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FIRST INDUSTRIAL, L.P.
Issuer
to
FIRST TRUST NATIONAL ASSOCIATION
Trustee
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Supplemental Indenture No. 2
Dated as of May 22, 1997
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$100,000,000
of
7 3/8% Notes due 2011
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SUPPLEMENTAL INDENTURE NO. 2, dated as of May 22, 1997 (the
"Supplemental Indenture"), between FIRST INDUSTRIAL, L.P., a limited partnership
duly organized and existing under the laws of the State of Delaware (herein
called the "Operating Partnership"), and FIRST TRUST NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership has heretofore delivered to the Trustee an
Indenture dated as of May 13, 1997 (the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Operating Partnership's Registration
Statement on Form S-3 (Registration No. 333-21873), providing for the issuance
from time to time of Debt Securities of the Operating Partnership (the
"Securities").
Section 301 of the Indenture provides for various matters with respect
to any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides for the Operating Partnership
and the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of
the series of Securities provided for herein by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Notes or of either series thereof, as follows:
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ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of
this Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed
to be incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means (i) the aggregate
interest expense for such period in respect of, and the amortization during such
period of any original issue discount of, Indebtedness of the Operating
Partnership and its Subsidiaries and the amount of dividends which are payable
during such period in respect of any Disqualified Stock and (ii) so long as
First Industrial Securities, L.P. ("Securities, L.P.") is a Subsidiary of the
Operating Partnership, distributions which are payable during such period in
respect of any preference equity interests of Securities, L.P.
"Business Day" means any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banks in New York City or in
Chicago are authorized or required by law, regulation or executive order to
close.
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"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Certificates" means 7 3/8% Pass-Through Asset Trust Securities due
May 15, 2004 to be issued by the Trust pursuant to the Trust Agreement.
"Consolidated Income Available for Debt Service" for any period
means Earnings from Operations of the Operating Partnership and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest on Indebtedness of the
Operating Partnership and its Subsidiaries, (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income, (iii) amortization
of debt discount, (iv) provisions for gains and losses on properties and
property depreciation and amortization, (v) the effect of any noncash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period, (vi) amortization of deferred charges and (vii)
interest income related to investments irrevocably deposited with an agent of
the Operating Partnership or any of its Subsidiaries, as the case may be, for
the purpose of defeasing any indebtedness or any other obligation (whether
through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be administered,
which office at the date hereof is located at One Illinois Center, 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and, for purposes of the Place of Payment
provisions of Sections 305 and 1002 of the Indenture, is located at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the maturity price or redemption price
of which may, at the option of such Person, be paid in Capital Stock which is
not Disqualified Stock), (ii) is convertible
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into or exchangeable or exercisable for Indebtedness or Disqualified Stock or
(iii) is redeemable at the option of the holder thereof, in whole or in part
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the redemption price of which may, at
the option of such Person, be paid in Capital Stock which is not Disqualified
Stock), in each case on or prior to the Stated Maturity of the Notes.
