Rights to acquire additional REIT Shares issued to
all holders of REIT Shares, whether in the form of rights, options, warrants or
convertible or exchangeable securities, to the extent the same have been issued
without additional consideration after the initial acquisition of such REIT
Shares.
SEC: The Securities and Exchange Commission.
SERIES B PREFERRED SHARES: 8 3/4% Series B Cumulative Preferred Stock
of First Industrial Realty Trust, Inc.
SERIES C PREFERRED SHARES: 8 5/8% Series C Cumulative Preferred Stock
of First Industrial Realty Trust, Inc.
SERIES D PREFERRED SHARES: 7.95% Series D Cumulative Preferred Stock of
First Industrial Realty Trust, Inc.
SERIES E PREFERRED SHARES: 7.90% Series E Cumulative Preferred Stock of
First Industrial Realty Trust, Inc.
SHARE PAYMENT: The payment to a Redeeming Party of a number of REIT
Shares determined by multiplying (i) the number of Partnership Units tendered
for redemption by such Redeeming Party pursuant to a validly proffered
Redemption Notice by (ii) the Conversion Factor. In the event the General
Partner grants any REIT Share Rights prior to such payment, any Share Payment
shall include for the Redeeming Party his ratable share of such REIT Share
Rights other than REIT Share Rights which have expired.
<PAGE> 17
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SUBSIDIARY: With respect to any Person, any corporation or other entity
of which a majority of (i) the voting power of the voting equity securities or
(ii) the outstanding equity interests is owned, directly or indirectly, by such
Person.
SUBSTITUTED LIMITED PARTNER: That Person or those Persons admitted to
the Partnership as substitute Limited Partner(s), in accordance with the
provisions of this Agreement. A Substituted Limited Partner, upon his admission
as such, shall succeed to the rights, privileges and liabilities of his
predecessor in interest as a Limited Partner.
SUCCESSOR GENERAL PARTNER: Any Person who is admitted to the
Partnership as substitute General Partner pursuant to this Agreement. A
Successor General Partner, upon its admission as such, shall succeed to the
rights, privileges and liabilities of its predecessor in interest as General
Partner, in accordance with the provisions of the Act.
TAX MATTERS PARTNER: The General Partner or such other Partner who
becomes Tax Matters Partner pursuant to the terms of this Agreement.
TERMINATING CAPITAL TRANSACTION: The sale or other disposition of all
or substantially all of the Partnership Assets or a related series of
transactions that, taken together, result in the sale or other disposition of
all or substantially all of the Partnership Assets.
THRESHOLD PERCENTAGE: A percentage equal to 85% on the LB Closing Date
and thereafter adjusted upwards (but not downwards) immediately prior to each
solicitation of any vote of, or the seeking of any consent, approval or waiver
from, the Limited Partners generally, to the sum of (i) 85% and (ii) the number
of percentage points equal to the positive difference, if any, between (a) the
aggregate Percentage Interest represented by the LB Units immediately following
the LB Closing Date and (b) the aggregate Percentage Interest represented by the
LP Units immediately prior to any such solicitation. For example, if on the LB
Closing Date the LB Units represent a 10% aggregate Percentage Interest, and if
immediately prior to a solicitation the Threshold Percentage is 85% and the
aggregate Percentage Interest represented by the LB Units is 8%, the Threshold
Percentage would be increased to 87% (85% + (10% - 8%)).
TRANSFER: With respect to any Partnership Unit shall mean a transaction
in which a Partner assigns his Partnership Interest to another Person and
includes any sale, assignment, gift, pledge, mortgage, exchange, hypothecation,
encumbrance or other disposition by law or otherwise; provided, however, the
redemption of any Partnership Interest pursuant to Article IX hereof shall not
constitute a "transfer" for purposes hereof.
TRANSFER RESTRICTION DATE: June 23, 1995.
TREASURY REGULATIONS: The Income Tax Regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
UNIT VALUE: With respect to any Partnership Unit, the average of the
daily market price for a REIT Share for the ten (10) consecutive trading days
immediately preceding the date of receipt of a Redemption Notice by the General
Partner multiplied by the Conversion Factor. If the REIT Shares are traded on a
securities exchange or the NASDAQ-National Market System, the market price for
each such trading day shall be the reported last sale price on such day or, if
no sales take place on such day, the average of the closing bid and asked prices
on such day. If the REIT Shares are not traded on a securities exchange or the
NASDAQ-National Market System, the market price for each such trading day shall
be determined by the General Partner using any reasonable method of
<PAGE> 18
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valuation. If a Share Payment would include any REIT Share Rights, the value of
such REIT Share Rights shall be determined by the General Partner using any
reasonable method of valuation, taking into account the Unit Value determined
hereunder and the factors used to make such determination and the value of such
REIT Share Rights shall be included in the Unit Value.
VOTING TERMINATION DATE: The first date after the LB Closing Date on
which either (i) the General Partner holds 90% or more of all Partnership Units
or (ii) the aggregate number of Partnership Units held by the General Partner
and the LB Partners is less than the product of the Threshold Percentage and the
total number of Partnership Units then outstanding.
SECTION 1.2 RULES OF CONSTRUCTION. The following rules of construction
shall apply to this Agreement:
(A) All section headings in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section.
(B) All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders, the
singular shall include the plural, and vice versa, as the context may require.
(C) Each provision of this Agreement shall be considered severable
from the rest, and if any provision of this Agreement or its application to any
Person or circumstances shall be held invalid and contrary to any existing or
future law or unenforceable to any extent, the remainder of this Agreement and
the application of any other provision to any Person or circumstances shall not
be affected thereby and shall be interpreted and enforced to the greatest extent
permitted by law so as to give effect to the original intent of the parties
hereto.
(D) Unless otherwise specifically and expressly limited in the
context, any reference herein to a decision, determination, act, action,
exercise of a right, power or privilege, or other procedure by the General
Partner shall mean and refer to the decision, determination, act, action,
exercise or other procedure by the General Partner in its sole and absolute
discretion.
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ARTICLE II - CONTINUATION
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SECTION 2.1 CONTINUATION. The Partners hereby continue the Partnership
as a limited partnership under the Act. The General Partner shall take all
action required by law to perfect and maintain the Partnership as a limited
partnership under the Act and under the laws of all other jurisdictions in which
the Partnership may elect to conduct business, including but not limited to the
filing of amendments to the Certificate with the Delaware Secretary of State,
and qualification of the Partnership as a foreign limited partnership in the
jurisdictions in which such qualification shall be required, as determined by
the General Partner. The General Partner shall also promptly register the
Partnership under applicable assumed or fictitious name statutes or similar
laws.
SECTION 2.2 NAME. The name of the Partnership is First Industrial, L.P.
The General Partner may adopt such assumed or fictitious names as it deems
appropriate in connection with the qualifications and registrations referred to
in Section 2.1.
<PAGE> 19
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SECTION 2.3 PLACE OF BUSINESS; REGISTERED AGENT. The principal office
of the Partnership is located at 311 S. Wacker Drive, Suite 4000, Chicago,
Illinois 60606, which office may be changed to such other place as the General
Partner may from time to time designate. The Partnership may establish offices
for the Partnership within or without the State of Delaware as may be determined
by the General Partner. The initial registered agent for the Partnership in the
State of Delaware is The Corporation Trust Company, whose address is c/o
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
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ARTICLE III - BUSINESS PURPOSE
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SECTION 3.1 BUSINESS. The business of the Partnership shall be (i)
conducting any business that may be lawfully conducted by a limited partnership
pursuant to the Act including, without limitation, acquiring, owning, managing,
developing, leasing, marketing, operating and, if and when appropriate, selling,
industrial properties, (ii) entering into any partnership, joint venture or
other relationship to engage in any of the foregoing or the ownership of
interests in any entity engaged in any of the foregoing, (iii) making loans,
guarantees, indemnities or other financial accommodations and borrowing money
and pledging its assets to secure the repayment thereof, (iv) to do any of the
foregoing with respect to any Affiliate or Subsidiary and (v) doing anything
necessary or incidental to the foregoing; provided, however, that business of
the Partnership shall be limited so as to permit the General Partner to elect
and maintain its status as a REIT (unless the General Partner determines no
longer to qualify as a REIT).
SECTION 3.2 AUTHORIZED ACTIVITIES. In carrying out the purposes of the
Partnership, but subject to all other provisions of this Agreement, the
Partnership is authorized to engage in any kind of lawful activity, and perform
and carry out contracts of any kind, necessary or advisable in connection with
the accomplishment of the purposes and business of the Partnership described
herein and for the protection and benefit of the Partnership; provided that the
General Partner shall not be obligated to cause the Partnership to take, or
refraining from taking, any action which, in the judgment of the General
Partner, (i) could adversely affect the ability of the General Partner to
qualify and continue to qualify as a REIT, (ii) could subject the General
Partner to additional taxes under Code Section 857 or 4981 or (iii) could
violate any law or regulation of any governmental body or agency having
jurisdiction over the General Partner or its securities.
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ARTICLE IV - CAPITAL CONTRIBUTIONS
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SECTION 4.1 CAPITAL CONTRIBUTIONS.
(A) Upon the contribution to the Partnership of property in
accordance with a Contribution Agreement, Partnership Units shall be issued in
accordance with, and as contemplated by, such Contribution Agreement, and the
Persons receiving such Partnership Units shall become Partners and shall be
deemed to have made a Capital Contribution as set forth on Exhibit 1. Exhibit 1
also sets forth the initial number of Partnership Units owned by each Partner
and the Percentage Interest of each Partner, which Percentage Interest shall be
adjusted from time to time by the General Partner to reflect the issuance of
additional Partnership Units, the redemption of Partnership Units, additional
Capital Contributions and similar events having an effect on a Partner's
Percentage Interest. Except as set forth in Section 4.2 (regarding issuance of
additional Partnership Units) or Section 7.6 (regarding withholding
obligations), no Partner shall be required under any circumstances to contribute
to the capital of the Partnership any amount beyond that sum required pursuant
to this Article IV.
<PAGE> 20
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(B) Anything in the foregoing Section 4.1(A) or elsewhere in this
Agreement notwithstanding, the Partnership Units held by the General Partner
shall, at all times, be deemed to be General Partner units and shall constitute
the General Partner Interest.
SECTION 4.2 ADDITIONAL PARTNERSHIP INTERESTS.
(A) The Partnership may issue additional limited partnership
interests in the form of Partnership Units for any Partnership purpose at any
time or from time to time, to any Partner or other Person (other than the
General Partner, except in accordance with Section 4.2(B) below).
(B) The Partnership also may from time to time issue to the
General Partner additional Partnership Units or other Partnership Interests in
such classes and having such designations, preferences and relative rights
(including preferences and rights senior to the existing Limited Partner
Interests) as shall be determined by the General Partner in accordance with the
Act and governing law. Except as provided in Article IX, any such issuance of
Partnership Units or Partnership Interests to the General Partner shall be
conditioned upon (i) the undertaking by the General Partner of a related
issuance of its capital stock (with such shares having designations, rights and
preferences such that the economic rights of the holders of such capital stock
are substantially similar to the rights of the additional Partnership Interests
issued to the General Partner) and the General Partner making a Capital
Contribution (a) in an amount equal to the net proceeds raised in the issuance
of such capital stock, in the event such capital stock is sold for cash or cash
equivalents or (b) the property received in consideration for such capital
stock, in the event such capital stock is issued in consideration for other
property or (ii) the issuance by the General Partner of capital stock under any
stock option or bonus plan and the General Partner making a Capital Contribution
in an amount equal to the exercise price of the option exercised pursuant to
such stock option or other bonus plan.
(C) Except as contemplated by Article IX (regarding redemptions)
or Section 4.2(B), the General Partner shall not issue any (i) additional REIT
Shares, (ii) rights, options or warrants containing the right to subscribe for
or purchase REIT Shares or (iii) securities convertible or exchangeable into
REIT Shares (collectively, "Additional REIT Securities") other than to all
holders of REIT Shares, pro rata, unless (x) the Partnership issues to the
General Partner (i) Partnership Interests, (ii) rights, options or warrants
containing the right to subscribe for or purchase Partnership Interests or (iii)
securities convertible or exchangeable into Partnership Interests such that the
General Partner receives an economic interest in the Partnership substantially
similar to the economic interest in the General Partner represented by the
Additional REIT Securities and (y) the General Partner contributes to the
Partnership the net proceeds from, or the property received in consideration
for, the issuance of the Additional REIT Securities and the exercise of any
rights contained in any Additional REIT Securities.
SECTION 4.3 NO THIRD PARTY BENEFICIARIES. The foregoing provisions of
this Article IV are not intended to be for the benefit of any creditor of the
Partnership or other Person to whom any debts, liabilities or obligations are
owed by (or who otherwise has any claim against) the Partnership or any of the
Partners and no such creditor or other Person shall obtain any right under any
such foregoing provision against the Partnership or any of the Partners by
reason of any debt, liability or obligation (or otherwise).
SECTION 4.4 CAPITAL ACCOUNTS.
(A) The Partnership shall establish and maintain a separate
Capital Account for each Partner in accordance with Code Section 704 and
Treasury Regulations Section 1.704-1(b)(2)(iv). The Capital Account of each
Partner shall be credited with:
<PAGE> 21
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(1) the amount of all Capital Contributions made to the
Partnership by such Partner in accordance with this Agreement; plus
(2) all income and gain of the Partnership computed in
accordance with this Section 4.4 and allocated to such Partner pursuant to
Article V (including for purposes of this Section 4.4(A), income and gain exempt
from tax);
and shall be debited with the sum of:
(1) all losses or deductions of the Partnership computed in
accordance with this Section 4.4 and allocated to such Partner pursuant to
Article V,
(2) such Partner's distributive share of expenditures of the
Partnership described in Code Section 705(a)(2)(B), and
(3) all cash and the Agreed Value (reduced to take into
account the amount of any related indebtedness assumed by the Partner, or to
which the distributed property is subject) of any property actually distributed
or deemed distributed by the Partnership to such Partner pursuant to the terms
of this Agreement.
Any reference in any section or subsection of this Agreement to the
Capital Account of a Partner shall be deemed to refer to such Capital Account as
the same may be credited or debited from time to time as set forth above.
(B) For purposes of computing the amount of any item of income,
gain, deduction or loss to be reflected in the Partners' Capital Accounts, the
determination, recognition and classification of each such item shall be the
same as its determination, recognition and classification for federal income tax
purposes, determined in accordance with Code Section 703(a) and accounting for
those adjustments set forth in the definition of Profits and Losses, with the
following additional adjustments:
(1) the computation of all items of income, gain, loss and
deduction shall be made without regard to any Code Section 754 election that may
be made by the Partnership, except to the extent required in accordance with the
provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(m); and
(2) in the event the Book Value of any Partnership Asset is
adjusted pursuant to Section 4.4(D) below, the amount of such adjustment shall
be treated as gain or loss from the disposition of such asset.
(C) Any transferee of a Partnership Interest shall succeed to a
pro rata portion of the transferor's Capital Account transferred.
(D) Consistent with the provisions of Treasury Regulations Section
1.704-1(b)(2)(iv)(f), (i) immediately prior to the acquisition of an additional
Partnership Interest by any new or existing Partner in connection with the
contribution of money or other property (other than a de minimis amount) to the
Partnership, (ii) immediately prior to the distribution by the Partnership to a
Partner of Partnership property (other than a de minimis amount) as
consideration for a Partnership Interest and (iii) immediately prior to the
liquidation of the Partnership as defined in Treasury Regulations Section
1.704-1(b)(2)(ii)(g), the Book Value of all Partnership Assets shall be revalued
upward or downward to reflect the fair market value of each such Partnership
Asset as determined by the General Partner using such reasonable method of
valuation as it may adopt.
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(E) The foregoing provisions of this Section 4.4 are intended to
comply with Treasury Regulations Section 1.704-1(b) and shall be interpreted and
applied in a manner consistent with such Treasury Regulations. In the event the
General Partner shall determine that it is prudent to modify the manner in which
the Partners' Capital Accounts are computed hereunder in order to comply with
such Treasury Regulations, the General Partner may make such modification if
such modification is not likely to have a material effect on the amount
distributable to any Partner under the terms of this Agreement and the General
Partner notifies the other Partners in writing of such modification prior to
making such modification.
SECTION 4.5 RETURN OF CAPITAL ACCOUNT; INTEREST. Except as otherwise
specifically provided in this Agreement, (i) no Partner shall have any right to
withdraw or reduce its Capital Contributions or Capital Account, or to demand
and receive property other than cash from the Partnership in return for its
Capital Contributions or Capital Account; (ii) no Partner shall have any
priority over any other Partners as to the return of its Capital Contributions
or Capital Account; (iii) any return of Capital Contributions or Capital
Accounts to the Partners shall be solely from the Partnership Assets, and no
Partner shall be personally liable for any such return; and (iv) no interest
shall be paid by the Partnership on Capital Contributions or on balances in
Partners' Capital Accounts.
SECTION 4.6 PREEMPTIVE RIGHTS. No Person shall have any preemptive or
similar rights with respect to the issuance or sale of additional Partnership
Units.
SECTION 4.7 REIT SHARE PURCHASES. If the General Partner acquires
additional REIT Shares pursuant to Article IX of the REIT Charter, the
Partnership shall purchase from the General Partner that number of Partnership
Units determined by applying the Conversion Multiple to the number of REIT
Shares purchased by the General Partner at the same price and on the same terms
as those upon which the General Partner purchased such REIT Shares.
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ARTICLE V - ALLOCATIONS AND DISTRIBUTIONS
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SECTION 5.1 LIMITED LIABILITY. For bookkeeping purposes, the Profits of
the Partnership shall be shared, and the Losses of the Partnership shall be
borne, by the Partners as provided in Section 5.2 below; provided, however, that
except as expressly provided in this Agreement, neither any Limited Partner (in
its capacity as a Limited Partner), the Class B Limited Partner (in its capacity
as Class B Limited Partner), the Class C Limited Partner (in its capacity as
Class C Limited Partner), the Class D Limited Partner (in its capacity as Class
D Limited Partner) nor the Class E Limited Partner (in its capacity as Class E
Limited Partner) shall be personally liable for losses, costs, expenses,
liabilities or obligations of the Partnership in excess of its Capital
Contribution required under Article IV hereof.
SECTION 5.2 PROFITS, LOSSES AND DISTRIBUTIVE SHARES.
(A) PROFITS. After giving effect to the special allocations, if
any, provided in Section 5.2(C), (D), (I), (J) and (K) Profits in each Fiscal
Year shall be allocated in the following order:
(1) First, to the General Partner until the cumulative Profits
allocated to the General Partner under this Section 5.2(A)(1), whether in the
current or in any prior Fiscal Year equal the cumulative Losses allocated to
such Partner under Section 5.2(B)(6), whether in the current or in any prior
Fiscal Year;
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(2) Second, to the Class B Limited Partner, Class C Limited
Partner, Class D Limited Partner and Class E Limited Partner, in proportion to
the cumulative Losses allocated to each such Partner under Section 5.2(B)(5),
whether in the current or in any prior Fiscal Year until the Cumulative Profits
allocated to each such Partner under this Section 5.2(A)(2) equal the cumulative
Losses allocated to each such Partner under Section 5.2(B)(5), whether in the
current or in any prior Fiscal Year;
(3) Third, to each Partner in proportion to the cumulative
Losses allocated to such Partner under Section 5.2(B)(4), whether in the current
or in any prior Fiscal Year, until the cumulative Profits allocated to such
Partner under this Section 5.2(A)(3) equal the cumulative Losses allocated to
such Partner under Section 5.2(B)(4), whether in the current or in any prior
Fiscal Year;
(4) Fourth, to the General Partner until the cumulative
Profits allocated to the General Partner under this Section 5.2(A)(4), whether
in the current or in any prior Fiscal Year equal the cumulative Losses allocated
to such Partner under Section 5.2(B)(3), whether in the current or in any prior
Fiscal Year;
(5) Fifth, to each Partner in proportion to the cumulative
Losses allocated to such Partner under Section 5.2(B)(2), whether in the current
or in any prior Fiscal Year, until the cumulative Profits allocated to such
Partner under this Section 5.2(A)(5) equal the cumulative Losses allocated to
such Partner under Section 5.2(B)(2), whether in the current or in any prior
Fiscal Year;
(6) Sixth, to each Partner in proportion to the cumulative
Losses allocated to such Partner under Section 5.2(B)(1), whether in the current
or in any prior Fiscal Year, until the cumulative Profits allocated to such
Partner under this Section 5.2(A)(6) equal the cumulative Losses allocated to
such Partner under Section 5.2(B)(1), whether in the current or in any prior
Fiscal Year; and
(7) Then, the balance, if any, to the Partners in proportion
to their respective Percentage Interests.
