EXHIBIT 4.1
-------------------------------------------------------------------------------
FIRST INDUSTRIAL, L.P.
Issuer
to
FIRST TRUST NATIONAL ASSOCIATION
Trustee
-------------------------
Supplemental Indenture No. 4
Dated as of March 26, 1998.
-------------------------
$100,000,000
of
6 1/2% Dealer remarketable securities due April 5, 2011
-------------------------------------------------------------------------------
SUPPLEMENTAL INDENTURE NO. 4, dated as of March 26, 1998 (the "Supplemental
Indenture"), between FIRST INDUSTRIAL, L.P., a limited partnership duly
organized and existing under the laws of the State of Delaware (herein called
the "Operating Partnership"), and First Trust National Association, a national
organization duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership has heretofore delivered to the Trustee an
Indenture dated as of May 13, 1997 (the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit incorporated by reference to the Operating
Partnership's Registration Statement on Form S-3 (Registration No. 333-43641),
providing for the issuance from time to time of Debt Securities of the Operating
Partnership (the "Securities").
Section 301 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides for the Operating Partnership and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of the
series of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes or of either series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means (i) the aggregate interest
expense for such period in respect of, and the amortization during such period
of any original issue discount of, Indebtedness of the Operating Partnership and
its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock and (ii) so long as First
Securities, L.P. ("Securities, L.P.") is a Subsidiary of the Operating
Partnership, distributions which are payable during such period in respect of
any preference equity interests of Securities, L.P.
"Base Rate" means 5.67%.
"Business Day" means any day, other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York or The City of Chicago are
authorized or obligated by law, executive order or governmental decree to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated maturity on such Determination
Date) comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500, adjusted to reflect
settlement on the Remarketing Date if prices quoted on Telerate Page 500 are for
settlement on any date other than the Remarketing Date, or (b) if such page (or
any successor page) is not displayed or does not contain such offer prices on
such Business Day, then (i) if the Remarketing Dealer obtains four or five
Reference Treasury Dealer Quotations, the average of such Reference Treasury
Dealer Quotations for such Remarketing Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations (unless there is more than
one highest or lowest quotation, in which case only one such highest and/or
lowest quotation shall be excluded), or (ii) if the Remarketing Dealer obtains
fewer than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. The Remar-
2
keting Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Operating Partnership and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Indebtedness of the
Operating Partnership and its Subsidiaries, (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income, (iii) amortization
of debt discount, (iv) provisions for gains and losses on properties and
property depreciation and amortization, (v) the effect of any noncash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period, (vi) amortization of deferred charges and (vii)
interest income related to investments irrevocably deposited with an agent of
the Operating Partnership or any of its Subsidiaries, as the case may be, for
the purpose of defeasing any indebtedness or any other obligation (whether
through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at One Illinois Center, 000 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 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 into or exchangeable or exercisable
for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity Date of the Drs.
"Determination Date" has the meaning specified in Section 2.6(a) hereof.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y) maturing on the Stated
Maturity Date and (z) bearing interest from the Remarketing Date, payable
semi-annually (assuming a 360-day year consisting of twelve 30-day months) on
the interest payment dates of the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"Drs." has the meaning specified in Section 2.1 hereof.
"DTC" means The Depository Trust Company or its successor.
3
"Earnings from Operations" for any period means net income excluding gains
and losses on sales of investments, extraordinary items and property valuation
losses, net as reflected in the financial statements of the Operating
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP (except that for purposes hereof, each Subsidiary
of the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
"Encumbrance" means any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind; provided, however, that the term "Encumbrance"
shall not include any mortgage, lien, charge, pledge or security interest
securing any indebtedness or any other obligation which has been defeased
(through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used in the United
States applied on a consistent basis as in effect from time to time; provided
that solely for purposes of any calculation required by the financial covenants
contained herein, "GAAP" shall mean generally accepted accounting principles as
used in the United States on the date hereof, applied on a consistent basis.
