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FIRST INDUSTRIAL, L.P.
Issuer
to
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
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Supplemental Indenture No. 5
Dated as of July 14, 1998
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$200,000,000
of
7.60% Notes due 2028
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SUPPLEMENTAL INDENTURE NO. 5, dated as of July 14, 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 U.S. BANK 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 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,
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
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
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banks in New York City or in Chicago are authorized or required by law,
regulation or executive order 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.
"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, Xxxxx 0000, 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
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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 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 any
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.
"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
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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 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 (whether a covenant defeasance or
otherwise) pursuant to the
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terms of such indebtedness or other obligation or the terms of any instrument
creating or evidencing it.
"Make-Whole Amount" means, in connection with any optional redemption of
any Note, the excess, if any, of (i) the aggregate present value as of the date
of such redemption of each dollar of principal being redeemed and the amount of
interest (exclusive of interest accrued to the date of redemption) that would
have been payable in respect of such dollar if such redemption had not been
made, determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of Redemption is given) from the date on which
such principal and interest would have been payable if such redemption had not
been made, over (ii) the aggregate principal amount of the Notes being redeemed.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one percent)
plus the arithmetic mean of the yields under the respective headings "This Week"
and "Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed. If no maturity exactly corresponds to such maturity,
yields for the two published maturities most closely corresponding to such
maturity shall be calculated pursuant to the immediately preceding sentence and
the Reinvestment Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding in each of such relevant periods to the nearest
month. For such purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination of the Make-Whole Amount, then
such other reasonably comparable index which shall be designated by the
Operating Partnership.
"Subsidiary" means, (i) with respect to any Person, any corporation,
partnership or other entity of which a major-
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ity 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.
"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.
"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 GAAP (except
for the purposes hereof, each Subsidiary of the Operat-
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ing 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 Notes.
There shall be a series of Securities designated the "7.60% Notes due 2028"
(the "Notes").
SECTION 2.2. Limitation on Aggregate
Principal Amount.
The aggregate principal amount of the Notes shall be limited to
$200,000,000, 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 Notes will bear interest at a rate of 7.60% per annum from July 14,
1998 or from the immediately preceding Interest Payment Date to which interest
has been paid, payable semi-annually in arrears on January 15 and July 15 of
each year, commencing January 15, 1999 (each, an "Interest Payment Date"), and,
if not otherwise an Interest Payment Date, at the Stated Maturity, to the
Persons in whose name the applicable Notes are registered in the Security
Register at the close of business on the preceding January 1 or July 1 (whether
or not a Business Day), as the case may be. Interest will be computed
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on the basis of a 360-day year comprised of twelve 30-day months. 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 July 15, 2028.
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 quar-
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ter, 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 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.
(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 that for the purposes hereof, each Subsidiary of 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
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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. Optional Redemption.
The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or in part (equal to $1,000 or an integral multiple
thereof), at a redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed plus accrued interest thereon to the Redemption Date
and (ii) the Make-Whole Amount, with respect to such Notes.
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
re-
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spect 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 U.S. Bank 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
U.S. Bank 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. The Notes shall be issued in the form of
one Global Security. The depository for the Notes shall be The Depository Trust
Company ("DTC"). The Notes shall not be issuable in definitive form except as
provided in Section 305 of the Indenture.
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. The provisions of Section 1403 of the Indenture shall apply to the
covenants set forth in Sections 2.4 and 2.13 of this Supplemental Indenture and
to those covenants specified in Section 1403 of the Indenture.
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
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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 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, as applicable), if before or after the time
for such compliance the Holders of at least a majority in principal amount of
all outstanding Notes, as applicable, 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
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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: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Sr. Vice President-
Capital Markets
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ X. Xxxxxxxxxx
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Name: X. Xxxxxxxxxx
Title: Vice President
By: /s/X.X. Xxxx, Xx.
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Name: X.X. Xxxx, Xx.
Title: Vice President
Exhibit A to
Supplemental Indenture
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, to the
Operating Partnership (as defined below) 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, 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.
This Security is a Global Security within the meaning set forth in the Indenture
hereinafter referred to and is registered in the name of DTC or a nominee of
DTC. This Security is exchangeable for Securities registered in the name of a
person other than DTC or its nominee only in the limited circumstances described
in the Indenture, and may not be transferred except as a whole by DTC to a
nominee of DTC or another nominee of DTC or by DTC or its nominee to a successor
Depository or its nominee.
Registered No. PRINCIPAL AMOUNT
CUSIP No.: 00000XXX0 $200,000,000
FIRST INDUSTRIAL, L.P.
7.60% NOTE DUE 2028
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 CEDE &
CO., or registered assigns, upon presentation, the principal sum of DOLLARS on
July 15, 2028 and to pay interest on the outstanding principal amount thereon
from July 14, 1998, or from the immediately preceding Interest Payment Date to
which interest has been paid or duly provided for, semi-annually in arrears on
January 15 and July 15 in each year, commencing January 15, 1999, at the rate of
7.60% per annum, until the entire principal hereof is paid or made available for
payment. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security is registered at the close of busi-
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ness on the Regular Record Date for such interest which shall be the December 15
or June 15 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. 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 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, premium or Make-Whole Amount, if any, and interest in respect of this
Global Security will be made by the Operating Partnership in immediately
available funds.
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 under its corporate seal.
Dated:
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust,
Inc., its general partner
By:_____________________________
Name:
Title:
[Seal]
Attest:
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Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. BANK 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. 5, dated as of July 14, 1998 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank 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 $200,000,000.
Securities of this series may be redeemed at any time at the option of the
Operating Partnership, in whole or in part, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Securities.
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the Redemption Date, all as provided
in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
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.
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.
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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 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
Make-Whole Amount, if any) 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
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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 Make-Whole Amount, if any) 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.
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, premium or
Make-Whole Amount, if any, 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.
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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 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
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............................................
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...............................................................................
(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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