(B) LOSSES. After giving effect to the special allocations, if
any, provided in Section 5.2(C), (D), (I), (J) and (K), Losses in each Fiscal
Year shall be allocated in the following order of priority:
(1) First, to the Partners (other than the Class B Limited
Partner, the Class C Limited Partner, the Class D Limited Partner and the Class
E Limited Partner), in proportion to their respective Percentage Interests, but
not in excess of the positive Adjusted Capital Account balance of any Partner
prior to the allocation provided for in this Section 5.2(B)(1);
(2) Second, to the Partners (other than the Class B Limited
Partner, the Class C Limited Partner, the Class D Limited Partner and the Class
E Limited Partner) with positive Adjusted Capital Account balances prior to the
allocation provided for in this Section 5.2(B)(2), in proportion to the amount
of such balances until all such balances are reduced to zero;
(3) Third, to the General Partner until (i) the excess of (a)
the cumulative Losses allocated under this Section 5.2(B)(3), whether in the
current or in any prior Fiscal Year, over (b) the cumulative Profits allocated
under Section 5.2(a)(4), whether in the current or in any prior Fiscal Year,
equals (ii) the excess of (a) the amount of Recourse Liabilities over (b) the
Aggregate Protected Amount;
(4) Fourth, to and among the Contributor Partners, in
accordance with their respective Protected Amounts, until the excess of (a) the
cumulative Losses allocated under this Section 5.2(B)(4), whether in the current
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or in any prior Fiscal Year, over (b) the cumulative Profits allocated under
5.2(A)(3), whether in the current or in any prior Fiscal Year, equals the
Aggregate Protected Amount (as of the close of the Fiscal Year to which such
allocation relates);
(5) Fifth, to the Class B Limited Partner, the Class C Limited
Partner, the Class D Limited Partner and the Class E Limited Partner, in
accordance with their respective Adjusted Capital Accounts, until their Adjusted
Capital Accounts are reduced to zero; and
(6) Thereafter, to the General Partner;
provided, however, (i) that, from and following the first Fiscal Year upon which
a Contributor Partner is no longer a Partner of the Partnership, the provisions
of this Section 5.2(B) shall be null, void and without further force and effect
with respect to such Contributor Partner; (ii) that, this Section 5.2(B) shall
control, notwithstanding any reallocation or adjustment of taxable income, loss
or other items by the Internal Revenue Service or any other taxing authority;
provided, however, that neither the Partnership nor the General Partner (nor any
of their respective affiliates) is required to indemnify any Contributor Partner
(or its affiliates) for the loss of any tax benefit resulting from any
reallocation or adjustment of taxable income, loss or other items by the
Internal Revenue Service or other taxing authority; and (iii) that, during such
period as there are Contributor Partners in the Partnership, the provisions of
Section 5.2(B)(4) shall not be amended in a manner which adversely affects the
Contributor Partners (without the consent of each Contributor Partner so
affected).
(C) SPECIAL ALLOCATIONS. Except as otherwise provided in this
Agreement, the following special allocations will be made in the following order
and priority:
(1) PARTNERSHIP MINIMUM GAIN CHARGEBACK. Notwithstanding any
other provision of this Article V, if there is a net decrease in Partnership
Minimum Gain during any tax year or other period for which allocations are made,
each Partner will be specially allocated items of Partnership income and gain
for that tax year or other period (and, if necessary, subsequent periods) in an
amount equal to such Partner's share of the net decrease in Partnership Minimum
Gain during such tax year or other period determined in accordance with Treasury
Regulations Section 1.704-2(g). Allocations pursuant to the preceding sentence
shall be made in proportion to the respective amounts required to be allocated
to each Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Treasury Regulations Sections 1.704-2(f)(6) and
1.704-2(j)(2). This Section 5.2(C)(1) is intended to comply with the minimum
gain chargeback requirements set forth in Treasury Regulations Section
1.704-2(f) and shall be interpreted consistently therewith, including the
exceptions to the minimum gain chargeback requirement set forth in Treasury
Regulations Section 1.704-2(f) and (3). If the General Partner concludes, after
consultation with tax counsel, that the Partnership meets the requirements for a
waiver of the minimum gain chargeback requirement as set forth in Treasury
Regulations Section 1.704-2(f)(4), the General Partner may take steps reasonably
necessary or appropriate in order to obtain such waiver.
(2) PARTNER NONRECOURSE DEBT MINIMUM GAIN CHARGEBACK.
Notwithstanding any other provision of this Section (other than Section
5.2(C)(1) which shall be applied before this Section 5.2(C)(2)), if there is a
net decrease in Partner Minimum Gain during any tax year or other period for
which allocations are made, each Partner with a share of Partner Minimum Gain
determined in accordance with Treasury Regulations Section 1.704- 2(i)(5) shall
be specially allocated items of Partnership income and gain for that period
(and, if necessary, subsequent periods) in an amount equal to such Partner's
share of the net decrease in Partner Minimum Gain determined in accordance with
Treasury Regulations Section 1.704-2(i)(4). The items to be so allocated shall
be determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2)(ii). This Section 5.2(C)(2) is intended to comply with the minimum
gain chargeback requirements of Treasury Regulations Section
<PAGE> 25
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1.704-2(i)(4) and shall be interpreted consistently therewith, including the
exceptions set forth in Treasury Regulations Section 1.704-2(f)(2) and (3) to
the extent such exceptions apply to Treasury Regulations Sections 1.704-2(i)(4).
If the General Partner concludes, after consultation with tax counsel, that the
Partnership meets the requirements for a waiver of the Partner Minimum Gain
chargeback requirement set forth in Treasury Regulation 1.704-2(f), but only to
the extent such exception applies to Treasury Regulations Section 1.704-2(i)(4),
the General Partner may take steps necessary or appropriate to obtain such
waiver.
(3) QUALIFIED INCOME OFFSET. A Partner who unexpectedly
receives any adjustment, allocation or distribution described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) will be specially
allocated items of Partnership income and gain in an amount and manner
sufficient to eliminate, to the extent required by Treasury Regulations
1.704-1(b)(2)(ii)(d), the Adjusted Capital Account Deficit of the Partner as
quickly as possible, provided that an allocation pursuant to this Section
5.2(C)(3) shall be made if and only to the extent that such Partner would have
an Adjusted Capital Account Deficit after all other allocations provided for in
this Article V have been tentatively made as if this Section 5.2(C)(3) were not
contained in this Agreement.
(4) PARTNERSHIP NONRECOURSE DEDUCTIONS. Partnership
Nonrecourse Deductions for any taxable year or other period for which
allocations are made will be allocated among the Partners in proportion to their
respective Partnership Interests in the Partnership.
(5) PARTNER NONRECOURSE DEDUCTIONS. Notwithstanding anything
to the contrary in this Agreement, any Partner Nonrecourse Deductions for any
taxable year or other period for which allocations are made will be allocated to
the Partner who bears the economic risk of loss with respect to the liability to
which the Partner Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(i).
(6) CODE SECTION 754 ADJUSTMENTS. To the extent an adjustment
to the adjusted tax basis of any Partnership asset under Code Section 734(b) or
743(b) is required to be taken into account in determining Capital Accounts
under Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(2) or (4), the amount of
the adjustment to the Capital Accounts will be treated as an item of gain (if
the adjustment increases the basis of the asset) or loss (if the adjustment
decreases the basis of the asset), and the gain or loss will be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted under Treasury Regulations Section
1.704-1(b)(2)(iv)(m).
(7) DEPRECIATION RECAPTURE. In the event there is any
recapture of Depreciation or investment tax credit, the allocation thereof shall
be made among the Partners in the same proportion as the deduction for such
Depreciation or investment tax credit was allocated.
(8) INTEREST IN PARTNERSHIP. Notwithstanding any other
provision of this Agreement, no allocation of Profit or Loss (or item of Profit
or Loss) will be made to a Partner if the allocation would not have "economic
effect" under Treasury Regulations Section 1.704-1(b)(2)(ii)(a) or otherwise
would not be in accordance with the Partner's interest in the Partnership within
the meaning of Treasury Regulations Section 1.704-1(b)(3).
(D) CURATIVE ALLOCATIONS. The allocations set forth in Section
5.2(C)(1) through (8) (the "Regulatory Allocations") are intended to comply with
certain requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2.
The Regulatory Allocations may not be consistent with the manner in which the
Partners intend to divide Partnership distributions. Accordingly, the General
Partner is authorized to further allocate Profits, Losses, and other items among
the Partners in a reasonable manner so as to prevent the Regulatory Allocations
from distorting the manner in which Partnership distributions would be divided
among the Partners under Section 5.3, but for application of the Regulatory
Allocations. In general, the reallocation will be accomplished by specially
allocating
<PAGE> 26
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other Profits, Losses and items of income, gain, loss and deduction, to the
extent they exist, among the Partners so that the net amount of the Regulatory
Allocations and the special allocations to each Partner is zero. The General
Partner may accomplish this result in any reasonable manner that is consistent
with Code Section 704 and the related Treasury Regulations.
(E) TAX ALLOCATIONS.
(1) Except as otherwise provided in Section 5.2(E)(2), each
item of income, gain, loss and deduction shall be allocated for federal income
tax purposes in the same manner as each correlative item of income, gain, loss
or deduction, is allocated for book purposes pursuant to the provisions of
Section 5.1 hereof.
(2) Notwithstanding anything to the contrary in this Article
V, in an attempt to eliminate any Book-Tax Disparity with respect to a
Contributed Property, items of income, gain, loss or deduction with respect to
each such property shall be allocated for federal income tax purposes among the
Partners as follows:
(a) Depreciation, Amortization and Other Cost Recovery
Items. In the case of each Contributed Property with a
Book-Tax Disparity, any item of depreciation, amortization or
other cost recovery allowance attributable to such property
shall be allocated as follows: (x) first, to Partners (the
"Non-Contributing Partners") other than the Partners who
contributed such property to the Partnership (or are deemed to
have contributed the property pursuant to Section 4.1(A) (the
"Contributing Partners") in an amount up to the book
allocation of such items made to the NonContributing Partners
pursuant to Section 5.1 hereof, pro rata in proportion to the
respective amount of book items so allocated to the
Non-Contributing Partners pursuant to Section 5.1 hereof; and
(y) any remaining depreciation, amortization or other cost
recovery allowance to the Contributing Partners in proportion
to their Percentage Interests. In no event shall the total
depreciation, amortization or other cost recovery allowance
allocated hereunder exceed the amount of the Partnership's
depreciation, amortization or other cost recovery allowance
with respect to such property.
(b) Gain or Loss on Disposition. In the event the
Partnership sells or otherwise disposes of a Contributed
Property with a Book-Tax Disparity, any gain or loss
recognized by the Partnership in connection with such sale or
other disposition shall be allocated among the Partners as
follows: (x) first, any gain or loss shall be allocated to the
Contributing Partners in proportion to their Percentage
Interests to the extent required to eliminate any Book-Tax
Disparity with respect to such property; and (y) any remaining
gain or loss shall be allocated among the Partners in the same
manner that the correlative items of book gain or loss are
allocated among the Partners pursuant to Section 5.1 hereof.
(3) In the event the Book Value of a Partnership Asset
(including a Contributed Property) is adjusted pursuant to Section 4.4(D)
hereof, all items of income, gain, loss or deduction in respect of such property
shall be allocated for federal income tax purposes among the Partners in the
same manner as provided in Section 5.2(E)(2) hereof to take into account any
variation between the fair market value of the property, as determined by the
General Partner using such reasonable method of valuation as it may adopt, and
the Book Value of such property, both determined as of the date of such
adjustment.
(4) The General Partner shall have the authority to elect
alternative methods to eliminate the Book- Tax Disparity with respect to one or
more Contributed Properties, as permitted by Treasury Regulations Sections
1.704-3 and 1.704-3T, and such election shall be binding on all of the Partners.
<PAGE> 27
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(5) The Partners hereby intend that the allocation of tax
items pursuant to this Section 5.2(E) comply with the requirements of Code
Section 704(c) and Treasury Regulations Sections 1.704-3 and 1.704-3T.
(6) The allocation of items of income, gain, loss or deduction
pursuant to this Section 5.2(E) are solely for federal, state and local income
tax purposes, and the Capital Account balances of the Partners shall be adjusted
solely for allocations of "book" items in respect of Partnership Assets pursuant
to Section 5.1 hereof.
(F) OTHER ALLOCATION RULES. The following rules will apply to the
calculation and allocation of Profits, Losses and other items:
(1) Except as otherwise provided in the Agreement, all
Profits, Losses and other items allocated to the Partners will be allocated
among them in proportion to their Percentage Interests.
(2) For purposes of determining the Profits, Losses or any
other item allocable to any period, Profits, Losses and other items will be
determined on a daily, monthly or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the related
Treasury Regulations.
(3) Except as otherwise provided in this Agreement, all items
of Partnership income, gain, loss and deduction, and other allocations not
provided for in this Agreement will be divided among the Partners in the same
proportions as they share Profits and Losses, provided that any credits shall be
allocated in accordance with Treasury Regulations Section 1.704-1(b)(4)(ii).
(4) For purposes of Treasury Regulations Section 1.752-3(a),
the Partners hereby agree that any Nonrecourse Liabilities of the Partnership in
excess of the sum of (i) the Partnership Minimum Gain and (ii) the aggregate
amount of taxable gain that would be allocated to the Partners under Section
704(c) (or in the same manner as Section 704(c) in connection with a revaluation
of Partnership property) if the Partnership disposed of (in a taxable
transaction) all Partnership property subject to one or more Nonrecourse
Liabilities of the Partnership in full satisfaction of such Liabilities and for
no other consideration, shall be allocated among the Partners in accordance with
their respective shares of Profits. The General Partner shall have discretion in
any Fiscal Year to allocate such excess Nonrecourse Liabilities among the
Partners (a) in a manner reasonably consistent with allocations (that have
substantial economic effect) of some other significant item of Partnership
income or gain or (b) in accordance with the manner in which it is reasonably
expected that the deductions attributable to the excess Nonrecourse Liabilities
will be allocated.
(G) PARTNER ACKNOWLEDGMENT. The Partners agree to be bound by the
provisions of this Section 5.2 in reporting their shares of Partnership income,
gain, loss, deduction and credit for income tax purposes.
(H) REGULATORY COMPLIANCE. The foregoing provisions of this
Section 5.2 relating to the allocation of Profits, Losses and other items for
federal income tax purposes are intended to comply with Treasury Regulations
Sections 1.704-1(b), 1.704-2, 1.704-3 and 1.704-3T and shall be interpreted and
applied in a manner consistent with such Treasury Regulations.
(I) CLASS B PRIORITY ALLOCATION. The holders of the Class B Units
shall be allocated gross income such that, from the inception of the Partnership
through the end of the Fiscal Year to which the allocation relates, including
the year of liquidation of the Partnership in accordance with Article X, the sum
of all priority allocations pursuant to this Section 5.2(I) equals (or
approaches as nearly as possible) the sum of all Class B Priority Return Amounts
accrued through the end of the Fiscal Year to which the allocation relates.
<PAGE> 28
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(J) CLASS C PRIORITY ALLOCATION. The holders of the Class C Units
shall be allocated gross income such that, from the inception of the partnership
through the end of the Fiscal Year to which the allocation relates, including
the year of liquidation of the Partnership in accordance with Article X, the sum
of all priority allocations pursuant to this Section 5.2(J) equals (or
approaches as nearly as possible) the sum of all Class C Priority Return Amounts
accrued through the end of the fiscal year to which the allocation relates.
(K) CLASS D PRIORITY ALLOCATION. The holders of Class D Units
shall be allocated gross income such that, from the inception of the partnership
through the end of the fiscal year to which the allocation relates, including
the year of liquidation of the Partnership in accordance with Article X, the sum
of all priority allocations pursuant to this Section 5.2(K) equals (or
approaches as nearly as possible) the sum of all Class D Priority Return Amounts
accrued through the end of the fiscal year to which the allocation relates.
(L) CLASS E PRIORITY ALLOCATION. The holders of Class E Units
shall be allocated gross income such that, from the inception of the partnership
through the end of the fiscal year to which the allocation relates, including
the year of liquidation of the Partnership in accordance with Article X, the sum
of all priority allocations pursuant to this Section 5.2(L) equals (or
approaches as nearly as possible) the sum of all Class E Priority Return Amounts
accrued through the end of the fiscal year to which the allocation relates.
SECTION 5.3 DISTRIBUTIONS.
(A) The General Partner shall cause the Partnership to distribute
to the holder of each Class B Unit an amount in cash equal to the cumulative
undistributed Class B Priority Return Amount with respect to each such unit
(provided that the amount distributable pursuant to this Section 5.3(A) shall
not be in excess of the Distributable Cash) on March 31, June 30, September 30
and December 31 of each year, commencing on June 30, 1997 (or in the case of a
Class B Unit with a Class B Deemed Original Issue Date after June 30, 1997, on
the first such distribution date following the applicable Class B Deemed
Original Issue Date); provided that, if any such distribution date shall be a
Saturday, Sunday or day on which banking institutions in the State of New York
are authorized or obligated by law to close, or a day which is declared a
national or New York State holiday (any of the foregoing, a "Non-business Day"),
then such distribution shall be made on the next succeeding day which is not a
Non-business Day. Class B Priority Return Amounts that are distributable with
respect to a period greater or less than a full Class B Distribution Period
shall be computed on the basis of a 360-day year consisting of 12 30-day months.
(B) The General Partner shall cause the Partnership to distribute
to the holder of each Class C Unit an amount in cash equal to the cumulative
undistributed Class C Priority Return Amount with respect to each such unit
(provided that the amount distributable pursuant to this Section 5.3(B) shall
not be in excess of the Distributable Cash) on March 31, June 30, September 30
and December 31 of each year, commencing on September 30, 1997 (or in the case
of a Class C Unit with a Class C Deemed Original Issue Date after September 30,
1997, on the first such distribution date following the applicable Class C
Deemed Original Issue Date); provided that, if any such distribution date shall
be a Saturday, Sunday or day on which banking institutions in the State of New
York are authorized or obligated by law to close, or a day which is declared a
national or New York State holiday (any of the foregoing, a "Non-business Day"),
then such distribution shall be made on the next succeeding day which is not a
Non-business Day. Class C Priority Return Amounts that are distributable with
respect to a period greater or less than a full Class C Distribution Period
shall be computed on the basis of a 360-day year consisting of 12 30-day months.
(C) The General Partner shall cause the Partnership to distribute
to the holder of each Class D Unit an amount in cash equal to the cumulative
undistributed Class D Priority Return Amount with respect to each such
<PAGE> 29
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unit (provided that the amount distributable pursuant to this Section 5.3(C)
shall not be in excess of the Distributable Cash) on March 31, June 30,
September 30 and December 31 of each year, commencing on March 31, 1998 (or in
the case of a Class D Unit with a Class D Deemed Original Issue Date after March
31, 1998, on the first such distribution date following the applicable Class D
Deemed Original Issue Date); provided that, if any such distribution date shall
be a Saturday, Sunday or day on which banking institutions in the State of New
York are authorized or obligated by law to close, or a day which is declared a
national or New York State holiday (any of the foregoing, a "Non-business Day"),
then such distribution shall be made on the next succeeding day which is not a
Non-business Day. Class D Priority Return Amounts that are distributable with
respect to a period greater or less than a full Class D Distribution Period
shall be computed on the basis of a 360-day year consisting of 12 30-day months.
(D) The General Partner shall cause the Partnership to distribute
to the holder of each Class E Unit an amount in cash equal to the cumulative
undistributed Class E Priority Return Amount with respect to each such unit
(provided that the amount distributable pursuant to this Section 5.3(D) shall
not be in excess of the Distributable Cash) on March 31, June 30, September 30
and December 31 of each year, commencing on June 30, 1998 (or in the case of a
Class E Unit with a Class E Deemed Original Issue Date after June 30, 1998, on
the first such distribution date following the applicable Class E Deemed
Original Issue Date); provided that, if any such distribution date shall be a
Saturday, Sunday or day on which banking institutions in the State of New York
are authorized or obligated by law to close, or a day which is declared a
national or New York State holiday (any of the foregoing, a "Non-business Day"),
then such distribution shall be made on the next succeeding day which is not a
Non-business Day. Class E Priority Return Amounts that are distributable with
respect to a period greater or less than a full Class E Distribution Period
shall be computed on the basis of a 360-day year consisting of 12 30-day months.
(E) After giving effect to Sections 5.3(A), (B), (C) and (D), if
applicable, the General Partner shall have the authority to cause the
Partnership to make distributions from time to time as it determines, including
without limitation, distributions which are sufficient to enable the General
Partner to (i) maintain its status as a REIT, (ii) avoid the imposition of any
tax under Code Section 857 and (iii) avoid the imposition of any excise tax
under Code Section 4981. Except as otherwise expressly set forth in this Section
5.3(E), all Distributions pursuant to this Section 5.3 shall be made on a pari
passu basis.
(F) Distributions pursuant to Section 5.3(E) shall be made pro
rata among the Partners of record on the Record Date established by the General
Partner for the distribution, in accordance with their respective Percentage
Interests, without regard to the length of time the record holder has been such
except that the first distribution paid on Units issued after June 1, 1996 shall
be pro rated to reflect the actual portion of the period for which the
distribution is being paid during which such Units were outstanding, or shall be
in such other amount or computed on such other basis as may be agreed by the
General Partner and the holders of such Units, provided that such other amount
or the amount so computed, as applicable, may not exceed the aforementioned pro
rated amount.
(G) The General Partner shall use its reasonable efforts to make
distributions to the Partners so as to preclude any distribution or portion
thereof from being treated as part of a sale of property to the Partnership by a
Partner under Section 707 of the Code or the Treasury Regulations thereunder;
provided that the General Partner and the Partnership shall not have liability
to a Limited Partner under any circumstances as a result of any distribution to
a Partner being so treated.
SECTION 5.4 DISTRIBUTION UPON REDEMPTION. Notwithstanding any other
provision hereof, proceeds of (i) a Class B Redemption shall be distributed to
the Class B Limited Partner in accordance with Section 9.1(C), (ii) a Class C
Redemption shall be distributed to the Class C Limited Partner in accordance
with Section 9.1(D),
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(iii) a Class D Redemption shall be distributed to the Class D Limited Partner
in accordance with Section 9.1(E) and (iv) a Class E Redemption shall be
distributed to the Class E Limited Partner in accordance with Section 9.1(F).
SECTION 5.5 DISTRIBUTIONS UPON LIQUIDATION. Notwithstanding any other
provision hereof, proceeds of a Terminating Capital Transaction shall be
distributed to the Partners in accordance with Section 10.2.
SECTION 5.6 AMOUNTS WITHHELD. All amounts withheld pursuant to the Code
or any provision of state or local tax law and Section 7.6 of this Agreement
with respect to any allocation, payment or distribution to the General Partner,
the Class B Limited Partner, the Class C Limited Partner, the Class D Limited
Partner, the Class E Limited Partner, the Limited Partners or Assignees shall be
treated as amounts distributed to such General Partner, the Class B Limited
Partner, the Class C Limited Partner, the Class D Limited Partner, the Class E
Limited Partner, the Limited Partners or Assignees, as applicable, pursuant to
Section 5.3 of this Agreement.