"Indebtedness" of the Operating Partnership or any of its Subsidiaries
means any indebtedness of the Operating Partnership or any of its Subsidiaries,
whether or not contingent, in respect of (a) borrowed money or evidenced by
bonds, notes, debentures or similar instruments whether or not such indebtedness
is secured by any Encumbrance existing on property owned by the Operating
Partnership or any of its Subsidiaries, (b) indebtedness for borrowed money of a
Person other than the Operating Partnership or a Subsidiary of the Operating
Partnership which is secured by any Encumbrance existing on property owned by
the Operating Partnership or any of its Subsidiaries, to the extent of the
lesser of (x) the amount of indebtedness so secured and (y) the fair market
value of the property subject to such Encumbrance, (c) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, except any such balance that
constitutes an accrued expense or trade payable, and all conditional sale
obligations or obligations under any title retention agreement, (d) the
principal amount of all obligations of the Operating Partnership or any of its
Subsidiaries with respect to redemption, repayment or other repurchase of any
Disqualified Stock, (e) any lease of property by the Operating Partnership or
any of its Subsidiaries as lessee which is reflected on the Operating
Partnership's consolidated balance sheet determined in accordance with GAAP
(except that for the purposes hereof, each Subsidiary of the Operating
Partnership
4
shall be treated as if such Subsidiary were a subsidiary under GAAP) as a
capitalized lease, or (f) interest rate swaps, caps or similar agreements and
foreign exchange contracts, currency swaps or similar agreements, and (ii) the
liquidation preference on any issued and outstanding preferred equity interests
of Securities, L.P., to the extent, in the case of items of indebtedness under
(i)(a) through (c) above, that any such items (other than letters of credit)
would appear as a liability on the Operating Partnership's consolidated balance
sheet determined in accordance with GAAP (except that for the purposes hereof,
each Subsidiary of the Operating Partnership shall be treated as if such
Subsidiary were a subsidiary under GAAP), and also includes, to the extent not
otherwise included, any obligation by the Operating Partnership or any of its
Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
Indebtedness of another Person (other than the Operating Partnership or any of
its Subsidiaries) (it being understood that Indebtedness shall be deemed to be
incurred by the Operating Partnership or any of its Subsidiaries whenever the
Operating Partnership or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof) provided, however, that the term
"Indebtedness" shall not include any indebtedness or any other obligation that
has been defeased (through a covenant defeasance or otherwise) pursuant to the
terms of such indebtedness or other obligation or the terms of any instrument
creating or evidencing it.
"Interest Payment Date" shall have the meaning set forth in Section 2.3.
"Notification Date" shall have the meaning specified in Section 2.5(a).
"Principal Repayment Date" means the date on which all principal and
interest in respect of the Drs. would have been payable to a holder if such
redemption had not been made, namely (i) in the case of a redemption of Drs. at
any time prior to the Remarketing Date, the Remarketing Date, and (ii) in the
case of a redemption of Drs. at any time after the Remarketing Date, the Stated
Maturity Date.
"Reference Corporate Dealer" means X.X. Xxxxxx Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Operating
Partnership acceptable to X.X. Xxxxxx Securities Inc. and the Operating
Partnership.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) for settlement
on the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the Determination
Date.
"Regular Record Date" shall have the meaning specified in Section 2.3.
"Remarketing Agreement" means the Remarketing Agreement dated as of March
31, 1998 between the Operating Partnership and X.X. Xxxxxx Securities Inc., as
Remarketing Dealer, as such agreement may be amended from time to time.
"Remarketing Date" shall have the meaning specified in Section 2.3 hereof.
"Remarketing Dealer" means X.X. Xxxxxx Securities Inc. or its successor and
assigns under the Remarketing Agreement.
5
"Stated Maturity Date" shall have the meaning specified in Section 2.3.