"Earnings from Operations" for any period means net income excluding
gains and losses on sales of investments, extraordinary items and property
valuation losses, net as reflected in the financial statements of the Operating
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP (except that for purposes hereof, each Subsidiary
of the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind; provided, however, that the term "Encumbrance" shall not
include any mortgage, lien, charge, pledge or security interest securing
indebtedness or any other obligation which has been defeased (whether a covenant
defeasance or otherwise) pursuant to the terms of such indebtedness or other
obligation or the terms of any instrument creating or evidencing it.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"Final Distribution Date" means May 15, 2004.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Indebtedness" of the Operating Partnership or any of its
Subsidiaries means (i) any indebtedness of the Operating Partnership or any of
its Subsidiaries, whether or not contingent, in respect of (a) borrowed money or
evidenced by bonds, notes, debentures or similar instruments whether or not such
indebtedness is secured by any Encumbrance existing on property owned by the
Operating Partnership or any of its Subsidiaries, (b) indebtedness for borrowed
money of a Person other than the
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Operating Partnership or a Subsidiary of the Operating Partnership which is
secured by any Encumbrance existing on property owned by the Operating
Partnership or any of its Subsidiaries, to the extent of the lesser of (x) the
amount of indebtedness so secured and (y) the fair market value of the property
subject to such Encumbrance, (c) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, and all conditional sale obligations or obligations
under any title retention agreement, (d) the principal amount of all obligations
of the Operating Partnership or any of its Subsidiaries with respect to
redemption, repayment or other repurchase of any Disqualified Stock, (e) any
lease of property by the Operating Partnership or any of its Subsidiaries as
lessee which is reflected on the Operating Partnership's consolidated balance
sheet determined in accordance with GAAP (except for the purposes hereof, each
Subsidiary of the Operating Partnership shall be treated as if such Subsidiary
were a subsidiary under GAAP) as a capitalized lease, or (f) interest rate
swaps, caps or similar agreements and foreign exchange contracts, currency swaps
or similar agreements, and (ii) the liquidation preference on any issued and
outstanding preferred equity interests of Securities, L.P., to the extent, in
the case of items of indebtedness under (i)(a) through (c) above, that any such
items (other than letters of credit) would appear as a liability on the
Operating Partnership's consolidated balance sheet determined in accordance with
GAAP (except that for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under
GAAP), and also includes, to the extent not otherwise included, any obligation
by the Operating Partnership or any of its Subsidiaries to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of collection
in the ordinary course of business), Indebtedness of another Person (other than
the Operating Partnership or any of its Subsidiaries); provided, however, that
the term "Indebtedness" shall not include any indebtedness or any other
obligation that has been defeased (whether a covenant defeasance or otherwise)
pursuant to the terms of such indebtedness or other obligation or the terms of
any instrument creating or evidencing it.
"Notes" has the meaning specified in Section 2.1 hereof.
"Subsidiary" means, (i) with respect to any Person, any corporation,
partnership or other entity of which a majority of (a) the voting power of the
voting equity securities or
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(b) the outstanding equity interests of which are owned, directly or indirectly,
by such Person and (ii) with respect to the Operating Partnership, Securities,
L.P., so long as the Operating Partnership owns, directly or indirectly, a
majority of the outstanding non-preference equity interests thereof. For the
purposes of this definition, "voting equity securities" means equity securities
having voting power for the election of directors, whether at all times or only
so long as no senior class of security has such voting power by reason of any
contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Operating Partnership and
its Subsidiaries determined in accordance with GAAP (except that for the
purposes hereof, each Subsidiary of the Operating Partnership shall be treated
as if such Subsidiary were a subsidiary under GAAP), but excluding accounts
receivable and intangibles; provided, however, that the term "Total Assets"
shall not include any assets which have been deposited in trust to defease any
indebtedness or any other obligation (whether through a covenant defeasance or
otherwise) pursuant to the terms of such indebtedness or other obligation or the
terms of any instrument creating or evidencing it.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Operating Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (except that
for the purposes hereof, each Subsidiary of the Operating Partnership shall be
treated as if such Subsidiary were a subsidiary under GAAP), but excluding
accounts receivable and intangibles; provided, however, that the term "Total
Unencumbered Assets" shall not include any assets which have been deposited in
trust to defease any indebtedness or any other obligation (whether through a
covenant defeasance or otherwise) pursuant to the terms of such indebtedness or
other obligation or the terms of any instrument creating or evidencing it.
"Trust" means First Industrial Pass Through Asset Trust 1997-1
to be formed pursuant to the Trust Agreeement.
"Trust Agreement" means the Trust Agreement dated May 16, 1997
between the Operating Partnership and First Bank National Association, as
trustee.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of
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real estate assets of the Operating Partnership and its Subsidiaries on such
date, before depreciation and amortization, determined on a consolidated basis
in accordance with GAAP (except for the purposes hereof, each Subsidiary of the
Operating Partnership shall be treated as if such Subsidiary were a subsidiary
under GAAP).
"Unsecured Indebtedness" means Indebtedness which is not secured by
any Encumbrance upon any of the properties of the Operating Partnership or any
of its Subsidiaries.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
There shall be a series of Securities designated the "7 3/8% Notes
due 2011" (the "Notes").