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ARTICLE VI - PARTNERSHIP MANAGEMENT
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SECTION 6.1 MANAGEMENT AND CONTROL OF PARTNERSHIP BUSINESS.
(A) Except as otherwise expressly provided or limited by the
provisions of this Agreement, the General Partner shall have full, exclusive and
complete discretion to manage the business and affairs of the Partnership, to
make all decisions affecting the business and affairs of the Partnership and to
take all such action as it deems necessary or appropriate to accomplish the
purposes of the Partnership as set forth herein. Except as set forth in this
Agreement, the Limited Partners shall not have any authority, right, or power to
bind the Partnership, or to manage, or to participate in the management of the
business and affairs of the Partnership in any manner whatsoever. Such
management shall in every respect be the full and complete responsibility of the
General Partner alone as herein provided.
(B) In carrying out the purposes of the Partnership, the General
Partner shall be authorized to take all actions it deems necessary and
appropriate to carry on the business of the Partnership. The Limited Partners,
the Class B Limited Partner, the Class C Limited Partner, the Class D Limited
Partner and the Class E Limited Partner, by execution hereof, agree that the
General Partner is authorized to execute, deliver and perform any agreement
and/or transaction on behalf of the Partnership.
(C) The General Partner and its Affiliates may acquire Limited
Partner Interests from Limited Partners who agree so to transfer Limited Partner
Interests or from the Partnership in accordance with Section 4.2(a). Any Limited
Partner Interest acquired by the General Partner shall be converted into a
General Partner Interest. Upon acquisition of any Limited Partner Interest, any
Affiliate of the General Partner shall have all the rights of a Limited Partner.
SECTION 6.2 NO MANAGEMENT BY LIMITED PARTNERS; LIMITATION OF
LIABILITY.
(A) Neither the Limited Partners, in their capacity as Limited
Partners, the Class B Limited Partner, in its capacity as Class B Limited
Partner, the Class C Limited Partner, in its capacity as Class C Limited
Partner, the Class D Limited Partner, in its capacity as Class D Limited
Partner, nor the Class E Limited Partner, in its capacity as Class E Limited
Partner, shall take part in the day-to-day management, operation or control of
the business and affairs of the Partnership or have any right, power, or
authority to act for or on behalf of or to bind the Partnership or transact any
business in the name of the Partnership. Neither the Limited Partners, the Class
B
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Limited Partner, in its capacity as Class B Limited Partner, the Class C Limited
Partner, in its capacity as Class C Limited Partner, the Class D Limited
Partner, in its capacity as Class D Limited Partner, nor the Class E Limited
Partner, in its capacity as Class E Limited Partner, shall have any rights other
than those specifically provided herein or granted by law where consistent with
a valid provision hereof. Any approvals rendered or withheld by the Limited
Partners, the Class B Limited Partner, the Class C Limited Partner, the Class D
Limited Partner or the Class E Limited Partner pursuant to this Agreement shall
be deemed as consultation with or advice to the General Partner in connection
with the business of the Partnership and, in accordance with the Act, shall not
be deemed as participation by the Limited Partners, the Class B Limited Partner,
the Class C Limited Partner, the Class D Limited Partner or the Class E Limited
Partner in the business of the Partnership and are not intended to create any
inference that the Limited Partners, the Class B Limited Partner, the Class C
Limited Partner, the Class D Limited Partner or the Class E Limited Partner
should be classified as general partners under the Act.
(B) Neither the Limited Partner, the Class B Limited Partner, the
Class C Limited Partner, the Class D Limited Partner nor the Class E Limited
Partner shall have any liability under this Agreement except with respect to
withholding under Section 7.6, in connection with a violation of any provision
of this Agreement by such Limited Partner, the Class B Limited Partner, the
Class C Limited Partner, the Class D Limited Partner or the Class E Limited
Partner or as provided in the Act.
(C) The General Partner shall not take any action which would
subject a Limited Partner (in its capacity as Limited Partner), the Class B
Limited Partner (in its capacity as Class B Limited Partner), the Class C
Limited Partner (in its capacity as Class C Limited Partner), the Class D
Limited Partner (in its capacity as Class D Limited Partner) or the Class E
Limited Partner (in its capacity as Class E Limited Partner) to liability as a
general partner.
SECTION 6.3 LIMITATIONS ON PARTNERS.
(A) No Partner or Affiliate of a Partner shall have any authority
to perform (i) any act in violation of any applicable law or regulation
thereunder, (ii) any act prohibited by Section 6.2(C), or (iii) any act which is
required to be Consented to or ratified pursuant to this Agreement without such
Consent or ratification.
(B) No action shall be taken by a Partner if it would cause the
Partnership to be treated as an association taxable as a corporation for federal
income tax purposes or, without the consent of the General Partner, as a
publicly-traded partnership within the meaning of Section 7704 of the Code. A
determination of whether such action will have the above described effect shall
be based upon a declaratory judgment or similar relief obtained from a court of
competent jurisdiction, a favorable ruling from the IRS or the receipt of an
opinion of counsel.
SECTION 6.4 BUSINESS WITH AFFILIATES.
(A) The General Partner, in its discretion, may cause the
Partnership to transact business with any Partner or its Affiliates for goods or
services reasonably required in the conduct of the Partnership's business;
provided that any such transaction shall be effected only on terms competitive
with those that may be obtained in the marketplace from unaffiliated Persons.
The foregoing proviso shall not apply to transactions between the Partnership
and its Subsidiaries. In addition, neither the General Partner nor any Affiliate
of the General Partner may sell, transfer or otherwise convey any property to,
or purchase any property from, the Partnership, except (i) on terms competitive
with those that may be obtained in the marketplace from unaffiliated Persons or
(ii) where the General Partner determines, in its sole judgment, that such sale,
transfer or conveyance confers benefits on the General Partner or the
Partnership in respect of matters of tax or corporate or financial structure;
provided, in the
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case of this clause (ii), such sale, transfer, or conveyance is not being
effected for the purpose of materially disadvantaging the Limited Partners.
(B) In furtherance of Section 6.4(A), the Partnership may lend or
contribute to its Subsidiaries on terms and conditions established by the
General Partner.
SECTION 6.5 COMPENSATION; REIMBURSEMENT OF EXPENSES. In consideration
for the General Partner's services to the Partnership in its capacity as General
Partner, the Partnership shall pay on behalf of or reimburse to the General
Partner (i) all expenses of the General Partner incurred in connection with the
management of the business and affairs of the Partnership, including all
employee compensation of employees of the General Partner and indemnity or other
payments made pursuant to agreements entered into in furtherance of the
Partnership's business, (ii) all amounts payable by the General Partner under
the Registration Rights Agreement and (iii) all general and administrative
expenses incurred by the General Partner. Except as otherwise set forth in this
Agreement, the General Partner shall be fully and entirely reimbursed by the
Partnership for any and all direct and indirect costs and expenses incurred in
connection with the organization and continuation of the Partnership pursuant to
this Agreement. In addition, the General Partner shall be reimbursed for all
expenses incurred by the General Partner in connection with (i) the initial
public offering of REIT Shares by the General Partner and (ii) any other
issuance of additional Partnership Interests or REIT Shares.
SECTION 6.6 LIABILITY FOR ACTS AND OMISSIONS.
(A) The General Partner shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or any of the other
Partners for any act or omission performed or omitted in good faith on behalf of
the Partnership and in a manner reasonably believed to be (i) within the scope
of the authority granted by this Agreement and (ii) in the best interests of the
Partnership or the stockholders of the General Partner. In exercising its
authority hereunder, the General Partner may, but shall not be under any
obligation to, take into account the tax consequences to any Partner of any
action it undertakes on behalf of the Partnership. Neither the General Partner
nor the Partnership shall have any liability as a result of any income tax
liability incurred by a Partner as a result of any action or inaction of the
General Partner hereunder and, by their execution of this Agreement, the Limited
Partners acknowledge the foregoing.
(B) Unless otherwise prohibited hereunder, the General Partner
shall be entitled to exercise any of the powers granted to it and perform any of
the duties required of it under this Agreement directly or through any agent.
The General Partner shall not be responsible for any misconduct or negligence on
the part of any agent; provided that the General Partner selected or appointed
such agent in good faith.
(1) The General Partner acknowledges that it owes fiduciary
duties both to its stockholders and to the Limited Partners and it shall use its
reasonable efforts to discharge such duties to each; provided, however, that in
the event of a conflict between the interests of the stockholders of the General
Partner and the interests of the Limited Partners, the Limited Partners agree
that the General Partner shall discharge its fiduciary duties to the Limited
Partners by acting in the best interests of the General Partner's stockholders.
Nothing contained in the preceding sentence shall be construed as entitling the
General Partner to realize any profit or gain from any transaction between the
General Partner and the Partnership (except in connection with a distribution in
accordance with this Agreement), including from the lending of money by the
General Partner to the Partnership or the contribution of property by the
General Partner to the Partnership, it being understood that in any such
transaction the General Partner shall be entitled to cost recovery only.
<PAGE> 33
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SECTION 6.7 INDEMNIFICATION.
(A) The Partnership shall indemnify the General Partner and each
director, officer and stockholder of the General Partner and each Person
(including any Affiliate) designated as an agent by the General Partner in its
reasonable discretion (each, an "Indemnified Party") to the fullest extent
permitted under the Act (including any procedures set forth therein regarding
advancement of expenses to such Indemnified Party) from and against any and all
losses, claims, damages, liabilities, expenses (including reasonable attorneys'
fees), judgments, fines, settlements and any other amounts arising out of or in
connection with any claims, demands, actions, suits or proceedings (civil,
criminal or administrative) relating to or resulting (directly or indirectly)
from the operations of the Partnership, in which such Indemnified Party becomes
involved, or reasonably believes it may become involved, as a result of the
capacity referred to above.
(B) The Partnership shall have the authority to purchase and
maintain such insurance policies on behalf of the Indemnified Parties as the
General Partner shall determine, which policies may cover those liabilities the
General Partner reasonably believes may be incurred by an Indemnified Party in
connection with the operation of the business of the Partnership. The right to
procure such insurance on behalf of the Indemnified Parties shall in no way
mitigate or otherwise affect the right of any such Indemnified Party to
indemnification pursuant to Section 6.7(A) hereof.
(C) The provisions of this Section 6.7 are for the benefit of the
Indemnified Parties, their heirs, successors, assigns and administrators and
shall not be deemed to create any rights in or benefit to any other Person.
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ARTICLE VII - ADMINISTRATIVE, FINANCIAL AND TAX MATTERS
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SECTION 7.1 BOOKS AND RECORDS. The General Partner shall maintain at
the office of the Partnership full and accurate books of the Partnership showing
all receipts and expenditures, assets and liabilities, profits and losses, names
and current addresses of Partners, and all other records necessary for recording
the Partnership's business and affairs. Each Limited Partner shall have, upon
written demand and at such Limited Partner's expense, the right to receive true
and complete information regarding Partnership matters to the extent required
(and subject to the limitations) under Delaware law.
SECTION 7.2 ANNUAL AUDIT AND ACCOUNTING. The books and records of the
Partnership shall be kept for financial and tax reporting purposes on the
accrual basis of accounting in accordance with generally accepted accounting
principles ("GAAP"). The accounts of the Partnership shall be audited annually
by a nationally recognized accounting firm of independent public accountants
selected by the General Partner (the "Independent Accountants").
SECTION 7.3 PARTNERSHIP FUNDS. The General Partner shall have
responsibility for the safekeeping and use of all funds and assets of the
Partnership, whether or not in its direct or indirect possession or control. All
funds of the Partnership not otherwise invested shall be deposited in one or
more accounts maintained in such banking institutions as the General Partner
shall determine, and withdrawals shall be made only in the regular course of
Partnership business on such signatures as the General Partner may from time to
time determine.
SECTION 7.4 REPORTS AND NOTICES. The General Partner shall provide all
Partners with the following reports no later than the dates indicated or as soon
thereafter as circumstances permit:
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(A) By March 31 of each year, IRS Form 1065 and Schedule K-1, or
similar forms as may be required by the IRS, stating each Partner's allocable
share of income, gain, loss, deduction or credit for the prior Fiscal Year;
(B) Within ninety (90) days after the end of each of the first
three (3) fiscal quarters, as of the last day of the fiscal quarter, a report
containing unaudited financial statements of the Partnership, or of the General
Partner if such statements are prepared on a consolidated basis with the General
Partner, and such other information as may be legally required or determined to
be appropriate by the General Partner; and
(C) Within one hundred twenty (120) days after the end of each
Fiscal Year, as of the close of the Fiscal Year, an annual report containing
audited financial statements of the Partnership, or of the General Partner if
such statements are prepared on a consolidated basis with the General Partner,
presented in accordance with GAAP and certified by the Independent Accountants.
SECTION 7.5 TAX MATTERS.
(A) The General Partner shall be the Tax Matters Partner of the
Partnership for federal income tax matters pursuant to Code Section
6231(a)(7)(A). The Tax Matters Partner is authorized and required to represent
the Partnership (at the expense of the Partnership) in connection with all
examinations of the affairs of the Partnership by any federal, state, or local
tax authorities, including any resulting administrative and judicial
proceedings, and to expend funds of the Partnership for professional services
and costs associated therewith. The Tax Matters Partner shall deliver to the
Limited Partners within ten (10) business days of the receipt thereof a copy of
any notice or other communication with respect to the Partnership received from
the IRS (or other governmental tax authority), or any court, in each case with
respect to any administrative or judicial proceeding involving the Partnership.
The Partners agree to cooperate with each other in connection with the conduct
of all proceedings pursuant to this Section 7.5(A).
(B) The Tax Matters Partner shall receive no compensation for its
services in such capacity. If the Tax Matters Partner incurs any costs related
to any tax audit, declaration of any tax deficiency or any administrative
proceeding or litigation involving any Partnership tax matter, such amount shall
be an expense of the Partnership and the Tax Matters Partner shall be entitled
to full reimbursement therefor.
(C) The General Partner shall cause to be prepared all federal,
state and local income tax returns required of the Partnership at the
Partnership's expense.
(D) Except as set forth herein, the General Partner shall
determine whether to make (and, if necessary, revoke) any tax election available
to the Partnership under the Code or any state tax law; provided, however, upon
the request of any Partner, the General Partner shall make the election under
Code Section 754 and the Treasury Regulations promulgated thereunder. The
Partnership shall elect to deduct expenses, if any, incurred by it in organizing
the Partnership in accordance with the provisions of Code Section 709.
SECTION 7.6 WITHHOLDING. Each Partner hereby authorizes the Partnership
to withhold from or pay to any taxing authority on behalf of such Partner any
tax that the General Partner determines the Partnership is required to withhold
or pay with respect to any amount distributable or allocable to such Partner.
Any amount paid to any taxing authority which does not constitute a reduction in
the amount otherwise distributable to such Partner shall be treated as a loan
from the Partnership to such Partner, which loan shall bear interest at the
"prime rate" as published from time to time in The Wall Street Journal plus two
(2) percentage points, and shall be repaid within ten (10) business days after
request for repayment from the General Partner. The obligation to repay any such
loan
<PAGE> 35
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shall be secured by such Partner's Partnership Interest and each Partner hereby
grants the Partnership a security interest in his Partnership Interest for the
purposes set forth in this Section 7.6, this Section 7.6 being intended to serve
as a security agreement for purposes of the Uniform Commercial Code with the
General Partner having in respect hereof all of the remedies of a secured party
under the Uniform Commercial Code. Each Partner agrees to take such reasonable
actions as the General Partner may request to perfect and continue the
perfection of the security interest granted hereby. In the event any Partner
fails to repay any deemed loan pursuant to this Section 7.6 the Partnership
shall be entitled to avail itself of any rights and remedies it may have.
Furthermore, upon the expiration of ten (10) business days after demand for
payment, the General Partner shall have the right, but not the obligation, to
make the payment to the Partnership on behalf of the defaulting Partner and
thereupon be subrogated to the rights of the Partnership with respect to such
defaulting Partner.
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ARTICLE VIII - TRANSFER OF PARTNERSHIP INTERESTS; ADMISSIONS OF PARTNERS
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SECTION 8.1 TRANSFER BY GENERAL PARTNER. The General Partner may not
voluntarily withdraw or Transfer all or any portion of its General Partner
Interest. Notwithstanding the foregoing, the General Partner may pledge its
General Partner Interest in furtherance of the Partnership's business (including
without limitation, in connection with a loan agreement under which the
Partnership is a borrower) without the consent of any Partner.
SECTION 8.2 OBLIGATIONS OF A PRIOR GENERAL PARTNER. Upon an Involuntary
Withdrawal of the General Partner and the subsequent Transfer of the General
Partner's Interest, such General Partner shall (i) remain liable for all
obligations and liabilities (other than Partnership liabilities payable solely
from Partnership Assets) incurred by it as General Partner before the effective
date of such event and (ii) pay all costs associated with the admission of its
Successor General Partner. However, such General Partner shall be free of and
held harmless by the Partnership against any obligation or liability incurred on
account of the activities of the Partnership from and after the effective date
of such event, except as provided in this Agreement.
SECTION 8.3 SUCCESSOR GENERAL PARTNER. A successor to all of a General
Partner's General Partner Interest who is proposed to be admitted to the
Partnership as a Successor General Partner shall be admitted as the General
Partner, effective upon the Transfer. Any such transferee shall carry on the
business of the Partnership without dissolution. In addition, the following
conditions must be satisfied:
(A) The Person shall have accepted and agreed to be bound by all
the terms and provisions of this Agreement by executing a counterpart thereof
and such other documents or instruments as may be required or appropriate in
order to effect the admission of such Person as a General Partner; and
(B) An amendment to this Agreement evidencing the admission of
such Person as a General Partner shall have been executed by all General
Partners and an amendment to the Certificate shall have been filed for
recordation as required by the Act.
(C) Any consent required under Section 10.1(A) shall have been
obtained.
SECTION 8.4 RESTRICTIONS ON TRANSFER AND WITHDRAWAL BY LIMITED
PARTNER.
(A) Subject to the provisions of Section 8.4(D), no Limited
Partner may Transfer all or any portion of his Partnership Interest without
first obtaining the Consent of the General Partner, which Consent may be granted
or withheld in the sole and absolute discretion of the General Partner. Any such
purported transfer undertaken
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without such Consent shall be considered to be null and void ab initio and shall
not be given effect. Each Limited Partner acknowledges that the General Partner
has agreed not to grant any such consent prior to the Transfer Restriction Date.
(B) No Limited Partner may withdraw from the Partnership other
than as a result of a permitted Transfer (i.e., a Transfer consented to as
contemplated by clause (A) above or clause (D) below or a Transfer pursuant to
clause (C) below) of all of his Partnership Units pursuant to this Article VIII
or pursuant to a redemption or exchange of all of his Partnership Units pursuant
to Article IX. Upon the permitted Transfer or redemption of all of a Limited
Partner's Partnership Units, such Limited Partner shall cease to be a Limited
Partner.
(C) Upon the Involuntary Withdrawal of any Limited Partner (which
shall under no circumstance cause the dissolution of the Partnership), the
executor, administrator, trustee, guardian, receiver or conservator of such
Limited Partner's estate shall become a Substituted Limited Partner upon
compliance with the provisions of Section 8.5(A)(1)-(3).
(D) Subject to clause (E) below, a Limited Partner may Transfer,
with the Consent of the General Partner, all or a portion of his Partnership
Units to (a) a parent or parents, spouse, natural or adopted descendant or
descendants, spouse of such a descendant, or brother or sister, or a trust
created by such Limited Partner for the benefit of such Limited Partner and/or
any such person(s), of which trust such Limited Partner or any such person(s) is
a trustee, (b) a corporation controlled by a Person or Persons named in (a)
above, or (c) if the Limited Partner is an entity, its beneficial owners, and
the General Partner shall grant its Consent to any Transfer pursuant to this
Section 8.4(D) unless such Transfer, in the reasonable judgment of the General
Partner, would cause (or have the potential to cause) the General Partner to
fail to qualify for taxation as a REIT, in which case the General Partner shall
have the absolute right to refuse to permit such Transfer, and any purported
Transfer in violation of this Section 8.4(D) shall be null and void ab initio.
(E) No Transfer of Limited Partnership Units shall be made if such
Transfer would (i) in the opinion of Partnership counsel, cause the Partnership
to be terminated for federal income tax purposes or to be treated as an
association taxable as a corporation (rather than a partnership) for federal
income tax purposes; (ii) be effected through an "established securities market"
or a "secondary market (or the substantial equivalent thereof)" within the
meaning of Code Section 7704 and the Treasury Regulations thereunder, (iii) in
the opinion of Partnership counsel, violate the provisions of applicable
securities laws; (iv) violate the terms of (or result in a default or
acceleration under) any law, rule, regulation, agreement or commitment binding
on the Partnership; (v) cause the Partnership to become, with respect to any
employee benefit plan subject to Title I of ERISA, a "party-in-interest" (as
defined in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975(e) of the Code); (vi) in the opinion of counsel to the Partnership,
cause any portion of the underlying assets of the Partnership to constitute
assets of any employee benefit plan pursuant to Department of Labor Regulations
Section 2510.3-101; or (vii) result in a deemed distribution to any Partner
attributable to a failure to meet the requirements of Treasury Regulations
Section 1.752-2(d)(1), unless such Partner consents thereto.
(F) Prior to the consummation of any Transfer under this Section
8.4, the transferor and/or the transferee shall deliver to the General Partner
such opinions, certificates and other documents as the General Partner shall
request in connection with such Transfer.
SECTION 8.5 SUBSTITUTED LIMITED PARTNER.