"Subsidiary" means, (i) with respect to any Person, corporation,
partnership or other entity of which a majority of (a) the voting power of the
voting equity securities or (b) the outstanding equity interests of which are
owned, directly or indirectly, by such Person and (ii) with respect to the
Operating Partnership, Securities, L.P., so long as the Operating Partnership
owns, directly or indirectly, a majority of the outstanding non-preference
equity interests thereof. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Xxxxx Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price specified in
clause (a) of the definition of Comparable Treasury Price, as may replace Dow
Xxxxx Markets Limited.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Operating Partnership and its
Subsidiaries determined in accordance with GAAP (except that for the purposes
hereof, each Subsidiary of the Operating Partnership shall be treated as if such
Subsidiary were a subsidiary under GAAP), but excluding accounts receivable and
intangibles; provided, however, that the term "Total Assets" shall not include
any assets which have been deposited in trust to defease any indebtedness or any
other obligation (whether through a covenant defeasance or otherwise) pursuant
to the terms of such indebtedness or other obligation or the terms of any
instrument creating or evidencing it.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Operating Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (except that
for the purposes hereof, each Subsidiary of the Operating Partnership shall be
treated as if such Subsidiary were a subsidiary under GAAP), but excluding
accounts receivable and intangibles; provided, however, that the term "Total
Unencumbered Assets" shall not include any assets which have been deposited in
trust to defease any indebtedness or any other obligation (whether through a
covenant defeasance or otherwise) pursuant to the terms of such indebtedness or
other obligation or the terms of any instrument creating or evidencing it.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Operating
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with
6
GAAP (except for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under
GAAP).
"Unsecured Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Operating Partnership or any of
its Subsidiaries.
ARTICLE TWO
THE SERIES OF SECURITIES
SECTION 2.1. Title of the Securities.
There shall be Securities designated the "6 1/2% Dealer remarketable
securities due April 5, 2011" (the "Drs.")
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Drs. shall be limited to
$100,000,000, and, except as provided in this Section and in Section 306 of the
Indenture, the Operating Partnership shall not execute and the Trustee shall not
authenticate or deliver Drs. in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Drs., is intended to or shall limit execution by the
Operating Partnership or authentication or delivery by the Trustee of Drs. under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Drs.
The Drs. will bear interest from March 31, 1998 or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on April 5 and October 5 of each year,
commencing October 5, 1998 (each, an "Interest Payment Date"), to the Persons in
whose name such Drs. are registered on the fifteenth calendar (whether or not a
Business Day), immediately preceding the related Interest Payment Date (each, a
"Regular Record Date"). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The interest so payable on any Drs. which is
not punctually paid or duly provided for on any Interest Payment Date shall be
payable to the Person in whose name such Drs. is registered on the relevant
Regular Record Date, at the close of business by notice by or on behalf of the
Operating Partnership to the holders of the Drs., mailed by first class mail not
less than 15 days prior to the Regular Record Date to their last address as they
shall appear upon the Securities Register not less than five days preceding the
date of payment. Payment may be made by check mailed to the holder's address as
it appears on the Securities Register.
The Drs. will bear interest at the rate of 6 1/2% per annum to April 5,
2001 (the "Remarketing Date"). If pursuant to the Remarketing Agreement, the
Remarketing Dealer elects to
7
remarket the Drs., then except as otherwise provided (i) the Drs. shall be
subject to mandatory tender to the Remarketing Dealer at 100% of the principal
amount thereof for remarketing on the Remarketing Date subject to the terms and
conditions provided for in Section 2.5 herein and (ii) on and after the
Remarketing Date, the Drs. shall bear interest at a rate determined by the
Remarketing Dealer in accordance with the procedures set forth in Section 2.6
herein.
If any Interest Payment Date or the Stated Maturity Date falls on a day
that is not a Business Day, the required payment shall be made on the next
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date, as the case may be.
The Drs. will mature on April 5, 2011 (the "Stated Maturity Date").