SECTION 2.2. Limitation on aggregate Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$100,000,000, and, except as provided in this Section and in Section 306 of the
Indenture, the Operating Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Operating Partnership or authentication or delivery by the Trustee of
Notes under the circumstances contemplated by Sections 303, 304, 305, 306, 906,
1107 and 1305 of the Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of
Notes.
The Operating Partnership will pay interest on the Notes, from May
22, 1997 semi-annually in arrears on May 15 and November 15 of each year (each
an "Interest Payment Date"), commencing November 15, 1997 and on the Stated
Maturity (i) for the period from May 22, 1997 to (and including) May 15, 2004,
at the rate of 7 3/8% per annum and (ii) for the period from (and including) May
16, 2004 to the Stated Maturity, at the rate per annum to be reset on May 12,
2004 pursuant and subject
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to the terms and conditions of that Calculation Agency Agreement dated as of May
22, 1997, among the Operating Partnership, UBS Securities LLC, a limited
liability company organized under the laws of the State of New York, and Union
Bank of Switzerland, London branch. The amount of interest payable for any
period will be computed on the basis of a 360-day year comprised of twelve
30-day months. The amount of interest payable for any period shorter than a full
six month period for which interest is computed will be computed on the basis of
actual days elapsed per 30-day month. The interest so payable on any Note which
is not punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Indenture.
If any Interest Payment Date or Stated Maturity falls on a day that
is not a Business Day, the required payment shall be made on the next Business
Day as if it were made on the date such payment was due and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or Stated Maturity, as the case may be.
The Notes will mature on May 15, 2011.
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Operating Partnership will not, and will not permit any of
its Subsidiaries to, incur any Indebtedness, other than intercompany
Indebtedness (representing Indebtedness to which the only parties are the
Operating Partnership and any of its Subsidiaries (but only so long as such
Indebtedness is held solely by any of the Operating Partnership and any of its
Subsidiaries)), if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that for purposes hereof, each Subsidiary of the
Operating Partnership shall be treated as if such Subsidiary were a subsidiary
under GAAP) is greater than 60% of the sum of (without duplication) (i) the
Total Assets as of the end of the calendar quarter covered in the Operating
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee, or, if the Operating
Partnership has not yet filed
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its first quarterly report on Form 10-Q, as of December 31, 1996) prior to the
incurrence of such additional Indebtedness and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce
Indebtedness), by the Operating Partnership or any of its Subsidiaries since the
end of such calendar quarter, including those proceeds obtained in connection
with the incurrence of such additional Indebtedness.
(b) The Operating Partnership will not, and will not permit any of
its Subsidiaries to, incur Indebtedness secured by any Encumbrance upon any of
the property of the Operating Partnership or any of its Subsidiaries if,
immediately after giving effect to the incurrence of such additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness of the Operating Partnership
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
(except for the purposes hereof, each Subsidiary of the Operating Partnership
shall be treated as if such Subsidiary were a subsidiary under GAAP) which is
secured by any Encumbrance on property of the Operating Partnership or any of
its Subsidiaries is greater than 40% of the sum of (without duplication) (i) the
Total Assets as of the end of the calendar quarter covered in the Operating
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee, or if the Operating
Partnership has not yet filed its first Quarterly Report on Form 10-Q, as of
December 31, 1996) prior to the incurrence of such additional Indebtedness and
(ii) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Operating
Partnership or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness determined in accordance with GAAP (except for the
purposes hereof, each Subsidiary of the Operating Partnership shall be treated
as if such Subsidiary were a subsidiary under GAAP).
(c) The Operating Partnership and its Subsidiaries may not at any
time own Total Unencumbered Assets equal to less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except for the purposes hereof, each Subsidiary of
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the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
(d) The Operating Partnership will not, and will not permit any of
its Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Operating Partnership and its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Indebtedness, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Operating Partnership and its Subsidiaries since the first
day of such four-quarter period had been repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such period); (iii) in the case of
Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
calculation; and (iv) in the case of any acquisition or disposition by the
Operating Partnership or its Subsidiaries of any asset or group of assets since
the first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Indebtedness had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed
to be "incurred" by the Operating Partnership or a Subsidiary of the Operating
Partnership whenever the Operating Partnership or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof.