(A) No transferee shall become a Substituted Limited Partner in
place of his assignor unless and until the following conditions have been
satisfied:
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(1) The assignor and transferee file a Notice or other
evidence of Transfer and such other information reasonably required by the
General Partner, including, without limitation, names, addresses and telephone
numbers of the assignor and transferee;
(2) The transferee executes, adopts and acknowledges this
Agreement, or a counterpart hereto, and such other documents as may be
reasonably requested by the General Partner, including without limitation, all
documents necessary to comply with applicable tax and/or securities rules and
regulations;
(3) The assignor or transferee pays all costs and fees
incurred or charged by the Partnership to effect the Transfer and substitution;
and
(4) The assignor or transferee obtains the written Consent of
the General Partner, which may be given or withheld in its sole and absolute
discretion.
(B) If a transferee of a Limited Partner does not become a
Substituted Limited Partner pursuant to Section 8.5(A), such transferee shall be
an Assignee and shall not have any rights to require any information on account
of the Partnership's business, to inspect the Partnership's books or to vote or
otherwise take part in the affairs of the Partnership (such Partnership Units
being deemed to have been voted in the same proportion as all other Partnership
Units held by Limited Partners have been voted). Such Assignee shall be
entitled, however, to all the rights of an assignee of a limited partnership
interest under the Act. Any Assignee wishing to Transfer the Partnership Units
acquired shall be subject to the restrictions set forth in this Article VIII.
SECTION 8.6 TIMING AND EFFECT OF TRANSFERS. Unless the General Partner
agrees otherwise, Transfers under this Article VIII may only be made as of the
first day of a fiscal quarter of the Partnership. Upon any Transfer of a
Partnership Interest in accordance with this Article VIII or redemption of a
Partnership Interest in accordance with Article IX, the Partnership shall
allocate all items of Profit and Loss between the assignor Partner and the
transferee Partner in accordance with Section 5.2(F)(2) hereof. The assignor
Partner shall have the right to receive all distributions as to which the Record
Date precedes the date of Transfer and the transferee Partner shall have the
right to receive all distributions thereafter.
SECTION 8.7 ADDITIONAL LIMITED PARTNERS. Other than in accordance with
the transactions specified in the Contribution Agreements, after the initial
execution of this Agreement and the admission to the Partnership of the Initial
Limited Partners, any Person making a Capital Contribution to the Partnership in
accordance herewith shall be admitted as an Additional Limited Partner of the
Partnership only (i) with the Consent of the General Partner and (ii) upon
execution, adoption and acknowledgment of this Agreement, or a counterpart
hereto, and such other documents as may be reasonably requested by the General
Partner, including without limitation, the power of attorney required under
Section 12.3. Upon satisfaction of the foregoing requirements, such Person shall
be admitted as an Additional Limited Partner effective on the date upon which
the name of such Person is recorded on the books of the Partnership.
SECTION 8.8 AMENDMENT OF AGREEMENT AND CERTIFICATE. Upon any admission
of a Person as a Partner to the Partnership, the General Partner shall make any
necessary amendment to this Agreement to reflect such admission and, if required
by the Act, to cause to be filed an amendment to the Certificate.
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ARTICLE IX - REDEMPTION
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SECTION 9.1 RIGHT OF REDEMPTION.
(A) Subject to any restriction on the General Partner, which
restriction may arise as a result of the REIT Charter, the laws governing the
General Partner or otherwise (a "Redemption Restriction"), beginning on the
Redemption Effective Date, during each Redemption Period each Redeeming Party
shall have the right to require the Partnership to redeem all or a portion of
the Partnership Units held by such Redeeming Party by providing the General
Partner with a Redemption Notice. A Limited Partner may invoke its rights under
this Article IX with respect to 100 Partnership Units or an integral multiple
thereof or all of the Partnership Units held by such Limited Partner. Upon the
General Partner's receipt of a Redemption Notice from a Redeeming Party, the
Partnership shall be obligated (subject to the existence of any Redemption
Restriction) to redeem the Partnership Units from such Redeeming Party (the
"Redemption Obligation").
(B) Upon receipt of a Redemption Notice from a Redeeming
Party, the General Partner shall either (i) cause the Partnership to redeem the
Partnership Units tendered in the Redemption Notice, (ii) assume the Redemption
Obligation, as set forth in Section 9.4, or (iii) provide written Notice to the
Redeeming Party of each applicable Redemption Restriction.
(C) On and after May 14, 2002 at any time or from time to
time, the Partnership may redeem all or such other number of Class B Units (any
such redemption, a "Class B Redemption") at a cash redemption price per Class B
Unit equal to that portion of the Capital Contribution of the Class B Limited
Partner allocable to each such unit, plus all accumulated and unpaid Priority
Return Amounts to the date of Class B Redemption (such price, the "Class B
Redemption Price"). Upon any Class B Redemption, an amount equal to the product
of the Class B Redemption Price and the number of Class B Units redeemed by the
Partnership shall be distributed by the Partnership to the Class B Limited
Partner.
(D) On and after June 6, 2007 at any time or from time to
time, the Partnership may redeem all or such other number of Class C Units (any
such redemption, a "Class C Redemption") at a cash redemption price per Class C
Unit equal to that portion of the Capital Contribution of the Class C Limited
Partner allocable to each such unit, plus all accumulated and unpaid Class C
Priority Return Amounts to the date of Class C Redemption (such price, the
"Class C Redemption Price"). Upon any Class C Redemption, an amount equal to the
product of the Class C Redemption Price and the number of Class C Units redeemed
by the Partnership shall be distributed by the Partnership to the Class C
Limited Partner.
(E) On and after February 4, 2003 at any time or from time to
time, the Partnership may redeem all or such other number of Class D Units (any
such redemption, a "Class D Redemption") at a cash redemption price per Class D
Unit equal to that portion of the Capital Contribution of the Class D Limited
Partner allocable to each such unit, plus all accumulated and unpaid Class D
Priority Return Amounts to the date of Class D Redemption (such price, the
"Class D Redemption Price"). Upon any Class D Redemption, an amount equal to the
product of the Class D Redemption Price and the number of Class D Units redeemed
by the Partnership shall be distributed by the Partnership to the Class D
Limited Partner. The Class D Redemption Price (other than the portion thereof
consisting of accumulated and unpaid Class D Priority Return Amounts) is payable
solely out of the sale proceeds of an issuance of capital stock of the General
Partner. For purposes of the immediately preceding sentence "capital stock"
means any common stock, preferred stock, depositary shares, interests,
participations or
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other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable for equity interests or options to
purchase any of the foregoing).
(F) On and after March 18, 2003 at any time or from time to
time, the Partnership may redeem all or such other number of Class E Units (any
such redemption, a "Class E Redemption") at a cash redemption price per Class E
Unit equal to that portion of the Capital Contribution of the Class E Limited
Partner allocable to each such unit, plus all accumulated and unpaid Class E
Priority Return Amounts to the date of Class E Redemption (such price, the
"Class E Redemption Price"). Upon any Class E Redemption, an amount equal to the
product of the Class E Redemption Price and the number of Class E Units redeemed
by the Partnership shall be distributed by the Partnership to the Class E
Limited Partner. The Class E Redemption Price (other than the portion thereof
consisting of accumulated and unpaid Class E Priority Return Amounts) is payable
solely out of the sale proceeds of an issuance of capital stock of the General
Partner. For purposes of the immediately preceding sentence "capital stock"
means any common stock, preferred stock, depositary shares, interests,
participations or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
interests or options to purchase any of the foregoing).
SECTION 9.2 TIMING OF REDEMPTION. The Redemption Obligation (or the
obligation to provide Notice of an applicable Redemption Restriction, if one
exists) shall mature on the date which is seven (7) business days after the
receipt by the General Partner of a Redemption Notice from the Redeeming Party
(the "Redemption Date").
SECTION 9.3 REDEMPTION PRICE. On or before the Redemption Date, the
Partnership (or the General Partner if it elects pursuant to Section 9.4) shall
deliver to the Redeeming Party, in the sole and absolute discretion of the
General Partner either (i) a Share Payment or (ii) a Cash Payment. In order to
enable the Partnership to effect a redemption by making a Share Payment pursuant
to this Section 9.3, the General Partner in its sole and absolute discretion may
issue to the Partnership the number of REIT Shares required to make such Share
Payment in exchange for the issuance to the General Partner of Partnership Units
equal in number to the quotient of the number of REIT Shares issued and
Conversion Factor.
SECTION 9.4 ASSUMPTION OF REDEMPTION OBLIGATION. Upon receipt of a
Redemption Notice, the General Partner, in its sole and absolute discretion,
shall have the right to assume the Redemption Obligation of the Partnership. In
such case, the General Partner shall be substituted for the Partnership for all
purposes of this Article IX and, upon acquisition of the Partnership Units
tendered by the Redeeming Party pursuant to the Redemption Notice shall be
treated for all purposes of this Agreement as the owner of such Partnership
Units. Such exchange transaction shall be treated for federal income tax
purposes by the Partnership, the General Partner and the Redeeming Party as a
sale by the Redeeming Party as seller to the General Partner as purchaser.
SECTION 9.5 FURTHER ASSURANCES; CERTAIN REPRESENTATIONS. Each party to
this Agreement agrees to execute any documents deemed reasonably necessary by
the General Partner to evidence the issuance of any Share Payment to a Redeeming
Party. Notwithstanding anything herein to the contrary, each holder of First
Highland Units agrees that, if the General Partner shall elect to satisfy a
Redemption Obligation with respect to First Highland Units by making a Share
Payment, such Redemption Obligation shall mature on the date which is seven (7)
business days after receipt by the Partnership and the General Partner of
documents similar to the "Investor Materials" submitted in connection with the
sale of the First Highland Properties to the Partnership and any other similar
documents reasonably required by, and in form reasonably satisfactory to, the
Partnership. Each Limited Partner, by executing this Agreement, shall be deemed
to have represented to the General Partner and the Partnership that (i) its
acquisition of its Partnership Interest on the date hereof is made as a
principal for its own account, for investment purposes only and not with a view
to the resale or distribution of such Partnership Interest and (ii) if
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it shall receive REIT Shares pursuant to this Article IX other than pursuant to
an effective registration statement under the Securities Act of 1933, as
amended, that its acquisition of such REIT Shares is made as a principal for its
own account, for investment purposes only and not with a view to the resale or
distribution of such REIT Shares and agrees that such REIT Shares may bear a
legend to the effect that such REIT Shares have not been so registered and may
not be sold other than pursuant to such a registration statement or an exemption
from the registration requirements of such Act.
SECTION 9.6 EFFECT OF REDEMPTION. Upon the satisfaction of the
Redemption Obligation by the Partnership or the General Partner, as the case may
be, the Redeeming Party shall have no further right to receive any Partnership
distributions in respect of the Partnership Units so redeemed and shall be
deemed to have represented to the Partnership and the General Partner that the
Partnership Units tendered for redemption are not subject to any liens, claims
or encumbrances. Upon a Class B Redemption by the Partnership, the Class B
Limited Partner shall have no further right to receive any Partnership
distributions or allocations in respect of the Class B Units so redeemed. Upon a
Class C Redemption by the Partnership, the Class C Limited Partner shall have no
further right to receive any Partnership distributions or allocations in respect
of the Class C Units so redeemed. Upon a Class D Redemption by the Partnership,
the Class D Limited Partner shall have no further right to receive any
Partnership distributions in respect of the Class D Units so redeemed. Upon a
Class E Redemption by the Partnership, the Class E Limited Partner shall have no
further right to receive any Partnership distributions in respect of the Class E
Units so redeemed.
SECTION 9.7 REGISTRATION RIGHTS. In the event a Limited Partner
receives REIT Shares in connection with a redemption of Partnership Units
originally issued to Initial Limited Partners on June 30, 1994 pursuant to this
Article IX, such Limited Partner shall be entitled to have such REIT Shares
registered under the Securities Act of 1933, as amended, as provided in the
Registration Rights Agreement.
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ARTICLE X - DISSOLUTION AND LIQUIDATION
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SECTION 10.1 TERM AND DISSOLUTION. The Partnership commenced as of
November 23, 1993, and shall continue until December 31, 2092, at which time the
Partnership shall dissolve or until dissolution occurs prior to that date for
any one of the following reasons:
(A) An Involuntary Withdrawal or a voluntary withdrawal, even
though in violation of this Agreement, of the General Partner unless, within
ninety (90) days after such event of withdrawal all the remaining Partners agree
in writing to the continuation of the Partnership and to the appointment of a
Successor General Partner;
(B) Entry of a decree of judicial dissolution of the Partnership
under the Act; or
(C) The sale, exchange or other disposition of all or
substantially all of the Partnership Assets.
SECTION 10.2 LIQUIDATION OF PARTNERSHIP ASSETS.
(A) Subject to Section 10.2(E), in the event of dissolution
pursuant to Section 10.1, the Partnership shall continue solely for purposes of
winding up the affairs of, achieving a final termination of, and satisfaction of
the creditors of, the Partnership. The General Partner (or, if there is no
General Partner remaining, any Person elected by a majority in interest of the
Limited Partners (the "Liquidator")) shall be responsible for oversight of the
winding up and dissolution of the Partnership. The Liquidator shall obtain a
full accounting of the assets and
<PAGE> 41
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liabilities of the Partnership and such Partnership Assets shall be liquidated
(including, at the discretion of the Liquidator, in exchange, in whole or in
part, for REIT Shares) as promptly as the Liquidator is able to do so without
any undue loss in value, with the proceeds therefrom applied and distributed in
the following order:
(1) First, to the discharge of Partnership debts and
liabilities to creditors other than Partners;
(2) Second, to the discharge of Partnership debts and
liabilities to the Partners;
(3) Third, after giving effect to all contributions,
distributions, and allocations for all periods, to (i) the Class B Limited
Partner in an amount equal to any unpaid Class B Priority Return Amounts, (ii)
the Class C Limited Partner in an amount equal to any unpaid Class C Priority
Return Amounts, (iii) the Class D Limited Partner in an amount equal to any
unpaid Class D Priority Return Amounts, and (iv) the Class E Limited Partner in
an amount equal to any unpaid Class E Priority Return Amounts, provided, that if
the proceeds are inadequate to pay all of the unpaid Class B Priority Return
Amounts, the unpaid Class C Priority Return Amounts, the unpaid Class D Priority
Return Amounts, and the unpaid Class E Priority Return Amounts, such proceeds
shall be distributed to the Class B Limited Partner, the Class C Limited
Partner, the Class D Limited Partner and the Class E Limited Partner pro rata
based on the unpaid Class B Priority Return Amounts, the unpaid Class C Priority
Return Amounts, the unpaid Class D Priority Return Amounts, and the unpaid Class
E Priority Return Amounts;
(4) The balance, if any, to the Partners in accordance with
their positive Capital Accounts after giving effect to all contributions,
distributions and allocations for all periods.
(B) In accordance with Section 10.2(A), the Liquidator shall
proceed without any unnecessary delay to sell and otherwise liquidate the
Partnership Assets; provided, however, that if the Liquidator shall determine
that an immediate sale of part or all of the Partnership Assets would cause
undue loss to the Partners, the Liquidator may defer the liquidation except (i)
to the extent provided by the Act or (ii) as may be necessary to satisfy the
debts and liabilities of the Partnership to Persons other than the Partners.
(C) If, in the sole and absolute discretion of the Liquidator,
there are Partnership Assets that the Liquidator will not be able to liquidate,
or if the liquidation of such assets would result in undue loss to the Partners,
the Liquidator may distribute such Partnership Assets to the Partners in-kind,
in lieu of cash, as tenants-in-common in accordance with the provisions of
Section 10.2(A). The foregoing notwithstanding, such in-kind distributions shall
only be made if in the Liquidator's good faith judgment that is in the best
interest of the Partners.
(D) Upon the complete liquidation and distribution of the
Partnership Assets, the Partners shall cease to be Partners of the Partnership,
and the Liquidator shall execute, acknowledge and cause to be filed all
certificates and notices required by law to terminate the Partnership. Upon the
dissolution of the Partnership pursuant to Section 10.1, the Liquidator shall
cause to be prepared, and shall furnish to each Partner, a statement setting
forth the assets and liabilities of the Partnership. Promptly following the
complete liquidation and distribution of the Partnership Assets, the Liquidator
shall furnish to each Partner a statement showing the manner in which the
Partnership Assets were liquidated and distributed.
(E) Notwithstanding the foregoing provisions of this Section 10.2,
in the event that the Partnership shall dissolve as a result of the expiration
of the term provided for herein or as a result of the occurrence of an event of
the type described in Section 10.1(B) or (C), then each Limited Partner shall be
deemed to have delivered a Redemption Notice on the date of such dissolution. In
connection with each such Redemption Notice, the General Partner shall have the
option of either (i) complying with the redemption procedures contained in
Article IX or (ii) at the request of any Limited Partner, delivering to such
Limited Partner, Partnership property approximately equal
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in value to the value of such Limited Partner's Partnership Units upon the
assumption by such Limited Partner of such Limited Partner's proportionate share
of the Partnership's liabilities and payment by such Limited Partner (or the
Partnership) of any excess (or deficiency) of the value of the property so
delivered over the value of such Limited Partner's Partnership Units. In lieu of
requiring such Limited Partner to assume its proportionate share of Partnership
liabilities, the General Partner may deliver to such Limited Partner
unencumbered Partnership property approximately equal in value to the net value
of such Limited Partner's Partnership Units.
SECTION 10.3 EFFECT OF TREASURY REGULATIONS.
(A) In the event the Partnership is "liquidated" within the
meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), distributions made
to Partners pursuant to Section 10.2 shall be made within the time period
provided in Treasury Regulations Section 1.704-1(b)(2)(ii)(b)(2). If any
Contributor Partner has a deficit balance in its Capital Account (after giving
effect to all contributions (without regard to this Section 10.3(A)),
distributions and allocations), each such Contributor Partner shall contribute
to the capital of the Partnership an amount equal to its respective deficit
balance, such obligation to be satisfied within ninety (90) days following the
liquidation and dissolution of the Partnership in accordance with the provisions
of this Article X hereof. Conversely, if any Partner other than a Contributor
Partner has a deficit balance in its Capital Account (after giving effect to all
contributions (without regard to this Section 10.3(A)), distributions and
allocations), such Partner shall have no obligation to make any contribution to
the capital of the Partnership. Any deficit restoration obligation pursuant to
the provisions hereof shall be for the benefit of creditors of the Partnership
or any other Person to whom any debts, liabilities, or obligations are owed by
(or who otherwise has any claim against) the Partnership or the general partner,
in its capacity as General Partner of the Partnership. For purposes of computing
each Contributor Partner's deficit balance in its Capital Account and its
corresponding obligations to contribute additional capital to the Partnership,
only items of income, gain and loss actually recognized shall be reflected.
(B) In the event the Partnership is "liquidated" within the
meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g) but there has been
no dissolution of the Partnership under Section 10.1 hereof, then the
Partnership Assets shall not be liquidated, the Partnership's liabilities shall
not be paid or discharged and the Partnership's affairs shall not be wound up.
In the event of such a liquidation there shall be deemed to have been a
distribution of Partnership Assets in kind to the Partners in accordance with
Section 10.2 followed by a recontribution of such Partnership Assets by the
Partners in the same proportions.
SECTION 10.4 TIME FOR WINDING-UP. Anything in this Article X
notwithstanding, a reasonable time shall be allowed for the orderly winding-up
of the business and affairs of the Partnership and the liquidation of the
Partnership Assets in order to minimize any potential for losses as a result of
such process. During the period of winding-up, this Agreement shall remain in
full force and effect and shall govern the rights and relationships of the
Partners inter se.
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ARTICLE XI - AMENDMENTS AND MEETINGS
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SECTION 11.1 AMENDMENT PROCEDURE.
(A) Amendments to this Agreement may be proposed by the General
Partner. An amendment proposed at any time when the General Partner holds less
than 90% of all Partnership Units will be adopted and effective only if it
receives the Consent of the holders of a majority of the Partnership Units not
then held by the General Partner and an amendment proposed at any time when the
General Partner holds 90% or more of all
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Partnership Units may be made by the General Partner without the Consent of any
Limited Partner; provided, however, no amendment shall be adopted if it would
(i) convert a Limited Partner's Interest in the Partnership into a general
partner interest, (ii) increase the liability of a Limited Partner under this
Agreement, (iii) except as otherwise permitted in this Agreement, alter the
Partner's rights to distributions set forth in Article V, or the allocations set
forth in Article V, (iv) alter or modify any aspect of the Partners' rights with
respect to redemption of Partnership Units, (v) cause the early termination of
the Partnership (other than pursuant to the terms hereof) or (vi) amend this
Section 11.1(A), in each case without the Consent of each Partner adversely
affected thereby. In connection with any proposed amendment of this Agreement
requiring Consent, the General Partner shall either call a meeting to solicit
the vote of the Partners or seek the written vote of the Partners to such
amendment. In the case of a request for a written vote, the General Partner
shall be authorized to impose such reasonable time limitations for response, but
in no event less than ten (10) days, with the failure to respond being deemed a
vote consistent with the vote of the General Partner.
(B) Notwithstanding the foregoing, amendments may be made to this
Agreement by the General Partner, without the Consent of any Limited Partner, to
(i) add to the representations, duties or obligations of the General Partner or
surrender any right or power granted to the General Partner herein; (ii) cure
any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein or make any other provisions with
respect to matters or questions arising hereunder which will not be inconsistent
with any other provision hereof; (iii) reflect the admission, substitution,
termination or withdrawal of Partners in accordance with this Agreement; or (iv)
satisfy any requirements, conditions or guidelines contained in any order,
directive, opinion, ruling or regulation of a federal or state agency or
contained in federal or state law. The General Partner shall reasonably promptly
notify the Limited Partners whenever it exercises its authority pursuant to this
Section 11.1(B).