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness, other than intercompany Indebtedness
(representing Indebtedness to which the only parties are the Operating
Partnership and any of its Subsidiaries (but only so long as such Indebtedness
is held solely by any of the Operating Partnership and any of its
Subsidiaries)), if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that for purposes hereof, each Subsidiary of the
Operating Partnership shall be treated as if such Subsidiary were a subsidiary
under GAAP) is greater than 60% of the sum of (without duplication) (i) the
Total Assets as of the end of the calendar quarter covered in the Operating
Partnership's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee) prior to the incurrence
of such additional Indebtedness and (ii) the purchase price of any real estate
assets or mortgages receivable acquired, and the amount of any securities
offering proceeds received (to the extent such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Indebtedness), by
the Operating Partnership or any of its Subsidiaries since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(b) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Operating Partnership and its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Indebtedness, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Operating Partnership and its Subsidiaries since the first
day of such four-quarter period had been repaid or retired at the beginning of
such period (except that, in making such computation, the amount of In-
8
debtedness under any revolving credit facility shall be computed based upon the
average daily balance of such Indebtedness during such period); (iii) in the
case of Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
calculation; and (iv) in the case of any acquisition or disposition by the
Operating Partnership or its Subsidiaries of any asset or group of assets since
the first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Indebtedness had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
(c) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur Indebtedness secured by any Encumbrance upon any of the
property of the Operating Partnership or any of its Subsidiaries if, immediately
after giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Operating Partnership and its Subsidiaries on a
consolidated basis determined in accordance with GAAP (except that for the
purposes hereof, each Subsidiary of the Operating Partnership shall be treated
as if such Subsidiary were a subsidiary under GAAP) which is secured by any
Encumbrance on property of the Operating Partnership or any of its Subsidiaries
is greater than 40% of the sum of (without duplication) (i) the Total Assets as
of the end of the calendar quarter covered in the Operating Partnership's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Exchange Act, with the Trustee) prior to the incurrence of such additional
Indebtedness and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Operating
Partnership or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(d) The Operating Partnership and its Subsidiaries may not at any time own
Total Unencumbered Assets equal to or less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that for the purposes hereof, each Subsidiary of
the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to be
"incurred" by the Operating Partnership or a Subsidiary of the Operating
Partnership whenever the Operating Partnership or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof.
9
SECTION 2.5. Mandatory Tender on Remarketing Date; Purchase and Settlement.
(a) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Operating Partnership and the Trustee as to whether it elects to purchase
all of the outstanding Drs. on the Remarketing Date. If, and only if, the
Remarketing Dealer so elects, the Drs. shall be subject to mandatory tender to
the Remarketing Dealer for purchase and remarketing on the Remarketing Date,
upon the terms and subject to the conditions described herein and in the
Remarketing Agreement. The purchase price of the Drs. shall be equal to 100% of
the principal amount thereof. No holder or beneficial owner of the Drs. shall
have any rights or claims under the Remarketing Agreement or against the
Operating Partnership or the Remarketing Dealer as a result of the Remarketing
Dealer not purchasing such Drs.
(b) The tender and settlement procedures with respect to the Drs. set forth
in the Remarketing Agreement shall be subject to modification, without the
consent of the holders of the Drs., to the extent required by DTC or, if the
book-entry system is no longer available for the Drs. at the time of the
remarketing, to the extent required to facilitate the tendering and remarketing
of Drs. in certificated form. In addition, the Remarketing Dealer may modify the
settlement procedures without the consent of the holders of the Drs. in order to
facilitate the settlement process.
(c) The Operating Partnership hereby agrees with the Trustee and the
holders of Drs. that (i) at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Drs. in book-entry
form and (ii) it waives any discretionary right that it otherwise may have under
the Indenture to cause the Drs. to be issued in certificated form.
SECTION 2.6. Determination of Interest Rate to Maturity.