SECTION 2.5. Repayment At Option of Holders.
(a) Holders of the Notes may require the Operating Partnership to
repurchase all but not less than all of the Notes at a purchase price equal to
100% of the principal amount
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thereof on the Final Distribution Date in accordance with the terms of this
Section 2.5.
(b) The Operating Partnership covenants that, if the Holders of the
Notes shall require the Operating Partnership to repurchase the Notes in
accordance with this Section 2.5, the Operating Partnership will, at or prior to
2:00 p.m. on the Final Distribution Date, deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003 of the Indenture) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Notes are payable sufficient to pay the
principal of, and accrued interest on, all of the Notes outstanding on such
date.
(c) The Notes will contain a "Put Option to Elect Repayment" form on
the reverse of such Notes. In order for any Note to be repaid at the option of
the Holder, the Trustee must receive at the Place of Payment therefor specified
in the terms of such Note (or at such other place or places of which the
Operating Partnership shall notify the Holders of such Notes) not earlier than
fifteen days nor later than one day prior to the Final Distribution Date, the
Note together with the "Put Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing). Exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Operating Partnership.
(d) If the Notes shall have been surrendered as provided in this
Section 2.5, such Notes shall become due and payable and shall be paid by the
Operating Partnership on the Final Distribution Date and (unless the Operating
Partnership shall default in the payment of such Notes on such Final
Distribution Date) such Notes shall cease to bear interest. Upon surrender of
the Notes for repayment in accordance with the provisions hereof, the principal
amount of such Notes so to be repaid shall be paid by the Operating Partnership,
together with accrued interest, if any, to the Final Distribution Date.
If the principal amount of any Notes surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Final Distribution Date) shall, until
paid, bear interest from the Final Distribution Date at the rate of interest set
forth in such Note.
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SECTION 2.6. Places of Payment.
The Places of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Operating
Partnership in respect of the Notes and the Indenture may be served shall be in
(i) the Borough of Manhattan, The City of New York, New York, and the office or
agency for such purpose shall initially be located at First Trust National
Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 and (ii) the
City of Chicago, Illinois and the office or agency for such purpose shall
initially be located at First Trust National Association, 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the Notes not
represented by a Global Security will be made at the Corporate Trust Office
maintained for that purpose in the Borough of Manhattan, The City of New York,
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Operating Partnership, payments of
interest on the Notes may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
(ii) by wire transfer to an account maintained by the Person entitled thereto
located within the United States.
SECTION 2.8. Currency.
Principal and interest on the Notes shall be payable in United
States Dollars or in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
SECTION 2.9. Registered Securities; Global Form.
The Notes shall be issuable and transferable in fully registered
form as Registered Securities, without coupons.
SECTION 2.10. Form of Notes.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
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SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for
the Notes.
SECTION 2.12. Defeasance.
The provisions of Sections 1402 and 1403 of the Indenture, together
with the other provisions of Article Fourteen of the Indenture, shall be
applicable to the Notes.
SECTION 2.13. Provision of Financial Information.
Whether or not the Operating Partnership is subject to Section 13 or
15(d) of the Exchange Act, the Operating Partnership will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Operating Partnership would have
been required to file with the Commission pursuant to such Section 13 or 15(d)
if the Operating Partnership were so subject, such documents to be filed with
the Commission on or prior to the respective dates (the "Required Filing Dates")
by which the Operating Partnership would have been required so to file such
documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days
of each Required Filing Date if the Operating Partnership is not then subject to
Section 13 or 15(d) of the Exchange Act, (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register, without cost to such
Holders, copies of the annual reports and quarterly reports which the Operating
Partnership would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Operating Partnership were
subject to such Sections, and (ii) file with the Trustee copies of annual
reports, quarterly reports and other documents that the Operating Partnership
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Operating Partnership were subject to such
Sections and (y) if filing such documents by the Operating Partnership with the
Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective Holder.