(C) Within ten (10) days of the making of any proposal to amend
this Agreement, the General Partner shall give all Partners Notice of such
proposal (along with the text of the proposed amendment and a statement of its
purposes).
SECTION 11.2 MEETINGS AND VOTING.
(A) Meetings of Partners may be called by the General Partner. The
General Partner shall give all Partners Notice of the purpose of such proposed
meeting not less than seven (7) days nor more than thirty (30) days prior to the
date of the meeting. Meetings shall be held at a reasonable time and place
selected by the General Partner. Whenever the vote or Consent of Partners is
permitted or required hereunder, such vote or Consent shall be requested by the
General Partner and may be given by the Partners in the same manner as set forth
for a vote with respect to an amendment to this Agreement in Section 11.1(A).
(B) Any action required or permitted to be taken at a meeting of
the Partners may be taken without a meeting if a written consent setting forth
the action to be taken is signed by the Partners owning Percentage Interests
required to vote in favor of such action, which consent may be evidenced in one
or more instruments. Consents need not be solicited from any other Partner if
the written consent of a sufficient number of Partners has been obtained to take
the action for which such solicitation was required.
(C) Each Limited Partner may authorize any Person or Persons,
including without limitation the General Partner, to act for him by proxy on all
matters on which a Limited Partner may participate. Every proxy (i) must be
signed by the Limited Partner or his attorney-in-fact, (ii) shall expire eleven
(11) months from the date thereof unless the proxy provides otherwise and (iii)
shall be revocable at the discretion of the Limited Partner granting such proxy.
<PAGE> 44
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SECTION 11.3 VOTING OF LB UNITS.
On any matter on which the Limited Partners shall be entitled to
vote, consent or grant an approval or waiver, following the admissions of the LB
Partners to the Partnership as Additional Limited Partners and through the
Voting Termination Date, each holder of the LB Units shall be deemed (i) in
connection with any matter submitted to a vote, to have cast all votes
attributable to such holder's LB Units in the same manner as the votes
attributable to the Units held by the General Partner are cast on such matter,
and (ii) in connection with any consent, approval or waiver, to have taken the
same action as the General Partner shall have taken with respect to its Units in
connection therewith. If the General Partner shall not have the right to vote,
consent or grant an approval or waiver on a matter, each holder of LB Units
shall vote or act as directed by the General Partner.
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ARTICLE XII - MISCELLANEOUS PROVISIONS
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SECTION 12.1 TITLE TO PROPERTY. All property owned by the Partnership,
whether real or personal, tangible or intangible, shall be deemed to be owned by
the Partnership as an entity, and no Partner, individually, shall have any
ownership of such property. The Partnership may hold any of its assets in its
own name or, in the name of its nominee, which nominee may be one or more
individuals, corporations, partnerships, trusts or other entities.
SECTION 12.2 OTHER ACTIVITIES OF LIMITED PARTNERS. Except as expressly
provided otherwise in this Agreement or in any other agreement entered into by a
Limited Partner or any Affiliate of a Limited Partner and the Partnership, the
General Partner or any Subsidiary of the Partnership or the General Partner, any
Limited Partner or any Affiliate of any Limited Partner may engage in, or
possess an interest in, other business ventures of every nature and description,
independently or with others, including, without limitation, real estate
business ventures, whether or not such other enterprises shall be in competition
with any activities of the Partnership, the General Partner or any Subsidiary of
the Partnership or the General Partner; and neither the Partnership, the General
Partner, any such Subsidiary nor the other Partners shall have any right by
virtue of this Agreement in and to such independent ventures or to the income or
profits derived therefrom.
SECTION 12.3 POWER OF ATTORNEY.
(A) Each Partner hereby irrevocably appoints and empowers the
General Partner (which term shall include the Liquidator, in the event of a
liquidation, for purposes of this Section 12.3) and each of their authorized
officers and attorneys-in-fact with full power of substitution as his true and
lawful agent and attorney-in-fact, with full power and authority in his name,
place and stead to:
(1) make, execute, acknowledge, publish and file in the
appropriate public offices (a) any duly approved amendments to the Certificate
pursuant to the Act and to the laws of any state in which such documents are
required to be filed; (b) any certificates, instruments or documents as may be
required by, or may be appropriate under, the laws of any state or other
jurisdiction in which the Partnership is doing or intends to do business; (c)
any other instrument which may be required to be filed by the Partnership under
the laws of any state or by any governmental agency, or which the General
Partner deems advisable to file; (d) any documents which may be required to
effect the continuation of the Partnership, the admission, withdrawal or
substitution of any Partner pursuant to Article VIII, dissolution and
termination of the Partnership pursuant to Article X, or the surrender of any
rights or the assumption of any additional responsibilities by the General
Partner; (e) any document which may be required to effect an amendment to this
Agreement to correct any mistake, omission or inconsistency, or to cure
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any ambiguity herein, to the extent such amendment is permitted by Section
11.1(B); and (f) all instruments (including this Agreement and amendments and
restatements hereof) relating to the determination of the rights, preferences
and privileges of any class or series of Partnership Units issued pursuant to
Section 4.2(B) of this Agreement; and
(2) sign, execute, swear to and acknowledge all voting
ballots, consents, approvals, waivers, certificates and other instruments
appropriate or necessary, in the sole discretion of the General Partner, to
make, evidence, give, confirm or ratify any vote, consent, approval, agreement
or other action which is made or given by the Partners hereunder or is
consistent with the terms of this Agreement and appropriate or necessary, in the
sole discretion of the General Partner, to effectuate the terms or intent of
this Agreement.
(B) Nothing herein contained shall be construed as authorizing the
General Partner to amend this Agreement except in accordance with Article XI or
as may be otherwise expressly provided for in this Agreement.
(C) The foregoing grant of authority (i) is a special power of
attorney, coupled with an interest, and it shall survive the Involuntary
Withdrawal of any Partner and shall extend to such Partner's heirs, successors,
assigns and personal representatives; (ii) may be exercised by the General
Partner for each and every Partner acting as attorney-in-fact for each and every
Partner; and (iii) shall survive the Transfer by a Limited Partner of all or any
portion of its Interest and shall be fully binding upon such transferee; except
that the power of attorney shall survive such assignment with respect to the
assignor Limited Partner for the sole purpose of enabling the General Partner to
execute, acknowledge and file any instrument necessary to effect the admission
of the transferee as a Substitute Limited Partner. Each Partner hereby agrees to
be bound by any representations made by the General Partner, acting in good
faith pursuant to such power of attorney. Each Partner shall execute and deliver
to the General Partner, within fifteen (15) days after receipt of the General
Partner's request therefor, such further designations, powers of attorney and
other instruments as the General Partner deems necessary to effectuate this
Agreement and the purposes of the Partnership.
(D) Each LB Partner hereby irrevocably appoints and empowers the
General Partner and the Liquidator, in the event of a liquidation, and each of
their authorized officers and attorneys-in-fact with full power of substitution,
as the true and lawful agent and attorney-in-fact of such LB Partner with full
power and authority in the name, place and stead of such LB Partner to take such
actions (including waivers under the Partnership Agreement) or refrain from
taking such action as the General Partner reasonably believes are necessary or
desirable to achieve the purposes of Section 11.3 of the Partnership Agreement.
SECTION 12.4 NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery, (i) if to a Limited Partner, at the most current address given by such
Limited Partner to the General Partner by means of a notice given in accordance
with the provisions of this Section 12.4, which address initially is the address
contained in the records of the General Partner, or (ii) if to the General
Partner, 311 S. Wacker Drive, Suite 4000, Chicago, Illinois 60606, Attn:
President.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if hand delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; or when receipt is acknowledged, if telecopied.
SECTION 12.5 FURTHER ASSURANCES. The parties agree to execute and
deliver all such documents, provide all such information and take or refrain
from taking any action as may be necessary or desirable to achieve the purposes
of this Agreement and the Partnership.
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SECTION 12.6 TITLES AND CAPTIONS. All article or section titles or
captions in this Agreement are solely for convenience and shall not be deemed to
be part of this Agreement or otherwise define, limit or extend the scope or
intent of any provision hereof.
SECTION 12.7 APPLICABLE LAW. This Agreement, and the application or
interpretation thereof, shall be governed exclusively by its terms and by the
law of the State of Delaware, without regard to its principles of conflicts of
laws.
SECTION 12.8 BINDING AGREEMENT. This Agreement shall be binding upon
the parties hereto, their heirs, executors, personal representatives, successors
and assigns.
SECTION 12.9 WAIVER OF PARTITION. Each of the parties hereto
irrevocably waives during the term of the Partnership any right that it may have
to maintain any action for partition with respect to any property of the
Partnership.
SECTION 12.10 COUNTERPARTS AND EFFECTIVENESS. This Agreement may be
executed in several counterparts, which shall be treated as originals for all
purposes, and all so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all the parties are not signatory to
the original or the same counterpart. Any such counterpart shall be admissible
into evidence as an original hereof against each Person who executed it. The
execution of this Agreement and delivery thereof by facsimile shall be
sufficient for all purposes, and shall be binding upon any party who so
executes.
SECTION 12.11 SURVIVAL OF REPRESENTATIONS. All representations and
warranties herein shall survive the dissolution and final liquidation of the
Partnership.
SECTION 12.12 ENTIRE AGREEMENT. This Agreement (and all Exhibits
hereto) contains the entire understanding among the parties hereto and
supersedes all prior written or oral agreements among them respecting the within
subject matter, unless otherwise provided herein. There are no representations,
agreements, arrangements or understandings, oral or written, among the Partners
hereto relating to the subject matter of this Agreement which are not fully
expressed herein and in said Exhibits.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto as of the day and year first above written.
General Partner: FIRST INDUSTRIAL REALTY TRUST INC.,
as sole General Partner of the Partnership
By: /s/ Michael J. Havala
-----------------------------------------
Class E Limited Partner FIRST INDUSTRIAL REALTY TRUST, INC.,
as Class E Limited Partner
By: /s/ Michael J. Havala
-----------------------------------------
<PAGE> 1
EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made as of this 9th day of December,
1997 by and between SCOTT SEALY (hereinafter "Sealy") and FIRST INDUSTRIAL
REALTY TRUST, INC., a Maryland corporation (hereinafter "Employer"). Capitalized
terms contained herein and otherwise undefined shall have the respective
meanings given to each of them in that certain Contribution Agreement, dated as
of December 9, 1997, by and among FR Acquisitions, Inc. and the other parties
thereto (the "Contribution Agreement").
The parties hereto agree as follows:
ARTICLE I - TERM OF EMPLOYMENT
1.01 Employer hereby employs Sealy and Sealy hereby accepts employment
by Employer commencing on the date hereof and pursuant to the terms hereof.
1.02 The term of this Agreement (the "Term") shall end at 12:01 a.m.,
Chicago time, on the third anniversary of the date hereof (the "Expiration
Date"), except as otherwise provided herein.
ARTICLE II - DUTIES AND POWERS OF SEALY
2.01 Except as may be otherwise approved by the Board of Directors of
Employer (the "Board") or as otherwise expressly provided herein, during the
Term, Sealy shall devote his diligent and good faith efforts to carry out his
duties with respect to the operation of the business of Employer, as more fully
detailed below, at all times in accordance with any and all written rules and
policies of Employer. Additionally during the Term, except as may otherwise be
permitted by this Agreement or the Contribution Agreement, Employer shall be
entitled to the exclusive benefits of Sealy's knowledge, experience, business
contacts and opportunities relating to the "Business of Employer". The "Business
of Employer" shall consist of the acquisition, development, ownership,
management, leasing and sale of warehouse, distribution and other industrial
real estate property. Notwithstanding any provision herein to the contrary, so
long as Sealy performs his duties to Employer as provided in this Agreement in a
manner reasonably acceptable to Employer, it shall not be a breach of this
Agreement if Sealy participates in (and Employer acknowledges that Sealy shall
participate in) the following activities and businesses (collectively referred
to herein as "Permitted Activities and Businesses"):
(a) Sealy may engage in activities and businesses unrelated to
the real estate business;
(b) Sealy may engage in activities and businesses in the real
estate business that are unrelated to the "Business of
Employer" (i.e., Sealy may engage in the acquisition,
development, management, leasing, sale, syndication of any
type of real estate exclusive of warehouse, distribution and
other industrial property);
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(c) Except as provided in clause (f) below, Sealy may engage in the
direct and indirect ownership of entities, whether existing as
of the date hereof or hereafter created (including the right to
make future investments in and the right to provide credit for
and/or guaranties for financing and development on behalf of
such entities) that engage in the acquisition, management,
leasing, development and/or financing of real estate properties
(including but not limited to industrial/distribution/warehouse
properties subject to the restriction hereinafter set forth);
provided, however, in respect to
industrial/distribution/warehouse properties Sealy, acting in
his individual capacity, shall only have the right to
participate in (1) the significant, non-routine and strategic
business decisions (e.g., sale and refinance) but not the
day-to-day decision making of such entities and (2) such other
decisions and activities for such entities and/or in his
individual capacity as is reasonable and necessary to protect
Sealy from a substantial loss of his investment and/or any
personal liability associated with such entities.
Notwithstanding anything to the contrary in this clause (c),
Sealy shall not initiate any action to acquire any
industrial/distribution/warehouse properties, although Sealy may
retain his interest in the Retained Properties (hereinafter
defined); provided, however, if Sealy is first contacted by any
third party affiliated with Mark Sealy or any of Sealy's
existing partners in respect of any property located in the
Territory (hereinafter defined), or other third party in respect
of a property outside the Territory, then Sealy may participate
in a direct or indirect investment in such property, but only on
the basis provided above in this clause (c);
(d) Sealy may engage in, except as provided in clauses (e) and (f)
below, the strategic and significant business decisions (e.g.,
sale and refinance), but not day-to-day decision making,
concerning those industrial/distribution/warehouse properties
located in the Territory and identified in Exhibit "A" (the
"Retained Properties"). In addition, Sealy shall have the right
to participate in such other decisions and activities
for the owners of the Retained Properties and/or in his
individual capacity as is reasonable and necessary to protect
Sealy from a substantial loss of his investment and/or any
personal liability associated with the Retained Properties,
(including the Transition Properties as defined below).
(e) Notwithstanding clause (d) above, certain of the Retained
Properties identified on Exhibit "A" as "Transition Properties"
(e.g., properties in a stage of planning and development that are
not yet fully completed, leased and financed) are in transition
and shall require Sealy to engage in day-to-day involvement in
order to complete as necessary the construction, leasing and
financing of the Transition Properties to stabilization. Employer
agrees that, so long as Sealy continues to perform his duties
hereunder and for no more than 18 months from the date hereof,
Sealy may participate in such day-to-day activities in connection
with development, construction, leasing and financing of the
Transition Properties, but only as necessary for each of such
properties to attain, and only until each of such properties
attains, commercially reasonable "stabilization" (i.e., complete
the construction, significant leasing and permanent financing)
and as necessary to
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discharge Sealy's obligations as a general partner and/or
manager of entities that own such Transition Properties;
provided, however, that Employer shall be reimbursed for the
time and expense of Sealy to the extent of his activity relating
to the Transition Properties in accordance with the term set
forth on Exhibit "B" attached hereto. Regardless of the
"stabilization" of any and all of the Transition Properties at
such time, from and after the 18-month anniversary of this
Agreement, Sealy shall no longer perform any day-to-day
management activities in connection with the Transition
Properties, but Sealy may undertake strategic and significant
business decisions with respect to such properties for so long
as they remain Retained Properties and may exercise his rights
as provided in the last sentence of clause (d) above.
(f) Notwithstanding anything to the contrary contained herein, Sealy
agrees that it may not and shall not engage in any decision
making, management, operational or other activity in connection
with (i) that certain real property located at 1103-1109 AFS
Airport Business Park, Euless, Texas, or (ii) the Excluded Parcel
(as defined in the Contribution Agreement). Sealy further agrees
that it shall not have a direct or indirect ownership interest in
either of such properties that either exceeds 49% or represents
the largest direct or indirect ownership interest among all
investors in such property.
Sealy shall be responsible to Employer to perform and/or oversee the following:
1. The day-to-day management and operation of real property
assets located in the States of Louisiana and Texas (collectively, the
"Territory") that are owned by Employer or by entities in which
Employer holds an ownership interest ("Property Management");
2. The marketing for lease or sale of real property assets
located in the Territory and owned or managed by Employer or entities
in which Employer holds an ownership interest (together with Employer,
the "Employer Entities") and the negotiation, documentation and
consummation of lease and sale transactions involving real property
assets located in the Territory and owned or managed by Employer
Entities (the "Real Property Assets") [collectively, "Marketing"]; and
3. The acquisition of Real Property Assets, if and to the
extent such acquisitions are approved by the Board (or the Board's
Investment Committee, as the case may be) or the appropriate partners,
officers or directors of any other applicable affiliate of Employer
("Acquisition").
2.02 Sealy will hold the title of Senior Regional Director ("SRD") of
the Territory, and shall have primary responsibility for the conducting of
Employer's business in the Territory.
2.03 If (a) a proposed Acquisition is presented to Employer by Sealy;
(b) Employer approves such Acquisition in accordance with its policies and
procedures then in effect; and (c) the
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property to be acquired (the "New Property") is located outside the
then-applicable geographic boundaries of the Territory, then, upon the closing
of such Acquisition, the Territory shall automatically be expanded to include
the city (or township, village or municipality, as the case may be) in which the
New Property is located unless (i) the New Property is located in the existing
territory of another SRD of Employer (it being understood and agreed that,
except as is otherwise expressly provided in this Section 2.03 with respect to
the Territory, the senior officers of Employer shall have the sole discretion to
establish the geographic boundaries of each SRD's respective territory); or (ii)
the Board (or the Investment Committee, as the case may be), in the process of
approving the acquisition of the New Property, specifically determines that the
Territory shall not so expand. In the event that either (i) or (ii) above is
applicable, then none of Sealy and the employees engaged by Employer in the
Territory shall be responsible for the day-to-day management and operation of
that particular New Property. Except as otherwise expressly provided above in
this Section 2.03, any other expansion or contraction of the Territory shall be
made by amendment to this Agreement.
2.04 Subject to: (a) with respect to those matters that may require
Board approval, the specific approval of the Board; (b) policies or guidelines
implemented by Employer out of its Chicago headquarters or by the Board; and (c)
any budget adopted by Employer, from time to time during the Term, with respect
to all or some portion of the Territory (a "Budget"), Sealy shall have the right
and obligation within the Territory to: (i) hire and fire employees (pursuant to
Employer's personnel policies, as such policies may be modified or amended from
time to time); (ii) establish, review, and revise the compensation of employees
engaged to perform services in the Territory (excepting only himself); (iii)
negotiate, document, and enter into contracts for Property Management and
Marketing; (iv) negotiate, document, and enter into contracts with such
suppliers of products and services as Sealy deems appropriate for the rendering
of Property Management and Marketing services to Employer; (v) purchase or lease
equipment for Employer for the performance and rendering of Property Management,
Marketing and Acquisition services, and tend to all matters relating thereto;
(vi) with the prior written approval of the Chief Operating Officer of Employer,
lease building space for occupancy by Employer for Employer's offices and for
such other reasonable functions as Sealy deems appropriate for the business of
Employer in the Territory; and (vii) negotiate, document, execute and perform
under leases on behalf of any Employer Entities, whether as landlord or
management/leasing agent, as the case may be ("Leases"). Notwithstanding
anything to the contrary contained in this Section 2.04, if any expenditure
proposed to be made by Sealy pursuant to his duties to Employer (1) is not
contemplated or provided for in the relevant Budget and (2) exceeds $25,000, per
item or occasion, except with respect to leasing commissions and tenant
improvements as provided in Section 2.06(iv), in which case Section 2.06 shall
govern, Sealy shall refrain from making such expenditure until Sealy receives
the approval for such expenditure from any Vice President or more senior officer
based in the Chicago headquarters of Employer.
2.05 Without the prior approval of the Board or the Investment
Committee, as the case may be (which, as in all cases requiring the approval or
consent of the Board or Investment Committee under this Agreement, may be given
or withheld in the Board's or the Investment Committee's sole discretion), Sealy
shall not do any or all of the following:
1. Increase his compensation or extend the Term;
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2. Purchase, or contract to purchase, any real property on
behalf of Employer or any Employer Entities; or
3. Sell or refinance, or contract to sell or refinance, any
Real Property Assets on behalf of Employer or any Employer Entities.
Sealy agrees that he shall promptly advise the Employer's Chief Investment
Officer of the pendency of any acquisition or disposition of any real property
on behalf of Employer or any Employer Entities, and shall follow the directions
of the Chief Investment Officer with respect to the further pursuit of any such
potential acquisition or disposition. If, at any time during the Term, however,
Sealy seeks approval or direction from the Chief Investment Officer with respect
to a particular acquisition or disposition, and the Chief Investment Officer is
not available, then Sealy may seek approval or direction from Employer's Chief
Operating Officer (the "COO"). If Sealy receives the approval of the Chief
Investment Officer or the COO, as applicable, to pursue an acquisition or
disposition, and Sealy desires that a formal purchase and sale contract be
executed in connection therewith, then any one of the President, Chief Operating
Officer, Chief Financial Officer or Chief Investment Officer of Employer shall
be the signatory to any such contract for an acquisition or disposition. Sealy
acknowledges that, as of the date of this Agreement, no acquisition or
disposition may be consummated on behalf of the Employer without the approval of
the Investment Committee or, in certain instances, the Board. As of the date of
this Agreement, acquisitions or dispositions of real property on behalf of
Employer require only the approval of the Investment Committee if the aggregate
consideration required to be paid for such acquisition or disposition does not
exceed $30,000,000. Currently, then, the Board must approve acquisitions or
dispositions involving consideration in excess of $30,000,000. Notwithstanding
anything to the contrary contained in this Section 2.05, if the Board modifies
its policies with respect to the matters provided in this Section 2.05, then
Sealy shall abide by such modified policies to the extent such policies differ
from what is provided above in this Section 2.05.