(a) The Remarketing Dealer shall determine the interest rate the Drs. will
bear from the Remarketing Date to the Stated Maturity Date (the "Interest Rate
to Maturity") on the third Business Day immediately preceding the Remarketing
Date (the "Determination Date") by soliciting by 3:30 p.m., New York City time,
the Reference Corporate Dealers for firm, committed bids to purchase all
outstanding Drs. at the Dollar Price, and by selecting the lowest such firm,
committed bid (regardless of whether each of the Reference Corporate Dealers
actually submits a bid). Each bid shall be expressed in terms of the Interest
Rate to Maturity that the Drs. would bear (quoted as a spread over the Base
Rate) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
10
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Operating Partnership and the
Trustee. The Remarketing Dealer shall have the discretion to select the time at
which the Comparable Treasury Price is determined on the Determination Date.
(b) The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to this Section 2.6. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
(c) If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Operating Partnership, the Trustee and DTC by
telephone, confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
SECTION 2.7. Repurchase.
If the Remarketing Dealer (i) does not elect to exercise its right to a
mandatory tender of the Drs., (ii) shall not have received by the required time
on the Determination Date any firm, committed bids to purchase all of the Drs.
in accordance with Section 2.6 of this Supplemental Indenture or (iii) for any
other reason does not purchase all of the Drs. on the Remarketing Date, then the
Operating Partnership shall repurchase on the Remarketing Date, at a price equal
to 100% of the principal amount of the Drs. plus all accrued interest, if any,
on the Drs. to (but excluding) the Remarketing Date, any Drs. that have not been
purchased by the Remarketing Dealer on the Remarketing Date.
SECTION 2.8. Redemption.
If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date, the Operating Partnership shall have the right to redeem the
Drs., in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at a redemption price equal to the greater of (i) 100% of the aggregate
principal amount of the Drs. and (ii) the Dollar Price, by giving written notice
of such redemption to the Remarketing Dealer
(x) no later than the Business Day immediately prior to the
Determination Date or
(y) if fewer than three Reference Corporate Dealers submit timely
firm, committed bids to the Remarketing Dealer on the Determination Date in
accordance with Section 2.6 of this Supplemental Indenture, immediately
after the deadline set by the Remarketing Dealer for receiving such bids
has passed.
11
In either such case, the Operating Partnership shall pay such redemption
price for the Drs. in same-day funds by wire transfer on the Remarketing Date to
an account designated by the Remarketing Dealer.
SECTION 2.9. Places of Payment.
The Places of Payment where the Drs. may be presented or surrendered for
payment, where the Drs. may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Operating Partnership in
respect of the Drs. and the Indenture may be served shall be in (i) the Borough
of Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be located at First Trust National Association, 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, One Illinois Center, 000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
SECTION 2.10. Method of Payment.
Payment of the principal of and interest on the Drs. will be made at the
office or agency of the Operating Partnership maintained for that purpose in the
Borough of Manhattan, The City of New York (which shall initially be an office
or agency of the Trustee), in immediately available funds, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Operating Partnership, payments of principal and interest on the
Drs. (other than payments of principal and interest due on the Stated Maturity
Date) may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within
the United States.
SECTION 2.11. Registered Securities; Global Form.
The Drs. shall be issuable and transferable in fully registered form as
Registered Securities, without coupons in denominations of $1,000 and any
integral multiple thereof. The Drs. shall each be issued in the form of one or
more permanent Global Securities. The depository for the Drs. shall be DTC. The
Drs. shall not be issuable in definitive form except as provided in Section 305
of the Indenture. The Drs. shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.12. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the
Drs.
SECTION 2.13. Defeasance.
The provisions of Sections 1402 and 1403 of the Indenture, together with
the other provisions of Article Fourteen of the Indenture, shall be applicable
to the Drs. The provisions of Section 1403 of the Indenture shall apply to the
covenants set forth in Sections 2.4 and 2.14 of this Supplemental Indenture.
12
SECTION 2.14. Provision of Financial Information.