SECTION 2.14. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1009 of the Indenture, the
Operating Partnership may omit in any particular
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instance to comply with any term, provision or condition set forth in Sections
1004 to 1008, inclusive, of the Indenture, with Sections 2.4 and 2.13 of this
Supplemental Indenture and with any other term, provision or condition with
respect to the Notes (except any such term, provision or condition which could
not be amended without the consent of all Holders of the Notes), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Notes, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition. Except to the extent so expressly waived, and until such
waiver shall become effective, the obligations of the Operating Partnership and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:______________________________
Name:
Title:
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:______________________________
Name:
Title:
By:______________________________
Name:
Title:
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Exhibit A
Supplemental Indenture
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST HEREIN MAY BE OFFERED, REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PELDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECUIRTY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A)
TO THE OPERATING PARTNERSHIP, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES
ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN
OPTION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
OPERATING PARTNERSHIP SUBJECT IN EACH OF THE FOREGOING CASES, TO AN APPROPRIATE
CERTIFICATE OF TRANSFER BEING COMPLETED AND DELIVERED BY THE TRANSFERROR. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
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Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: $100,000,000
FIRST INDUSTRIAL, L.P.
7 3/8% NOTE DUE 2011
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Operating Partnership", which term shall include any successor entity under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to First Trust National Association, as Trustee of the First Industrial
Pass-Through Asset Trust 1997-1, or registered assigns, upon presentation, the
principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000) on May 15, 2011, and
to pay interest on the outstanding principal amount thereon from May 22, 1997,
semi-annually in arrears on May 15 and November 15 in each year, commencing
November 15, 1997 and on the Stated Maturity, (i) for the period from May 22,
1997 to (and including) May 15, 2004 at the rate of 7 3/8% per annum and (ii)
for the period from (and including) May 16, 2004 to the Stated Maturity, at the
rate per annum to be reset on May 12, 2004, effective May 16, 2004, pursuant to
and subject to the terms of the Calculation Agency Agreement dated as of May 22,
1997, among the Operating Partnership, UBS Securities LLC, a limited liability
company organized under the laws of the State of New York, and Union Bank of
Switzerland, London Branch.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Stated Maturity will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest, which shall
be the May 1 or November 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date or Stated Maturity, as the case may
be. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and may
either be paid to the Person in whose name this Security is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
the
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Securities 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 the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. All payments of principal and interest in respect of
this Global Security will be made by the Operating Partnership in immediately
available funds.
Pursuant to the terms of that certain Confirmation dated May 22,
1997, and the agreements, provisions and definitions incorporated by reference
therein (the "Trust Call Option"), between First Industrial Pass-Through Asset
Trust 1997-1, a trust formed under the laws of the State of New York (the
"Trust"), and Union Bank of Switzerland, London branch (the "Callholder"), upon
delivery of irrevocable notice by the Callholder to the Trust on or before May
1, 2004 (or if that day is not a Business Day, the preceding Business Day), the
Callholder has the right to purchase the Notes from the Trust on May 15, 2004
(the "Settlement Date") (or, if that day is not a Business Day, on the first
following day that is a Business Day), for a purchase price equal to 100% of the
aggregate face amount thereof (the "Call Price"). Pursuant to that certain Trust
Agreement (the "Trust Agreement") dated as of May 16, 1997, between the
Operating Partnership and the Trust, the Trust has the obligation to require the
Operating Partnership to repurchase all of the Notes (the "Put Option") at a
purchase price equal to 100% of the aggregate face amount thereof on the
Settlement Date, if (i) the Trustee (as defined in the Trust Agreement,
initially First Bank National Association), has not received irrevocable notice
from the Callholder on or before May 1, 2004, that the Callholder intends to
exercise the Trust Call Option, or (ii) the Callholder fails to make payment of
the Call Price on the Business Day prior to the Settlement Date. Notwithstanding
the foregoing, the Trust Agreement may be amended under certain circumstances to
provide that the Trustee will not exercise the Put Option and to provide for
such other changes to the Trust Agreement as may be consequential thereto. In
the event that the Trust Call Option is exercised, then under the terms of the
Confirmation between the Operating Partnership and the Callholder dated May 22,
1997 (the "Operating Partnership Call Option"), the Operating Partnership has
the right and option, upon delivery by it of irrevocable notice to the
Callholder during the period from May 1, 2004, to and including May 6, 2004 (or
the first following day that is a Business Day), to purchase from the Callholder
all of the Callholder's right, title and interest and obligations in, to and
under the Trust Call Option in consideration for a payment to the Callholder on
the Settlement Date (or, if that day is not a Business Day, the first following
day that is a Business Day)
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in an amount calculated pursuant to the terms of the Operating Partnership Call
Option.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature of one of its authorized signatories, this
Security shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
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IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this
instrument to be duly executed.