2.06 Notwithstanding anything to the contrary contained above, without
the prior approval of the COO, or such other officer designated by the COO for
such purpose, Sealy shall not enter into any Lease (i) with respect to premises
exceeding 100,000 rentable square feet, or (ii) with annual fixed net base rent
exceeding $500,000 for any year of the lease term, assuming the exercise of all
options in the Lease, or (iii) with an initial term exceeding five (5) years, or
with a full term, assuming the exercise of all options in the Lease, exceeding
ten (10) years, or (iv) that requires the expenditure of $100,000 or more, in
the aggregate, by Employer to both satisfy the obligations imposed on the
landlord under that Lease to perform tenant improvements and pay any leasing
commissions owed by Employer in connection with such Lease.
2.07 As an SRD, Sealy shall also have the authority to negotiate the
terms and provisions of, and enter into, any third-party management contracts
for the day-to-day leasing, operation and management of New Properties if and to
the extent that, in the process of approving an Acquisition, the Investment
Committee or the Board (if the Board's approval of the Acquisition is required)
approve the engagement of a third-party manager for the applicable New Property.
In such an event, Sealy must engage the third-party manager in accordance with
any additional terms, with respect to such third-party management arrangement,
required by the Investment Committee and the Board (if the Board's approval of
the Acquisition is required).
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ARTICLE III - COMPENSATION
3.01 Sealy shall receive an aggregate annual base salary ("Annual
Salary") at the rate of $150,000 per annum, beginning January 1, 1998 (and at
the rate of $130,000 per annum for 1997). The Annual Salary for calendar year
1997 shall be prorated, based on the period of time Sealy is employed during
1997. Following 1997, Sealy shall receive a guaranteed minimum annual salary,
based on the duration of his employment during any year, equal to no less than
the Annual Salary payable to all other SRDs engaged by Employer, from time to
time; and such Annual Salary shall be payable in twenty-four (24) equal
installments on the fifteenth day and last day of each month during the Term (a
"Payment Date"); provided, however, that the Annual Salary shall be no less than
$150,000 during 1998. If any Payment Date falls on other than a normal business
day, the salary payment due on such Payment Date shall instead be payable on the
last normal business day preceding such Payment Date.
3.02 In addition to the Annual Salary, Sealy shall also be entitled to
participate in all incentive, bonus and stock option programs offered by
Employer from time to time to the SRDs, as such may be approved or implemented
from time to time by the Compensation Committee of the Board. Sealy's right to
participate in, and to receive compensation under, such programs shall in no
event be on lesser terms or in lesser amounts than those offered to the SRDs;
provided, however, that incentive or bonus arrangements (a) for which Sealy and
the SRDs are eligible; (b) that are based upon the achievement or surpassing of
performance goals established by Employer, and (c) that are based upon specified
commercial criteria made known to Sealy and the SRDs in advance, may vary among
the different regions of Employer based upon relative regional performance.
3.03 Employer shall be entitled to withhold from those amounts payable
to Sealy from time to time under this Agreement any and all federal, state or
local withholding or other taxes or charges which Employer is, from time to
time, required (by applicable law, statute, ordinance or regulation) to
withhold. Employer shall be entitled to rely upon the opinion of its legal
counsel with regard to any question concerning the amount or requirement of any
such withholding.
ARTICLE IV - SEALY'S BENEFITS
4.01 Employer, at Employer's cost, will provide Sealy with
medical/hospitalization/ major medical insurance coverage, including dental
benefits, in the same amounts, pursuant to the same terms, and subject to the
same deductible, as is provided pursuant to the insurance coverage made
available, from time to time, to the SRDs.
4.02 Employer, at Employer's cost, will provide Sealy with, and keep in
effect during the Term, a term life insurance policy which Employer will
purchase from an insurer satisfactory to Sealy and providing coverage in an
amount equal to the amount of such term life insurance provided to the SRDs.
Sealy shall have the right to designate such individual or other entity as he
wishes as the owner of such life insurance policy, and shall have the power to
designate and change, from time-to-time, the beneficiary under such insurance
policy.
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4.03 Employer, at Employer's cost, will provide Sealy with a disability
income insurance policy that will (i) provide Sealy with income per year equal
to that amount of annual income provided to the SRDs under their respective
disability insurance policies, (ii) have a waiting period of not greater than
three (3) months from the date of sickness, injury or other disability prior to
any disability payment, (iii) provide for lifetime benefits, and (iv) contain a
waiver of premium clause. At Sealy's option, he may elect to pay the annual
premiums for such disability insurance himself, in which case his Annual Salary
will be increased by the amount equal to such annual premium. The foregoing
disability income insurance policy will define disability in terms of the
functions which Sealy is required to perform pursuant to this Agreement, and
should Sealy not be able to perform such functions, he shall be deemed disabled
under such policy.
4.04 Sealy shall be entitled to vacation leave of five (5) weeks during
each calendar year, beginning January 1, 1998, with full pay (determined on a
pro rata basis, based on the then-applicable Annual Salary). The time for
vacation shall be chosen by Sealy and must be taken within fifteen (15) months
after the start of the calendar year with respect to which such vacation leave
is made available. Sealy's right to be paid in lieu of any vacation leave not
timely taken shall be determined by the Compensation Committee of the Board and
shall be consistent with the policy established for the SRDs.
4.05 Sealy shall be entitled to the following paid holidays per year
(if falling on a day other than a Saturday or Sunday): New Year's Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
4.06 Sealy shall be entitled to an aggregate of ten (10) days per
calendar year, including 1997, as sick and/or personal leave days with full pay
(determined on a pro rata basis, based on the then-applicable Annual Salary).
Sick and/or personal leave days may be accumulated up to a total of twenty (20)
days.
4.07 If Sealy becomes disabled during the Term for any reason that
prevents him from fully performing his duties under this Agreement and, as a
result, he would be entitled, but for any waiting period, to disability payments
under the disability insurance policy described above, Employer agrees to
continue his salary (determined on a pro rata basis, based on the
then-applicable Annual Salary) during the period of his disability until such
time as benefits due under the disability income insurance policy (provided
pursuant to Section 4.03 above), begin to accrue, but in no event beyond the end
of the Term.
4.08 In addition to the foregoing, it is understood and agreed that, in
order to properly perform his duties, Sealy must have the use of a mobile
telephone. Employer agrees to pay directly, or to reimburse Sealy for, any and
all costs associated with the purchase, installation, activation, and business
use of such mobile telephone (in the ordinary course of Sealy's performance of
his duties under this Agreement).
4.09 Executive shall receive an automobile allowance determined in
accordance with an annual budget submitted to, and approved by, Employer from
time to time with respect to the operation of the Territory during the
applicable calendar year (the "Auto Allowance"), which Auto Allowance shall be
paid in accordance with Employer's policy for payment of comparable
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allowances. Employer shall have no obligation to make any payments of the Auto
Allowance from and after the date on which Executive's employment with Employer
is terminated in accordance with this Agreement.
ARTICLE V - REIMBURSEMENT OF SEALY'S EXPENSES
5.01 Sealy is authorized to incur reasonable business expenses for
promoting the business of Employer, including expenditures for entertainment,
gifts, and travel. Employer will reimburse Sealy in accordance with its normal
expense-reimbursement procedure for all business expenses reasonably incurred,
provided that Sealy presents to Employer both of the following:
(a) A monthly expense report in which Sealy records:
(i) the amount of each expenditure;
(ii) the date, place, and designation of the type of
entertainment, travel, or other expenses or the date
and description of any gift given by Sealy for a
business purpose;
(iii) the business purpose for each expenditure; and
(iv) the name, occupation, address, and other relevant
information of each person who is entertained or
given a gift sufficient to establish the business
relationship to Employer.
(b) Documentary evidence (such as receipts or paid bills) providing
sufficient information to establish the amount, date, place, and essential
character of each business expenditure of $75.00 or more.
ARTICLE VI - TERMINATION
6.01 Employer may terminate this Agreement for any reason whatsoever,
including, without limitation, under the following circumstances:
(a) The occurrence of a material breach of this Agreement by
Sealy that Sealy does not cure, whether or not such breach is capable
of being cured, within ten (10) days after Employer delivers to Sealy
written notice of the alleged breach ("Default Notice"). A termination
pursuant to this paragraph shall take effect upon the expiration of the
relevant cure period, if the subject breach has not been cured.
(b) For "cause," which, for purposes of this Agreement, shall
include, without limitation, (i) the fraudulent or criminal conduct of
Sealy adversely affecting Employer, (ii) alcoholism of, or illegal
substance abuse by, Sealy, (iii) any willful, reckless, or grossly
negligent act, or failure to act, of Sealy, or any breach of the
fiduciary duty owed by Sealy to Employer, or (iv) any dishonesty,
disclosure of Confidential Information (as hereinafter
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defined) or, except as provided above or in the Contribution
Agreement in respect of Permitted Activities and Businesses, aiding a
competitor of Employer. A termination "for cause" shall take effect
immediately upon written notice to Sealy from Employer;
(c) Sealy suffering a long-term disability. A long-term
disability shall be defined as Sealy's inability (based on the standard
for honoring a claim established under the disability insurance policy
procured for Sealy pursuant to this Agreement), due to illness or
injury (including alcoholism or illegal substance abuse), to perform
his duties as established in Article II above, for a period of three
(3) consecutive months. A termination pursuant to this paragraph shall
take effect immediately upon written notice to Sealy from Employer
after the expiration of such three-month period;
(d) Sealy's death, in which case the Agreement shall
terminate immediately; and
(e) The occurrence of a breach of this Agreement for which
written notice is sent to Sealy on three or more occasions during any
12-month period of the Term (regardless of whether or not such breaches
are cured in a timely fashion), in which case this Agreement shall
terminate immediately upon the third of such written notices to Sealy
from Employer, except as otherwise provided in such third written
notice.
In the event Employer exercises its right of termination for reasons other than
any of those specified for in paragraphs (a) through (e) above (such reasons
other than those specified by (a) through (e) being referred to as "Unstated
Reasons"), such termination shall be effective thirty (30) days after Employer's
delivery of its written notice of such termination; provided, however, from and
after the effective date of a termination for any Unstated Reason, and
continuing for a period of three (3) months, or through the Expiration Date,
whichever occurs first, Employer shall continue to pay to Sealy, the benefits to
which he would have been entitled (under the express terms of this Agreement, as
of the date of such termination), but for the accelerated termination hereof. In
addition, on the first day of each of the 12 calendar months immediately
following the effective date of a termination for any Unstated Reason (the
"Termination Date"), regardless of the Expiration Date, Employer shall pay to
Sealy, at the rate of one-twelfth of the following amounts on each of such 12
payment dates: (i) the Annual Salary being paid to Sealy as of the Termination
Date and (ii) the most recent annual bonus paid to Sealy or, if, as of the
Termination Date, Sealy will not have worked for Employer long enough to qualify
for an annual bonus, the average of the most recent annual bonuses paid to all
senior regional directors of Employer (the foregoing payments in the aggregate
shall be hereinafter referred to as the "Severance Payment").
6.02 Sealy shall have no right to terminate this Agreement, except (a)
as provided in Sections 6.06 and 6.07 below, and (b) in the event of the
occurrence of a breach of this Agreement by Employer, which Employer does not
cure within ten days after delivery of Sealy's written notice of such alleged
breach.
6.03 Termination of this Agreement by Employer or by Sealy pursuant to
any of the provisions of this Article VI shall not prejudice any other remedy to
which the terminating party may be entitled as a result of a breach of this
Agreement by the non-terminating party, whether at
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law, in equity, or under this Agreement; provided, however, and notwithstanding
any provision in this Agreement to the contrary or in any other agreement
related to the Contribution Agreement, that if Sealy is terminated due to a
breach of his obligations in Section 2.01(f), Employer's remedy hereunder shall
be limited to termination of this Agreement only (although Employer may seek to
enjoin such breach without terminating this Agreement).
6.04 In the event this Agreement is terminated for any reason, in
addition to such other payments required to be paid to Sealy as expressly
provided herein, Sealy shall be entitled to receive a prorated portion of his
Annual Salary through the effective date of such termination. In addition, in
the event this Agreement is terminated for any reason, Sealy shall be entitled
to reimbursement of all business expenses incurred by him (pursuant to Section
5.01) prior to the effective date of termination that would otherwise be
reimbursable hereunder. Further, Sealy shall also be entitled to the
remuneration provided in Sections 6.01, 6.06 and 6.07.
6.05 Upon the termination of this Agreement for any reason, Sealy shall
forthwith return and deliver to Employer, and shall not retain any originals or
copies of, any books, papers, price lists or customer contracts, written
proposals of Employer or prospective customers or tenants, customer/tenant
lists, rent rolls, leases, files, books of account, notebooks and other
documents and data relating to the performance of services rendered by Sealy
hereunder, except for those materials relating to the Retained Properties or in
Sealy's possession immediately prior to the commencement of the Term
(collectively, "Employer's Materials"), all of which Employer Materials are
hereby deemed to constitute the property of Employer.
6.06 Constructive Termination. If, at any time during the Term, except
in connection with a termination pursuant to Section 6.01(a), (b) or (e) above,
Sealy is Constructively Discharged (as hereinafter defined), then Sealy shall
have the right, by written notice to the Employer, given within one hundred and
twenty (120) days of the effective date of such Constructive Discharge, to
terminate his services hereunder (the "Termination Notice"), effective as of the
date that is thirty (30) days after the date on which such Termination Notice is
delivered, and Sealy shall have no further rights or obligations under this
Agreement other than as provided in this Section 6.06 and in Article VII. For
purposes of this Agreement, Sealy shall be deemed to have been "Constructively
Discharged" upon the occurrence of any of the following events:
(i) Sealy is not re-elected to, or is otherwise removed from,
his position as the SRD in the Territory with the Employer other than
as a result of (x) Sealy's election or appointment to positions of
equal or superior scope and responsibility (an "Alternative Position")
or (y) Sealy's breach of, or default under, the terms of this
Agreement; or
(ii) Employer fails to vest Sealy with the powers, authority
and support services normally attendant, from time to time, to the
other SRDs, or with those attendant to the Alternative Position that
may be applicable from time to time, as the case may be; or
(iii) The Employer notifies Sealy, in writing, that Sealy's
employment will be terminated (other than pursuant to Section 6.01(a),
(b) or (e) above) or materially and adversely modified in the future,
or that Sealy will be Constructively Discharged in the future.
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If Sealy is Constructively Discharged and timely delivers a Termination
Notice, then from and after the effective date of a termination
pursuant to a Termination Notice, Employer shall pay to Sealy an amount
equal to the Severance Payment, as though such termination was a
termination for Unstated Reasons.
6.07 Termination Upon Change of Control.
(a) In the event of a Change in Control (as defined below) of
the Employer and the termination of Sealy's employment by Sealy or by
the Employer under either (i) or (ii) below, Sealy shall be entitled to
receive, from and after the effective date of a termination pursuant to
a Change in Control, the Severance Payment, as though such termination
was a termination for Unstated Reasons. The Severance Payment shall not
be offset against or diminish any other compensation or benefits
accrued as of the effective date of termination. The following shall
constitute termination under this Section 6.07:
(i) Sealy terminates his employment under this Agreement
pursuant to a written notice to that effect delivered to the Board
within six (6) months after the occurrence of the Change in Control; or
(ii) Sealy's employment is terminated, including
Constructively Discharged, by the Employer or its successor either in
contemplation of or within two (2) years after the Change in Control,
other than pursuant to Section 6.01(a), (b) or (e) above.
(b) For purposes of this paragraph, the term "Change in Control" shall
mean the following:
(i) The consummation of the acquisition by any person [as such
term is defined in Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")] of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
forty percent (40%) or more of the combined voting power embodied in
the then-outstanding voting securities of the Employer; or
(ii) Approval by the stockholders of the Employer of: (1) a
merger or consolidation of the Employer, if the stockholders of the
Employer immediately before such merger or consolidation do not, as a
result of such merger or consolidation, own, directly or indirectly,
more than fifty percent (50%) of the combined voting power of the
then-outstanding voting securities of the entity resulting from such
merger or consolidation in substantially the same proportion as was
represented by their ownership of the combined voting power of the
voting securities of the Employer outstanding immediately before such
merger or consolidation; or (2) a complete or substantial liquidation
or dissolution, or an agreement for the sale or other disposition, of
all or substantially all of the assets of the Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because forty percent (40%) or more of the combined voting power
of the then-outstanding securities is acquired by: (x) a trustee or other
fiduciary holding securities under one or more
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employee benefit plans maintained for employees of the entity; or (y)
any corporation or other entity which, immediately prior to such acquisition,
is owned directly or indirectly by the stockholders of the Employer in the same
proportion as their ownership of stock in the Employer immediately prior to
such acquisition.
ARTICLE VII - NONCOMPETITION AND CONFIDENTIALITY
7.01 In consideration of (i) this Agreement; (ii) the payment of the
amounts described herein; (iii) the terms and provisions of the Contribution
Agreement; and (iv) the benefits afforded Sealy by virtue of Employer's national
support staff, brokerage relationships, databases and reputation; Sealy hereby
covenants and agrees that: (a) during the period of his employment with
Employer, except in respect of the Permitted Activities and Businesses, and then
only as provided in Section 2.01, he shall not, and he shall cause any entity in
which he has a direct or indirect, non-passive ownership interest (collectively,
the "Non-Compete Parties") to not, directly or indirectly, within those counties
in the State of Texas or those parishes in the State of Louisiana set forth on
Exhibit "C" attached hereto (collectively and subject to the penultimate
sentence of this Section 7.01, the "Non-Compete Area"), in any manner
whatsoever: (i) own, manage, control, participate in, consult with, render
services for, or otherwise deal with, in any manner (including, without
limitation, independently or as an employee), any entity involved in the
development, management, leasing or operation of other projects or properties
used, or contemplated to be used, for industrial/warehouse/distribution purposes
(any such entity, a "Competitor"), or (ii) solicit, initiate contact with,
negotiate with, hold discussions with or approach any customer or tenant, or any
potential customer or tenant, for the benefit of or on behalf of any Competitor;
and (b) subject to the last sentence of this Section 7.01, during the period of
Sealy's employment with Employer and until the second anniversary of his
termination of employment with Employer, Sealy shall not, and he shall cause
each Non-Compete Party to not, initiate contact with or solicit any of the
current tenants ("Tenants") or any future tenant at any of the Projects (as
defined in the Contribution Agreement) ["New Tenants"] with respect to
alternative locations or opportunities concerning
industrial/distribution/warehouse real property for such Tenants or New Tenants,
whether for purposes of leasing, selling or build-to-suit (an "Alternative
Site"). In the event, during the period of Sealy's employment with Employer, any
Non-Compete Party is contacted by any of the Tenants or New Tenants concerning
an Alternative Site without having solicited or initiated contact, Sealy shall,
and shall cause any other applicable Non-Compete Party to, immediately notify
Employer of such fact and shall refer such Tenant or New Tenant to Employer.
Sealy further agrees that, in the event of breach of any or all of the covenants
contained in this Section 7.1, Employer shall be entitled to all available
remedies against any or all of the Non-Compete Parties, at law or in equity,
including, without limitation, injunctive relief, all of which remedies shall be
cumulative and non-exclusive. Sealy hereby acknowledges that Employer performs
one or more of the following business activities (the "Business Activities")
within the parishes and counties set forth in Exhibit "C": (i) managing and
operating industrial/warehouse/distribution real property assets; (ii)
soliciting, meeting and negotiating with prospective tenants for occupancy in
industrial/warehouse/distribution real property assets of Employer; and (iii)
investigating potential acquisitions and developments of
industrial/warehouse/distribution real property assets. The parties agree that,
upon receipt of notice by Sealy from time to time from Employer indicating an
expansion of the Business Activities to additional parish(es) or county(ies), as
the case may be, the
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Non-Compete Area shall, upon receipt of such notice by Sealy, be expanded
to include such parish(es) and county(ies), as the case may be, reflected
in such notice, and Sealy shall thereupon treat such additional parish(es)
and county(ies) as part of the Non-Compete Area for purposes of this
Section 7.01. Notwithstanding anything herein to the contrary, if Sealy is no
longer employed by Employer and the Non-Compete Period has not otherwise
terminated pursuant to clause (2) of this Section 7.01, the Non-Compete Period
shall terminate on the day that is three years from the date hereof.
7.02 Employer acknowledges that heretofore or hereafter during the
course of Sealy's employment, Employer has produced, and Sealy may hereafter
produce or have access to, records, data, trade secrets and information not
generally available to the public, including, but not limited to, the Employer's
Materials ("Confidential Information"), regarding Employer, its subsidiaries and
affiliates, the business of Employer, and its real properties and tenants in the
Territory and elsewhere in the United States. Accordingly, during and subsequent
to the Term, Sealy shall hold in confidence and not directly or indirectly
disclose, copy or make lists of any or all of such Confidential Information,
except to the extent that (i) such information is or hereafter becomes lawfully
available from public sources; (ii) such disclosure is authorized in writing by
Employer; (iii) such disclosure is required by a law or any competent
administrative agency or judicial authority; or (iv) otherwise as is reasonably
necessary or appropriate in connection with the performance by Sealy of his
duties hereunder. All records, files, documents and other materials or copies
thereof relating to Employer's business that Sealy prepares, has access to, or
utilizes (including, but not limited to, the Employer Materials), shall be and
remain the sole property of Employer; and shall be promptly returned to Employer
upon termination of Sealy's employment hereunder. Subject to Section 7.01,
during the term of this Agreement, Sealy agrees to abide by Employer's
reasonable policies, as in effect from time to time and applicable to the SRDs,
respecting avoidance of interests conflicting with those of Employer.