Whether or not the Operating Partnership is subject to Section 13 or 15(d)
of the Exchange Act, the Operating Partnership will, to the extent permitted
under the Exchange Act, file with the Commission the annual reports, quarterly
reports and other documents which the Operating Partnership would have been
required to file with the Commission pursuant to such Section 13 or 15(d) if the
Operating Partnership were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Operating Partnership would have been required so to file such
documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) if the Operating Partnership is not then subject to
Section 13 or 15(d) of the Exchange Act, transmit by mail to all Holders of the
Drs., as their names and addresses appear in the Security Register, without cost
to such Holders, copies of the annual reports and quarterly reports which the
Operating Partnership would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the Operating Partnership
were subject to such Sections and (ii) file with the Trustee copies of annual
reports, quarterly reports and other documents which the Operating Partnership
is required to file with the Commission or would have been required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Operating Partnership were subject to such Sections and (y) if filing such
documents by the Operating Partnership with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 2.15. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1009 of the Indenture, the
Operating Partnership may omit to comply with any term, provision or condition
set forth in Sections 1004 to 1008, inclusive, of the Indenture, with Sections
2.4 and 2.14 of this Supplemental Indenture and with any other term, provision
or condition with respect to the Drs. (except any such term, provision or
condition which could not be amended without the consent of all Holders of the
Drs. ), if before or after the time for such compliance the Holders of at least
a majority in principal amount of all outstanding Drs., by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Operating Partnership
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
13
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture continues in
full force and effect and is in all respects confirmed and preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Drs. shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer, Treasurer
and Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ X. Xxxxxxxxxx
------------------------------------------
Name: X. Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
EXHIBIT A
A-1
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
FIRST INDUSTRIAL, L.P.
6 1/2% Dealer remarketable securitySM ("Xxx.XX")
due April 5, 2011
No. 1
$100,000,000 CUSIP: 322055RAD9
First Industrial, L.P., a Delaware limited partnership (hereinafter called
the "Company"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of ONE HUNDRED MILLION U.S. DOLLARS on
April 5, 2011, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, State of New York, in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest, semi-annually on
April 5 and October 5 of each year (each, an "Interest Payment Date"), on said
principal sum at the rate per annum specified below, at such office or agency,
in like coin or currency, from the April 5 or October 5, as the case may be, to
which interest on the Securities has been paid preceding the date hereof (unless
the date hereof is an April 5 or an October 5 to which interest has been paid,
in which case from the date hereof, or unless the date hereof is prior to any
interest having been paid, in which case from March 31, 1998) until payment of
said principal sum has been made or duly provided for. If the Company shall
default in the payment of interest when due on such April 5 or October 5, then
this Security shall bear interest from the next preceding date to which interest
has been paid, or, if no interest has been paid, from March 31, 1998. The
interest so payable on any April 5 or October 5 shall be paid to the person in
whose name this Security shall be registered at the close of business on the
fifteenth calendar day (whether or not a Business Day) immediately preceding the
related Interest Payment Date (each, a "Regular Record Date"). For purposes of
this Security, "Business Day" means any day
----------
SM "Dealer remarketable security" and "Drs." are service marks of X.X. Xxxxxx
Securities Inc.
other than a Saturday, a Sunday or a day on which banking institutions in the
City of New York or the City of Chicago are authorized or obligated by law,
regulation or executive order to be closed.
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. The Company may
pay interest by check mailed to the holder's address as it appears on the
Security register.