Dated:
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By:_____________________________
Name:
Title:
[Seal]
Attest:
____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION, as Trustee
Dated:______________ By:_________________________
Authorized Signatory
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REVERSE OF SECURITY
Securities of this series are one of a duly authorized issue of
securities of the Operating Partnership (herein called the "Securities"), issued
and to be issued in one or more series under an Indenture, dated as of May 13,
1997, as supplemented by Supplemental Indenture No. 2, dated as of May 22, 1997
(as so supplemented, herein called the "Indenture"), between the Operating
Partnership and First Trust National Association (herein called 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 authenticated and
delivered. This Security is one of the series designated in the first page
thereof, limited in aggregate principal amount to $100,000,000.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Operating Partnership on this Security and (b)
certain restrictive covenants and the related defaults and Events of Default
applicable to the Operating Partnership, in each case, upon compliance by the
Operating Partnership with certain conditions set forth in the Indenture, which
provisions apply to this Security.
The Holder of this Security may require repayment of principal plus
accrued and unpaid interest on this Security, on May 15, 2004 in accordance with
the terms of the Indenture.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal amount of the Securities may be declared due
and payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at
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the time Outstanding a direction inconsistent with such request, and shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any interest on or after the respective due dates
expressed herein.
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 of each
series to be affected under the Indenture at any time by the Operating
Partnership and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of each series of
Securities then Outstanding affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Operating
Partnership with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Operating Partnership, which is absolute and unconditional, to pay the principal
of and interest on this Security at the times, place and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Operating Partnership in any Place of Payment where the
principal of and interest on this Security 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 his attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
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The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
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 Security for registration of
transfer, the Operating Partnership, the Trustee and any agent of the Operating
Partnership or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Operating Partnership, the Trustee nor any such agent
shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or
interest in respect of this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Issuer or the General Partner or of any successor, either directly or
through the Issuer or the General Partner or any successor, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Operating Partnership has caused "CUSIP"
numbers to be printed on the Securities of this series as a convenience to the
Holders of such Securities. No representation is made as to the correctness or
accuracy of such CUSIP numbers as printed on the
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Securities, and reliance may be placed only on the other identification numbers
printed hereon.
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================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
-----------------------------
------------------------------.................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
...............................................................................
the within Security of First Industrial, L.P. and hereby does irrevocably
constitute and appoint
..........................................................Attorney to transfer
said Security on the books of First Industrial, L.P. with full power of
substitution in the premises.
Dated: ................ ............................
............................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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[FORM OF PUT OPTION TO ELECT REPAYMENT]
Put Option to Elect Repayment
The undersigned hereby irrevocably requests and instructs First
Industrial, L.P. to repay the within Note, in whole but not in part, pursuant to
its terms at a price equal to the principal amount thereof, together with
interest to May 15, 2004, to the undersigned at __________________________
__________________________________________________________________________
(Please print or typewrite name and address of undersigned)
For this Note to be repaid First Industrial, L.P. must receive at
its office at 000 X. Xxxxxx Xx., Xxxxx 000, Xxxxxxx, XX 00000, or at such
additional place or places of which First Industrial, L.P. shall from time to
time notify the holder of the within Note, on or before May 14, 2004 this Note
with this "Put Option to Elect Repayment" form duly completed.
Dated:
______________________________________
Note: The signature to this Put Option
to Elect Repayment must correspond
with the name as written upon the face
of the Note in every particular
without alteration or enlargement or
any other change whatsoever.
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