ARTICLE VIII - GENERAL PROVISIONS
8.01 Any notices to be given under this Agreement by either party to
the other must be in writing and may be effected either by personal delivery or
by a reputable next-day overnight delivery service which obtains a signed
receipt for its deliveries. Notices delivered personally shall be deemed
communicated as of the actual receipt by the addressee. Notices sent by next-day
overnight delivery service shall be deemed communicated on the next business day
after being sent. Notices shall be addressed as follows:
If intended for Sealy:
Scott Sealy
333 Texas Street
Suite 1050
Shreveport, Louisiana 71101-5320
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with a copy to:
Frank B. Bazzel, Esq.
Morris, Manning & Martin, L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, Georgia 30326
If intended for Employer:
First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Attn: Michael Brennan,
Chief Operating Officer
with a copy to:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive, Suite 2700
Chicago, Illinois 60606
Attn: Suzanne Bessette-Smith, Esq.
8.02 This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Texas, except that the internal laws of
Louisiana shall govern with respect to any violations of Section 7.01 alleged to
have occurred within the State of Louisiana.
8.03 This Agreement is a contract for personal services of Sealy, and
as such, is not assignable by Sealy.
8.04 This Agreement shall not be assignable by Employer except with the
prior written approval of an assignment and of the proposed assignee by Sealy.
Notwithstanding the foregoing, Employer may assign its rights under this
Agreement to any entity which acquires title to all of Employer's Real Property
Assets in the Territory, without Sealy's prior approval, subject to the
following two (2) conditions:
1. Employer shall stand as surety for the performance of the
assignee under this Agreement; and
2. If, after being informed of the assignment and of the
identity of the assignee, Sealy is not willing to be employed by the assignee,
upon three (3) months' prior written notice to Employer and to the assignee,
Sealy may terminate this Agreement.
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8.05 In the event that any one or more provisions contained in this
Agreement shall, for any reason, be held invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound hereby, have caused this Employment Agreement to be duly signed
the day and year first above written.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ JOHANNSON L. YAP
-----------------------------------
Name: Johannson L. Yap
Title: Chief Investment Officer
/s/ SCOTT SEALY
---------------------------------------
Scott Sealy
S-1
<PAGE> 17
EXHIBIT A
RETAINED PROPERTIES
I. Transition Properties and Retained Properties
A. Currently Owned:
1. 6300 West by Northwest Boulevard, Houston, Texas
2. 5910 West by Northwest Boulevard, Houston, Texas
3. 11401 Industriplex Boulevard, Baton Rouge, Louisiana
B. To be Acquired:
1. 20 acres in Interstate Park Subdivision, Baton Rouge,
Louisiana
2. James Park Warehouse, St. Charles Parish, Louisiana
II. Retained Properties Only
1. Wheless Properties
i) 1745 Hayden Road, Dallas, Texas
ii) 1631-1673 Terre Colony, Dallas, Texas
iii) 2505 Willowbrook, Dallas, Texas
iv) 1255 Champion Circle, Carrolton, Texas
2.
i) 7202-7222 Clinton Drive, Houston, Texas
ii) Slack Industrial Park, Shreveport, Louisiana
3. Johnson Properties
i) 17060 Dallas Parkway, Dallas, Texas
ii) 5001 Northeast Parkway, Ft. Worth, Texas
A-1
<PAGE> 18
EXHIBIT B
REIMBURSEMENT AGREEMENT
B-1
<PAGE> 19
EXHIBIT C
NON-COMPETE AREA
LOUISIANA:
East Baton Rouge Parish
Jefferson Parish
St. Charles Parish
Caddo Parish
Orleans Parish
West Baton Rouge Parish
Bossier Parish
TEXAS:
Tarrant County
Harris County
Dallas County
Collin County
Denton County
El Paso County
C-1
<PAGE> 1
EXHIBIT 10.20
EMPLOYMENT AGREEMENT
This Agreement ("Agreement") is made as of this 10th day of December, 1997
by and between DONALD C. THOMPSON (hereinafter "Thompson") and FIRST INDUSTRIAL
REALTY TRUST, INC., a Maryland corporation (hereinafter "Employer").
Capitalized terms contained herein and otherwise undefined shall have the
respective meanings given to each of them in that certain Contribution
Agreement, dated as of December 9, 1997, by and among FR Acquisitions, Inc. and
the other parties thereto (the "Contribution Agreement").
The parties hereto agree as follows:
ARTICLE I - TERM OF EMPLOYMENT
1.01 Employer hereby employs Thompson and Thompson hereby accepts
employment by Employer commencing on the date hereof and pursuant to the terms
hereof.
1.02 The term of this Agreement (the "Term") shall end at 12:01 a.m.
Chicago time on the third anniversary of the date hereof (the "Expiration
Date"), except as otherwise provided herein.
ARTICLE II - DUTIES AND POWERS OF THOMPSON
2.01 Except as may be otherwise approved by the Board of Directors of
Employer (the "Board") or as otherwise expressly provided herein, Thompson
shall devote his full-time, diligent and good faith efforts to the operation of
the business of Employer, as more fully detailed below, at all times in
accordance with any and all written rules and policies of Employer.
Additionally during the Term, except as may otherwise be approved by the Board,
Employer shall be entitled to the exclusive benefits of Thompson's knowledge,
experience, business contacts and opportunities relating to the business of
Employer.
Thompson shall be responsible to Employer to perform and/or oversee the
following:
1. The day-to-day management and operation of real property assets
located in Tampa, Orlando and Southwest Florida (collectively, the
"Territory"), owned by Employer or by entities in which Employer holds an
ownership interest ("Property Management");
2. The marketing for lease or sale of real property assets located
in the Territory and owned or managed by Employer or entities in which
Employer holds an ownership interest (together with Employer, the "Employer
Entities") and the negotiation, documentation and consummation of lease and
sale transactions involving real property assets located in the Territory and
owned or managed by Employer Entities (the "Real Property Assets")
[collectively, "Marketing"]; and
3. The acquisition of Real Property Assets, if and to the extent such
acquisitions are approved by the Board (or the Board's Investment Committee, as
the case may be) or the appropriate partners, officers or directors of any
other applicable affiliate of Employer ("Acquisition").
<PAGE> 2
2.02 Thompson will hold the title of Senior Regional Director ("SRD") of
the Territory, and shall have primary responsibility for the conducting of
Employer's business in the Territory. The Territory's Regional Headquarters
will be located initially in Tampa, Florida.
2.03 If (a) a proposed Acquisition is presented to Employer by Thompson;
(b) Employer approves such Acquisition in accordance with its policies and
procedures then in effect; and (c) the property to be acquired (the "New
Property") is located outside the then-applicable geographic boundaries of the
Territory, then, upon the closing of such Acquisition, the Territory shall
automatically be expanded to include the city (or township, village or
municipality, as the case may be) in which the New Property is located unless
(i) the New Property is located in the existing territory of another SRD of
Employer (it being understood and agreed that, except as is otherwise expressly
provided in this Section 2.03 with respect to the Territory, the senior
officers of Employer shall have the sole discretion to establish the geographic
boundaries of each SRD's respective territory); or (ii) the Board (or the
Investment Committee, as the case may be), in the process of approving the
acquisition of the New Property, specifically determines that the Territory
shall not so expand. In the event that either (i) or (ii) above is applicable,
then none of Thompson and the employees engaged by Employer in the Territory
shall be responsible for the day-to-day management and operation of that
particular New Property. Except as otherwise expressly provided above in this
Section 2.03, any other expansion or contraction of the Territory shall be made
by amendment to this Agreement.
2.04 Subject to: (a) with respect to those matters that may require Board
approval, the specific approval of the Board; (b) policies or guidelines
implemented by Employer out of its Chicago headquarters or by the Board; and
(c) any budget adopted by Employer, from time to time during the Term, with
respect to all or some portion of the Territory (a "Budget"), Thompson shall
have the right and obligation within the Territory to: (i) hire and fire
employees (pursuant to Employer's personnel policies, as such policies may be
modified or amended from time to time); (ii) establish, review, and revise the
compensation of employees engaged to perform services in the Territory
(excepting only himself); (iii) negotiate, document, and enter into contracts
for Property Management and Marketing; (iv) negotiate, document, and enter into
contracts with such suppliers of products and services as Thompson deems
appropriate for the rendering of Property Management and Marketing services to
Employer; (v) purchase or lease equipment for Employer for the performance and
rendering of Property Management, Marketing and Acquisition services, and tend
to all matters relating thereto; (vi) with the prior written approval of the
Chief Operating Officer of Employer (the "COO;" provided, however, that the COO
may from time to time designate another officer of Employer for purposes of
providing approvals to Thompson and/or to whom Thompson shall be obligated to
report and any references to COO contained herein shall be deemed to include
any such officer from time to time designated by the COO), lease building space
for occupancy by Employer for Employer's offices and for such other reasonable
functions as Thompson deems appropriate for the business of Employer in the
Territory; and (vii) negotiate, document, execute and perform under leases on
behalf of any Employer Entities, whether as landlord or management/leasing
agent, as the case may be ("Leases"). Notwithstanding anything to the contrary
contained in this Section 2.04, if any expenditure proposed to be made by
Thompson pursuant to his duties to Employer (1) is not contemplated or provided
for in the relevant Budget and (2) exceeds $25,000, per item or occasion,
except with respect to leasing commissions and tenant improvements as provided
in Section 2.06(iv), in which case Section 2.06
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shall govern, Thompson shall refrain from making such expenditure until
Thompson receives the approval for such expenditure from any Vice President or
more senior officer based in the Chicago headquarters of Employer.
2.05 Without the prior approval of the Board or the Investment Committee,
as the case may be (which, as in all cases requiring the approval or consent of
the Board or Investment Committee under this Agreement, may be given or
withheld in the Board's or the Investment Committee's sole discretion),
Thompson shall not do any or all of the following:
1. Increase his compensation or extend the Term;
2. Purchase, or contract to purchase, any real
property on behalf of Employer or any Employer Entities; or
3. Sell or refinance, or contract to sell or
refinance, any Real Property Assets on behalf of Employer or
any Employer Entities.
Thompson agrees that he shall promptly advise the Employer's Chief Investment
Officer of the pendency of any acquisition or disposition of any real property
on behalf of Employer or any Employer Entities, and shall follow the directions
of the Chief Investment Officer (the "CIO") with respect to the further pursuit
of any such potential acquisition or disposition. If, at any time during the
Term, however, Thompson seeks approval or direction from the CIO with respect
to a particular acquisition or disposition, and the CIO is not available, then
Thompson may seek approval or direction from Employer's COO. If Thompson
receives the approval of the CIO or the COO, as applicable, to pursue an
acquisition or disposition, and Thompson desires that a formal purchase and
sale contract be executed in connection therewith, then any one of the
President, COO, Chief Financial Officer or the CIO of Employer shall be the
signatory to any such contract for an acquisition or disposition. Thompson
acknowledges that, as of the date of this Agreement, no acquisition or
disposition may be consummated on behalf of the Employer without the approval
of the Investment Committee or, in certain instances, the Board. As of the
date of this Agreement, acquisitions or dispositions of real property on behalf
of Employer require only the approval of the Investment Committee if the
aggregate consideration required to be paid for such acquisition or disposition
does not exceed $30,000,000. Currently, then, the Board must approve
acquisitions or dispositions involving consideration in excess of $30,000,000.
Notwithstanding anything to the contrary contained in this Section 2.05, if the
Board modifies its policies with respect to the matters provided in this
Section 2.05, then Thompson shall abide by such modified policies to the extent
such policies differ from what is provided above in this Section 2.05.
2.06 Notwithstanding anything to the contrary contained above, without the
prior approval of the COO, or such other officer designated by the COO for such
purpose, Thompson shall not enter into any Lease (i) with respect to premises
exceeding 100,000 rentable square feet, or (ii) with annual fixed net base rent
exceeding $500,000 for any year of the lease term, assuming the exercise of all
options in the Lease, or (iii) with an initial term exceeding five (5) years,
or with a full term, assuming the exercise of all options in the Lease,
exceeding ten (10) years, or (iv) that requires the expenditure of $100,000 or
more, in the aggregate, by Employer to both satisfy the
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<PAGE> 4
obligations imposed on the landlord under that Lease to perform tenant
improvements and pay any leasing commissions owed by Employer in connection
with such Lease.
2.07 As an SRD, Thompson shall also have the authority to negotiate the
terms and provisions of, and enter into, any third-party management contracts
for the day-to-day leasing, operation and management of New Properties if and
to the extent that, in the process of approving an Acquisition, the Investment
Committee or the Board (if the Board's approval of the Acquisition is
required) approve the engagement of a third-party manager for the applicable
New Property. In such an event, Thompson must engage the third-party manager
in accordance with any additional terms, with respect to such third-party
management arrangement, required by the Investment Committee and the Board (if
the Board's approval of the Acquisition is required).
ARTICLE III - COMPENSATION
3.01 Thompson shall receive a guaranteed minimum annual salary ("Annual
Salary"), based on the duration of his employment during any year, equal to the
Annual Salary payable to all other SRDs engaged by Employer, from time to time;
and such Annual Salary shall be payable in twenty-four (24) equal installments
on the fifteenth day and last day of each month during the Term (a "Payment
Date"). If any Payment Date falls on other than a normal business day, the
salary payment due on such Payment Date shall instead be payable on the last
normal business day preceding such Payment Date.
3.02 In addition to the Annual Salary, Thompson shall also be entitled to
participate in all incentive, bonus and stock option programs offered by
Employer from time to time to the SRDs, as such may be approved or implemented
from time to time by the Compensation Committee of the Board. Thompson's right
to participate in, and to receive compensation under, such programs shall in no
event be on lesser terms or in lesser amounts than those offered to the SRDs;
provided, however, that incentive or bonus arrangements (a) for which Thompson
and the SRDs are eligible; (b) that are based upon the achievement or
surpassing of performance goals established by Employer, and (c) that are based
upon specified commercial criteria made known to Thompson and the SRDs in
advance, may vary among the different regions of Employer based upon relative
regional performance.
3.03 Employer shall be entitled to withhold from those amounts payable to
Thompson from time to time under this Agreement any and all federal, state or
local withholding or other taxes or charges which Employer is, from time to
time, required (by applicable law, statute, ordinance or regulation) to
withhold. Employer shall be entitled to rely upon the opinion of its legal
counsel with regard to any question concerning the amount or requirement of any
such withholding.
ARTICLE IV - THOMPSON'S BENEFITS AND BONUSES
4.01 Employer will provide Thompson with medical/hospitalization/major
medical insurance coverage, including dental benefits, in the same amounts,
pursuant to the same terms, and subject to the same deductible, as is provided
pursuant to the insurance coverage made available, from time to time, to the
SRDs.
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4.02 Employer will provide Thompson with, and keep in effect during the
Term, a term life insurance policy which Employer will purchase from an insurer
satisfactory to Thompson and providing coverage in an amount equal to the
amount of such term life insurance provided to the SRDs. Thompson shall have
the right to designate such individual or other entity as he wishes as the
owner of such life insurance policy, and shall have the power to designate and
change, from time-to-time, the beneficiary under such insurance policy.
4.03 Employer will provide Thompson with a disability income insurance
policy that will (i) provide Thompson with income per year equal to that amount
of annual income provided to the SRDs under their respective disability
insurance policies, (ii) have a waiting period of not greater than three (3)
months from the date of sickness, injury or other disability prior to any
disability payment, (iii) provide for lifetime benefits, and (iv) contain a
waiver of premium clause. At Thompson's option, he may elect to pay the annual
premiums for such disability insurance himself, in which case his Annual Salary
will be increased by the amount equal to such annual premium. The foregoing
disability income insurance policy will define disability in terms of the
functions which Thompson is required to perform pursuant to this Agreement, and
should Thompson not be able to perform such functions, he shall be deemed
disabled under such policy.
4.04 Thompson shall be entitled to vacation leave of four (4) weeks during
each calendar year, beginning January 1, 1998, with full pay (determined on a
pro rata basis, based on the then-applicable Annual Salary). The time for
vacation shall be chosen by Thompson and must be taken within fifteen (15)
months after the start of the calendar year with respect to which such vacation
leave is made available. Thompson's right to be paid in lieu of any vacation
leave not timely taken shall be determined by the Compensation Committee of the
Board and shall be consistent with the policy established for the SRDs.
4.05 Thompson shall be entitled to the following paid holidays per year
(if falling on a day other than a Saturday or Sunday): New Year's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
4.06 Thompson shall be entitled to ten (10) days per calendar year,
beginning January 1, 1997, as sick or personal leave days with full pay
(determined on a pro rata basis, based on the then-applicable Annual Salary).
Sick or personal leave may be accumulated up to a total of twenty (20) days.
4.07 If Thompson becomes disabled during the Term for any reason that
prevents him from fully performing his duties under this Agreement and, as a
result, he would be entitled, but for any waiting period, to disability
payments under the disability insurance policy described above, Employer agrees
to continue his salary (determined on a pro rata basis, based on the
then-applicable Annual Salary) during the period of his disability until such
time as benefits due under the disability income insurance policy (provided
pursuant to Section 4.03 above), begin to accrue, but in no event beyond the
end of the Term.
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ARTICLE V - REIMBURSEMENT OF THOMPSON'S EXPENSES
5.01 Thompson is authorized to incur reasonable business expenses for
promoting the business of Employer, including expenditures for entertainment,
gifts, and travel. Employer will reimburse Thompson in accordance with its
normal expense-reimbursement procedure for all business expenses reasonably
incurred, provided that Thompson presents to Employer both of the following:
(a) A monthly expense report in which Thompson records:
(i) the amount of each expenditure;
(ii) the date, place, and designation of the type of
entertainment, travel, or other expenses or the date and
description of any gift given by Thompson for a business
purpose;
(iii) the business purpose for each expenditure; and
(iv) the name, occupation, address, and other relevant
information of each person who is entertained or given a gift
sufficient to establish the business relationship to Employer.
(b) Documentary evidence (such as receipts or paid bills) providing
sufficient information to establish the amount, date, place, and essential
character of each business expenditure of $75.00 or more.
5.02 Thompson shall receive an automobile allowance determined in
accordance with the Budget for the Territory during the applicable calendar
year (the "Auto Allowance"), which Auto Allowance shall be paid in accordance
with Employer's policy for payment of comparable allowances. Employer shall
have no obligation to make any payments of the Auto Allowance from and after
the date on which Thompson's employment with Employer is terminated pursuant to
Section 6. In addition to the foregoing, it is understood and agreed that, in
order to properly perform his duties, Thompson must have the use of a mobile
telephone. Employer agrees to pay directly, or to reimburse Thompson for, any
and all costs associated with the purchase, installation, activation, and
business use of such mobile telephone (in the ordinary course of Thompson's
performance of his duties under this Agreement).
ARTICLE VI - TERMINATION
6.01 Employer may terminate this Agreement for any reason whatsoever,
including, without limitation, under the following circumstances:
(a) The occurrence of a breach of this Agreement by Thompson
(including, but not limited to, excessive absence) that Thompson does not
cure within ten (10) days after Employer delivers to Thompson written
notice of the alleged breach ("Default Notice"). A termination pursuant
to this paragraph shall take effect upon the expiration of the relevant
cure period, if the subject breach has not been cured.
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(b) For "cause," which, for purposes of this Agreement, shall
include, without limitation, (i) the fraudulent or criminal conduct of
Thompson adversely affecting Employer, (ii) alcoholism of, or illegal
substance abuse by, Thompson, (iii) any willful, reckless, or grossly
negligent act, or failure to act, of Thompson, (iv) any breach of the
fiduciary duty owed by Thompson to Employer, any dishonesty, disclosure
of Confidential Information (as hereinafter defined), a breach of Article
VII hereof, or (v) any attempted election to terminate this Agreement. A
termination "for cause" shall take effect immediately upon written notice
to Thompson from Employer;
(c) Thompson suffering a long-term disability. A long-term
disability shall be defined as Thompson's inability (based on the
standard for honoring a claim established under the disability insurance
policy procured for Thompson pursuant to this Agreement), due to illness
or injury (including alcoholism or illegal substance abuse), to perform
his duties as established in Article II above, for a period of three (3)
consecutive months. A termination pursuant to this paragraph shall take
effect immediately upon written notice to Thompson from Employer after
the expiration of such three-month period;
(d) Thompson's death, in which case the Agreement shall terminate
immediately; and
(e) The occurrence of a breach of this Agreement on three or more
occasions during any 12-month period of the Term (regardless of whether
or not such breaches are cured in a timely fashion), in which case this
Agreement shall terminate immediately upon written notice to Thompson
from Employer.
In the event Employer exercises its right of termination for reasons other than
any of those specified for in paragraphs (a) through (e) above ("Unstated
Reasons"), such termination shall be effective thirty (30) days after
Employer's delivery of its written notice of such termination; provided,
however, from and after the effective date of a termination for any Unstated
Reason, and continuing for a period of six (6) months, or through the
Expiration Date, whichever occurs first, Employer shall continue to pay to
Thompson, the Annual Salary and benefits to which he would have been entitled
(under the express terms of this Agreement), but for the accelerated
termination hereof.
6.02 Thompson shall have no right to terminate this Agreement, except (a)
as provided in Sections 6.06 and 6.07 below, and (b) in the event of the
occurrence of a breach of this Agreement by Employer, which Employer does not
cure within ten (10) days after delivery of Thompson's written notice of such
alleged breach.
6.03 Subject to Article 8, termination of this Agreement by Employer or by
Thompson pursuant to any of the provisions of this Article VI shall not
prejudice any other remedy to which the terminating party may be entitled as a
result of a breach of this Agreement by the non-terminating party, whether at
law, in equity, or under this Agreement.
6.04 In the event this Agreement is terminated for any reason, Thompson
shall be entitled to receive a prorated portion of his Annual Salary through
the effective date of such
7
<PAGE> 8
termination. In addition, in the event this Agreement is terminated for any
reason, Thompson shall be entitled to reimbursement of all business expenses
incurred by him (pursuant to Section 5.01) prior to the effective date of
termination that would otherwise be reimbursable hereunder. Further, Thompson
shall also be entitled to the remuneration provided in Sections 6.01, 6.06 and
6.07.