The rate of interest on this Security shall be 6 1/2% per annum to April 5,
2001 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of March 31, 1998 (the
"Remarketing Agreement") between X.X. Xxxxxx Securities Inc., as Remarketing
Dealer (the "Remarketing Dealer"), and the Company, then, except as otherwise
set forth on the reverse hereof, (i) this Security shall be subject to mandatory
tender to the Remarketing Dealer for remarketing on the Remarketing Date, on the
terms and subject to the conditions set forth on the reverse hereof, and (ii) on
and after the Remarketing Date, this Security shall bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
in Section 4 on the reverse hereof (the "Interest Rate to Maturity"). If the
Remarketing Dealer does not remarket the Securities pursuant to the Remarketing
Agreement, this Security shall be subject to mandatory tender to the Company for
repurchase on the Remarketing Date, on the terms and subject to the conditions
set forth on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
-2-
IN WITNESS WHEREOF, First Industrial, L.P. has caused this Security to be
signed by its duly authorized officers and has caused its corporate seal to be
affixed hereunto.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., its
general partner
By:
----------------------------------------
Title:
Attest:
__________________________________
Secretary
Certificate of Authentication
This is one of the Securities of the series designated therein and described in
the within mentioned Indenture.
U.S. Bank Trust National Association
f/k/a First Trust National Association
as Trustee
By:
------------------------------------------
Authorized Signatory
First Industrial, L.P.
6 1/2% Dealer remarketable securitySM ("Xxx.XX")
due April 5, 2011
1. Indenture. (a) This Security is one of the duly authorized issue of debt
securities of the Company (herein referred to as the "Debt Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture dated as of May 13, 1997 (as supplemented, including the
Supplemental Indenture dated as of March 26, 1998 in respect of this series of
Securities, the "Indenture") between the Company and First Trust National
Association, as Trustee (herein referred to as the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders (the words
"holders", "holder", "Securityholders" or "Securityholder" mean the registered
holder(s)) of the Debt Securities.
(b) The Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
denominated in different currencies, may be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, may be
subject to additional covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as the
6 1/2% Dealer remarketable securitiesSM ("Xxx.XX") due April 5, 2011 of the
Company and such series is limited in aggregate principal amount to
$100,000,000. References herein to "Securities" or "Drs." shall mean the Debt
Securities of said series.
(c) All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five Business Days prior to the Remarketing Date
(the "Notification Date"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all (but not less than all) of
the outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of any Securities shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
such Securities.
R-1
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC or, if the book-entry system is no
longer available for the Securities at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of Securities in
certificated form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in
book-entry form and (ii) it waives any discretionary right that it otherwise may
have under the Indenture to cause the Securities to be issued in certificated
form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Drs. will bear from the
Remarketing Date to the Stated Maturity Date (the "Interest Rate to Maturity")
on the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all outstanding
Drs. at the Dollar Price, and by selecting the lowest such firm, committed bid
(regardless of whether each of the Reference Corporate Dealers actually submit
bids). Each bid shall be expressed in terms of the Interest Rate to Maturity
that the Drs. would bear (quoted as a spread over 5.67% per annum (the "Base
Rate")) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date; and
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. The Remarketing Dealer
shall have the discretion to select the time at which the Interest Rate to
Maturity is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account (at a price equal to the lowest
firm, committed bid, as described above) or (ii) sell the Drs. to the Reference
Corporate Dealer submitting the low-
R-2
est firm, committed, bid. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date.
5. Repurchase. If the Remarketing Dealer for any reason does not purchase
all of the Drs. on the Remarketing Date, then all holders will be required to
tender, and the Company shall repurchase, on the Remarketing Date, at a price
equal to 100% of the principal amount of the Drs. plus all accrued interest, if
any, on the Drs. to (but excluding) the Remarketing Date, all Drs. that have not
been purchased by the Remarketing Dealer on the Remarketing Date.
6. Redemption. If the Remarketing Dealer has elected to remarket the Drs.
on the Remarketing Date, the Company shall have the right to redeem the Drs., in
whole but not in part, from the Remarketing Dealer on the Remarketing Date at a
redemption price equal to the greater of (i) 100% of the aggregate principal
amount of the Drs. and (ii) the Dollar Price, by giving written notice of such
redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
7. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of indebtedness it may incur, a covenant compelling it to disclose
certain financial information, covenants requiring it to maintain its material
properties and adequate insurance thereon, and a covenant requiring it to pay or
discharge all taxes, all as more fully described in the Indenture. All of such
covenants are subject to the covenant defeasance procedures outlined in the
Indenture.
8. Effect of Event of Default. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such decla-
R-3
ration shall become, due and payable, in the manner, with the effect and subject
to the conditions provided in the Indenture.
9. Tax Treatment; Agreement to Tender. The Company and the holders of this
Security (and each holder of a beneficial interest herein) by accepting this
Security, agree to treat the Drs. as fixed rate debt instruments that mature on
the Remarketing Date for United States Federal income tax purposes. Furthermore,
each holder of this Security (and each holder of a beneficial interest herein)
irrevocably agrees that this Security shall automatically be tendered on the
Remarketing Date (a) to the Remarketing Dealer if the Remarketing Dealer elects
to remarket the Securities on the terms and conditions set forth herein or (b)
to the Company if the Remarketing Dealer does not remarket the Securities on the
terms and conditions set forth herein.
10. Amendments and Waivers. Modifications and amendments of the Indenture
will be permitted to be made only with the consent of the holders of not less
than a majority in principal amount of all outstanding Debt Securities issued
under the Indenture that are affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the holder of each such Debt Security affected thereby, (a) change
the stated maturity of the principal of, or any installment of interest (or
premium or Make-Whole Amount, if any) on, any such Debt Security; (b) reduce the
principal of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder of any such
Debt Security; (c) change the place of payment, or the coin or currency, for
payment of principal of, premium or Make-Whole Amount, if any, or interest on
any such Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities of any series
necessary to modify or amend the Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; (f) change the
currency or currency unit in which any Debt Security or any premium or interest
thereon is payable; or (g) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive covenants of the applicable Indenture.
R-4
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to evidence the succession of
another person to the Company as obligor under the Indenture; (b) to add to the
covenants of the Company for the benefit of the holders of all or any series of
Debt Securities or to surrender any right or power conferred upon the Company in
the Indenture; (c) to add events of default for the benefit of the holders of
all or any series of Debt Securities; (d) to add or change any provisions of the
Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided that such action shall not adversely
affect the interests of the holders of the Debt Securities of any series in any
material respect; (e) to change or eliminate any provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there are no Debt Securities outstanding of any series created prior thereto
which are entitled to the benefit of such provision; (f) to secure the Debt
Securities; (g) to establish the form or terms of Debt Securities of any series;
(h) to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under the Indenture by more than one
Trustee; (i) to cure any ambiguity, defect or inconsistency in the Indenture,
provided that such action shall not adversely affect the interests of holders of
Debt Securities of any series issued under the Indenture; or (j) to supplement
any of the provisions of the Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities,
provided that such action shall not adversely affect the interests of the
holders of the outstanding Debt Securities of any series in any material
respect.
11. Denominations; Transfer. (a) The Securities are issuable in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof.
(b) A certificate in global form representing all or a portion of the
Securities may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such Securities or a nominee of
such successor Depositary.
12. No Liability of Certain Persons. No past, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
13. Governing Law. The laws of the State of New York govern the Indenture
and this Security.
R-5
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
PLEASE INSERT TAXPAYER IDENTIFICATION
NUMBER OF ASSIGNEE
________________________________________
________________________________________
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
the within Security of First Industrial, L.P. and all rights thereunder and
hereby irrevocably constitutes and appoints ______________________ attorney to
transfer said Security on the books of the Company, with full power of
substitution in the premises
_________________________________
Dated: Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE
SIGNATURE(S) SHOULD BE GUARANTEED BY A COMMERCIAL BANK OR TRUST
COMPANY, A MEMBER ORGANIZATION OF A NATIONAL STOCK EXCHANGE OR BY SUCH
OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH AND ACCEPTABLE TO THE
TRANSFER AGENT.
R-6