6.05 Upon the termination of this Agreement for any reason, Thompson shall
forthwith return and deliver to Employer, and shall not retain any originals or
copies of, any books, papers, price lists or customer contracts, written
proposals of Employer or prospective customers or tenants, customer/tenant
lists, rent rolls, leases, files, books of account, notebooks and other
documents and data relating to the performance of services rendered by Thompson
hereunder, except for those materials in Thompson's possession immediately
prior to the commencement of the Term (collectively, "Employer's Materials"),
all of which Employer Materials are hereby deemed to constitute the property of
Employer.
6.06 If, at any time during the Term, except in connection with a
termination pursuant to Section 6.01(a), (b) or (e) above, Thompson is
Constructively Discharged (as hereinafter defined), then Thompson shall have
the right, by written notice to the Employer, given within one hundred and
twenty (120) days of the effective date of such Constructive Discharge, to
terminate his services hereunder (the "Termination Notice"), effective as of
the date that is thirty (30) days after the date on which such Termination
Notice is delivered, and Thompson shall have no further rights or obligations
under this Agreement other than as provided in this Section 6.06 and in Article
VII. For purposes of this Agreement, Thompson shall be deemed to have been
"Constructively Discharged" upon the occurrence of any of the following events:
(i) Thompson is not re-elected to, or is otherwise removed from, his
position as the SRD in the Territory with the Employer other than as a
result of (x) Thompson's election or appointment to positions of equal or
superior scope and responsibility or (y) Thompson's breach of, or default
under, the terms of this Agreement; or
(ii) Employer fails to vest Thompson with the powers, authority and
support services normally attendant, from time to time, to the other
SRDs; or
(iii) Employer notifies Thompson, in writing, that Thompson's
employment will be terminated (other than pursuant to Section 6.01(a),
(b) or (e) above) or materially modified in the future, or that Thompson
will be Constructively Discharged in the future.
If Thompson is Constructively Discharged and timely delivers a Termination
Notice, then from and after the effective date of a termination pursuant to a
Termination Notice, and continuing for a period of six months or through the
Expiration Date, whichever occurs first, Employer shall continue to pay to
Thompson the Annual Salary and benefits to which he would have been entitled
(under the express terms of this Agreement), but for the accelerated
termination hereof.
6.07 (a) In the event of a Change in Control (as defined below) of the
Employer and the termination of Thompson's employment by Thompson or by the
Employer under either (i) or (ii) below, Thompson shall be entitled to the
"Severance Payment" described below. The Severance Payment shall not be offset
against or diminish any other compensation or benefits
8
<PAGE> 9
accrued as of the effective date of termination. The following shall
constitute termination under this Section 6.07:
(i) Thompson terminates his employment under this Agreement pursuant
to a written notice to that effect delivered to the Board within six (6)
months after the occurrence of the Change in Control; or
(ii) Thompson's employment is terminated, including Constructively
Discharged, by the Employer or its successor either in contemplation of
or within two (2) years after the Change in Control, other than pursuant
to Section 6.01(a), (b) or (e) above.
(b) For purposes of this paragraph, the term "Change in Control" shall
mean the following:
(i) The consummation of the acquisition by any person [as such term
is defined in Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act")] of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the 1934 Act) of forty percent
(40%) or more of the combined voting power embodied in the
then-outstanding voting securities of the Employer; or
(ii) Approval by the stockholders of the Employer of: (1) a merger
or consolidation of the Employer, if the stockholders of the Employer
immediately before such merger or consolidation do not, as a result of
such merger or consolidation, own, directly or indirectly, more than
fifty percent (50%) of the combined voting power of the then-outstanding
voting securities of the entity resulting from such merger or
consolidation in substantially the same proportion as was represented by
their ownership of the combined voting power of the voting securities of
the Employer outstanding immediately before such merger or consolidation;
or (2) a complete or substantial liquidation or dissolution, or an
agreement for the sale or other disposition, of all or substantially all
of the assets of the Employer.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because forty percent (40%) or more of the combined voting power
of the then-outstanding securities is acquired by: (x) a trustee or other
fiduciary holding securities under one or more employee benefit plans
maintained for employees of the entity; or (y) any corporation or other entity
which, immediately prior to such acquisition, is owned directly or indirectly
by the stockholders of the Employer in the same proportion as their ownership
of stock in the Employer immediately prior to such acquisition. For purposes
of this Section 6.07, the "Severance Payment" shall be deemed to be mean the
Annual Salary and benefits to which Thompson would have been entitled (under
the express terms of this Agreement), but for the accelerated termination
hereof, and such Severance Payment shall be due and payable with respect to and
during the period of time commencing on the effective date of the termination
of Thompson's employment under this Section 6.07, and continuing for a period
of six (6) months or through the Expiration Date, whichever occurs first.
9
<PAGE> 10
ARTICLE VII - NONCOMPETITION AND CONFIDENTIALITY
7.01 (a) In consideration of (i) this Agreement; (ii) the payment of the
amounts described in Sections 2 and 3 hereof; (iii) the $75,000 noncompete fee
received by Thompson from an affiliate of Employer as the President of TRAC
(defined below) pursuant to the Contribution Agreement; and (iv) the terms and
provisions of the Contribution Agreement, Thompson hereby covenants and agrees
that during the period commencing on the Effective Date and ending on that date
that is (w) the third (3rd) anniversary of the date upon which Thompson's
employment with Employer is terminated pursuant to Section 6.01(b)(iv); (x) the
expiration of any applicable period for which Thompson receives a severance
payment, whether pursuant to Sections 6.01, 6.06 or 6.07, (y) the effective
termination date in the event of a termination of this Agreement pursuant to
Sections 6.01(a), 6.01(b)(i), (ii) or (iii), 6.01(c) or 6.01(e); or (z) the
stated Expiration Date in the event of a termination of this Agreement pursuant
to Section 6.01(b)(v): (a) neither Thompson nor any entity in which Thompson
has a controlling interest (collectively, the "Non-Compete Parties"), shall,
directly or indirectly, within the Territory, in any manner own, manage,
control, participate in, consult with, render services for, or otherwise deal
with, in any manner any entity involved in the development, management,
construction, leasing or operation of other projects or properties used for
industrial/warehouse/distribution purposes; provided, however, that the
Non-Compete Parties may become non-controlling, passive investors without
voting control in warehouse/industrial/distribution properties or in entities
owning or controlling such properties; and (b) no Non-Compete Party shall
solicit, initiate contact with, approach, negotiate with, or hold discussions
with, or on behalf of, any entity (other than Employer, or any of its
affiliates) in connection with any matter relating to the purchase, sale,
ground lease, development or acquisition of any other interests, of any nature
whatsoever, of any warehouse or industrial property in the Territory.
Notwithstanding anything contained herein to the contrary, for a period of
three (3) years after the expiration or a termination of this Agreement for any
reason whatsoever, (i) no Non-Compete Party shall, directly or indirectly, in
any manner whatsoever, initiate contact with or solicit any of the current
tenants ("Tenants") or any future tenant at any of the Properties or any new
industrial/warehouse/distribution facilities developed or acquired by Employer
or any affiliate of Employer in the Territory ("New Tenants") with respect to
alternative locations or opportunities for such Tenants or New Tenants, whether
for purposes of leasing, build-to-suit or otherwise and (ii) in the event any
Non-Compete Party is contacted by any of the Tenants or New Tenants without
having solicited or initiated contact, the applicable Non-Compete Party shall
immediately notify Employer of such fact and shall refer such Tenant or New
Tenant to Employer. Thompson further agrees that, in the event of breach of
any or all of the covenants contained in this Section 7.01, Employer shall be
entitled to all available remedies against any or all of the Non-Compete
Parties, at law or in equity, including without limitation, injunctive relief,
all of which remedies shall be cumulative and non exclusive.
(b) Notwithstanding the foregoing, Thompson shall be entitled to (w)
participate in the day-to-day management and leasing decisions concerning (aa)
the projects identified on Exhibit A hereto until the completion of such
projects and (bb) the Home Depot Project (as such term is defined in the
Contribution Agreement) until the acquisition of the Home Depot Project by an
affiliate of Employer pursuant to the Contribution Agreement in his capacity as
a shareholder of Thompson Kirk Properties, Inc. ("TK Properties"), but such
activities shall be conducted subject to, and in accordance with, the terms,
conditions and limitations set forth in Section 26.15 of the
10
<PAGE> 11
Contribution Agreement; (x) participate in the strategic and significant
business decisions (e.g., sale and refinance) concerning the Metropointe
Commerce Center ("Metropointe") as well as to participate in the day-to-day
management and leasing decisions concerning Metropointe in his capacity as the
shareholder of TK Properties pursuant to that certain Incentive Property
Management Agreement, dated May 1, 1991, by and between TK Properties and 275
Gandy Associates, but such activities shall be conducted subject to, and in
accordance with, all of the terms, conditions and limitations set forth in
Section 26.15 of the Contribution Agreement; (y) to participate in his capacity
as the President of TRAC Design Builders ("TRAC") for the limited purpose of
(i) the completion of the Existing Trac Projects (as such term is defined in
the Contribution Agreement) and (ii) the liquidation and dissolution of TRAC
upon the completion of such Existing Trac Projects, which activities shall be
prosecuted and undertaken subject to all of the terms, conditions and
limitations set forth in Section 26.16 of the Contribution Agreement with
respect to the ongoing conduct of business by TRAC; and (z) to participate in
his capacity as (z) a limited partner of Gardner-TKS, Ltd., a Florida limited
partnership (the "Gardner Venture"), and (y) the President of DCT Holdings,
Inc., a Florida corporation and the sole general partner of the Gardner Venture
("DCT"), in the significant business decisions (e.g. sale and refinance) and
the day-to-day management of the approximately 13.3 acres of land which is the
subject of the partnership agreement for the Gardner Venture, but subject to
all of the terms, conditions and limitations set forth in that certain
Agreement by and between DCT and FR Acquisitions, Inc. relating to the Gardner
Venture.
7.02 Employer acknowledges that heretofore or hereafter during the course
of Thompson's employment, Employer has produced, and Thompson may hereafter
produce or have access to, records, data, trade secrets and information not
generally available to the public, including, but not limited to, the
Employer's Materials ("Confidential Information"), regarding Employer, its
subsidiaries and affiliates, the business of Employer, and its real properties
and tenants in the Territory and elsewhere in the United States. Accordingly,
during and subsequent to the Term, Thompson shall hold in confidence and not
directly or indirectly disclose, copy or make lists of any or all of such
Confidential Information, except to the extent that (i) such information is or
hereafter becomes lawfully available from public sources; (ii) such disclosure
is authorized in writing by Employer; (iii) such disclosure is required by a
law or any competent administrative agency or judicial authority; or (iv)
otherwise as is reasonably necessary or appropriate in connection with the
performance by Thompson of his duties hereunder. All records, files, documents
and other materials or copies thereof relating to Employer's business that
Thompson prepares, has access to, or utilizes (including, but not limited to,
the Employer Materials), shall be and remain the sole property of Employer; and
shall be promptly returned to Employer upon termination of Thompson's
employment hereunder. Subject to Section 7.01, during the term of this
Agreement, Thompson agrees to abide by Employer's reasonable policies, as in
effect from time to time and applicable to the SRDs, respecting avoidance of
interests conflicting with those of Employer.
ARTICLE VIII - GENERAL PROVISIONS
8.01 Any notices to be given under this Agreement by either party to the
other must be in writing and may be effected either by personal delivery or by
a reputable next-day overnight delivery service which obtains a signed receipt
for its deliveries. Notices delivered personally
11
<PAGE> 12
shall be deemed communicated as of the actual receipt by the addressee.
Notices sent by next-day overnight delivery service shall be deemed
communicated on the next business day after being sent. Notices shall be
addressed as follows:
If intended for Thompson:
Donald C. Thompson
6302 Benjamin Road, Suite 400
Tampa, Florida 33634
With a copy to his Attorney:
Annis, Mitchell, Cockey, Edwards & Roehn, P.A.
One Tampa City Center
Suite 2100
Tampa, Florida 33601
Attention: Stephen L. Kussner, Esq.
If intended for Employer:
First Industrial Realty Trust, Inc.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attn: Michael Brennan,
Chief Operating Officer
With a copy to Employer's Attorney:
Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attn: Suzanne Bessette-Smith
8.02 This Agreement shall be governed by and construed in accordance with
the laws of Illinois.
8.03 This Agreement is a contract for personal services of Thompson, and
as such, is not assignable by Thompson.
8.04 This Agreement shall not be assignable by Employer except with the
prior written approval of an assignment and of the proposed assignee by
Thompson. Notwithstanding the foregoing, Employer may assign its rights under
this Agreement to any entity which acquires title to all of Employer's Real
Property Assets in the Territory, without Thompson's prior approval, subject to
the following two (2) conditions:
12
<PAGE> 13
1. Employer shall stand as surety for the performance of the assignee
under this Agreement; and
2. If, after being informed of the assignment and of the identity of the
assignee, Thompson is not willing to be employed by the assignee, upon three
(3) months' prior written notice to Employer and to the assignee, Thompson may
terminate this Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
13
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Employment Agreement to be duly signed the day and
year first above written.
FIRST INDUSTRIAL REALTY TRUST, INC., a
Maryland corporation
By: /s/ MICHAEL W. BRENNAN
----------------------------------
Name: Michael W. Brennan
----------------------------
Title: Chief Operating Officer
----------------------------
/s/ DONALD C. THOMPSON
--------------------------------------
Donald C. Thompson
14
<PAGE> 15
EMPLOYMENT AGREEMENT
EXHIBIT A
(AS OF DECEMBER 10, 1997)
1. Fairfield Commerce Center Project: Oversight of construction and
development of an industrial facility by TRAC and ongoing leasing and
management.
2. Public Storage: Oversight of construction and development of a warehouse
facility.
<PAGE> 1
EXHIBIT 12.1
FIRST INDUSTRIAL REALTY TRUST, INC.
COMPUTATION OF RATIOS OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (A)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
----------------------------------------------------
1997 1996 1995 1994 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income (loss) before disposition of interest
rate protection agreement, gain on
sales of properties, minority interest
and extraordinary items .................. $ 64,949 $ 36,524 $ 19,756 $ 8,855 $ (3,399)
Plus interest expense and
amortization of deferred financing
costs and interest rate protection
agreements ............................... 52,671 32,240 33,029 26,461 19,184
-------- -------- -------- -------- --------
Earnings before disposition of interest rate
protection agreements, gain on sales of
real estate, extraordinary items, minority
interest and fixed charges ............... $117,620 $ 68,764 $ 52,785 $ 35,316 $ 15,785
======== ======== ======== ======== ========
Fixed charges and preferred stock
dividends (b) ............................ $ 65,678 $ 36,660 $ 33,821 $ 26,511 $ 19,197
======== ======== ======== ======== ========
Ratio of earnings to combined fixed
charges and preferred stock
dividends (c) ............................ 1.79x 1.88x 1.56x 1.33x -- (d)
======== ======== ======== ======== ========
</TABLE>
(a) The Company completed its initial public offering on June 30, 1994.
Information prior to the initial public offering includes the operations
and accounts of the Company's predecessor and information subsequent to the
initial public offering includes the historical operations and accounts of
the Company.
(b) There was no preferred stock outstanding prior to November, 1995.
(c) For purposes of computing the ratios of earning to fixed charges and
preferred stock dividends, earnings have been calculated by adding fixed
charges (excluding capitalized interest) to income (loss) before
disposition of interest rate protection agreement, gain on sales of
properties, minority interest and extraordinary items. Fixed charges
consist of interest costs, whether expensed or capitalized, and
amortization of interest rate protection agreement(s) and deferred
financing costs.
(d) For the year ended December 31, 1993, earnings were not sufficient to cover
fixed charges. Additional earnings of $3.4 million would have been required
to achieve a ratio of 1.0 for the year ended December 31, 1993.
<PAGE> 1
EXHIBIT 21.1
FIRST INDUSTRIAL REALTY TRUST, INC.
SUBSIDIARIES OF THE REGISTRANT
<TABLE>
<CAPTION>
State of
Incorporation
Name Formation Registered Names in Foreign Jurisdictions
- ---------------------------------------------- -------- -------------------------------------------------
<S> <C> <C>
First Industrial, L.P. Delaware First Industrial (Alabama), Limited Partnership
First Industrial (Michigan), Limited Partnership
First Industrial (Minnesota), Limited Partnership
First Industrial (Tennessee), L.P.
First Industrial Limited Partnership
First Industrial Finance Corporation Maryland N/A
First Industrial Financing Partnership, L.P. Delaware First Industrial Financing Partnership, Limited Partnership
First Industrial Financing Partnership (Alabama),
Limited Partnership
First Industrial Financing Partnership (Minnesota),
Limited Partnership
First Industrial Financing Partnership (Wisconsin),
Limited Partnership
First Industrial Management Corporation Maryland N/A
First Industrial Enterprises of Michigan, Inc. Michigan N/A
(Formerly Damone/Andrew Enterprises, Inc.)
First Industrial Group of Michigan, Inc. Michigan N/A
(Formerly Damone/Andrew Enterprises, Inc.)
First Industrial of Michigan, Inc. (Formerly Michigan N/A
Damone/Andrew Incorporated)
First Industrial Associates of Michigan, Inc. Michigan N/A
(Formerly Damone/Andrew Associates, Inc.)
First Industrial Construction Company of Michigan N/A
Michigan, Inc. (Formerly Damone/Andrew
Construction Company)
FR Acquisitions, Inc. Maryland FIR Acquisitions, Inc.
First Industrial Pennsylvania Corporation Maryland N/A
First Industrial Pennsylvania, L.P. Delaware N/A
First Industrial Harrisburg Corporation Maryland N/A
First Industrial Harrisburg, L.P. Delaware N/A
First Industrial Securities Corporation Maryland N/A
First Industrial Securities, L.P. Delaware First Industrial Securities, Limited Partnership
First Industrial Mortgage Corporation Maryland N/A
First Industrial Mortgage Partnership, L.P. Delaware First Industrial MP, L.P.
First Industrial Indianapolis Corporation Maryland N/A
First Industrial Indianapolis, L.P. Delaware N/A
FI Development Services Corporation Maryland N/A
(Formerly First Industrial Development
Services, Inc.)
First Industrial Development Services, L.P. Delaware N/A
(Formerly First Industrial Development
Services Group, L.P.)
FI Development Services Group, L.P. Delaware N/A
FR Development Services, L.L.C. Delaware N/A
FR Development Services, Inc. Maryland N/A
(Formerly First Industrial Development
Services Group, L.P.)
First Industrial Colorado, Inc. Maryland N/A
Pacifica Commercial Brokerage Group, Inc. Maryland N/A
</TABLE>
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this Form 10-K and the incorporation by
reference into the Registrants four previously filed Registration Statements on
Form S-3 (File Nos. 33-95190, 333-03999, 333-21887 and 333-43641) and the
Registrants three previously filed Registration Statements on Form S-8 (File
Nos. 33-95188, 333-36699 and 333-45317) of our report dated February 17, 1998,
on our audit of the consolidated financial statements and the financial
statement schedule of First Industrial Realty Trust, Inc.
COOPERS & LYBRAND L.L.P.
Chicago, Illinois
March 23, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF FIRST INDUSTRIAL REALTY TRUST, INC. FOR THE YEAR ENDED
DECEMBER 31, 1997, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<EXCHANGE-RATE> 1
<CASH> 13,222
<SECURITIES> 0
<RECEIVABLES> 7,730
<ALLOWANCES> (1,450)
<INVENTORY> 0
<CURRENT-ASSETS> 19,502
<PP&E> 1,994,346
<DEPRECIATION> (121,030)
<TOTAL-ASSETS> 2,272,163
<CURRENT-LIABILITIES> 72,383
<BONDS> 0
0
17
<COMMON> 364
<OTHER-SE> 854,209
<TOTAL-LIABILITY-AND-EQUITY> 2,272,163
<SALES> 0
<TOTAL-REVENUES> 223,203
<CGS> 0
<TOTAL-COSTS> (59,762)
<OTHER-EXPENSES> (48,633)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (28,954)
<INCOME-PRETAX> 66,070
<INCOME-TAX> 0
<INCOME-CONTINUING> 66,070
<DISCONTINUED> 0
<EXTRAORDINARY> (14,124)
<CHANGES> 0
<NET-INCOME> 51,946
<EPS-PRIMARY> 1.27
<EPS-DILUTED> 1.26
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF FIRST INDUSTRIAL REALTY TRUST, INC. FOR THE YEAR ENDED
DECEMBER 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 140,055
<CGS> 0
<TOTAL-COSTS> (39,224)
<OTHER-EXPENSES> (35,353)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (28,954)
<INCOME-PRETAX> 37,937
<INCOME-TAX> 0
<INCOME-CONTINUING> 37,937
<DISCONTINUED> 0
<EXTRAORDINARY> (2,373)
<CHANGES> 0
<NET-INCOME> 35,664
<EPS-PRIMARY> 1.28
<EPS-DILUTED> 1.28
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF FIRST INDUSTRIAL REALTY TRUST, INC. FOR THE YEAR ENDED
DECEMBER 31, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> DEC-31-1995
<EXCHANGE-RATE> 1
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 0
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 0
<SALES> 0
<TOTAL-REVENUES> 106,486
<CGS> 0
<TOTAL-COSTS> (28,302)
<OTHER-EXPENSES> (29,837)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (28,591)
<INCOME-PRETAX> 12,349
<INCOME-TAX> 0
<INCOME-CONTINUING> 12,349
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 12,349
<EPS-PRIMARY> .63
<EPS-DILUTED> .63
</TABLE>
