As filed with the Securities and Exchange Commission on July 6, 2001
Registration No. 333-57992
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST INDUSTRIAL REALTY TRUST, INC. FIRST INDUSTRIAL, L.P.
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its
charter)
Maryland Delaware
(State or other jurisdiction of incorporation or (State or other jurisdiction of incorporation or
organization) organization)
36-3935116 36-3924586
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification Number)
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive offices)
Michael W. Brennan
President and Chief Executive Officer
First Industrial Realty Trust, Inc.
311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Gerald S. Tanenbaum, Esq.
Roger Andrus, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: / /
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a combined prospectus that also relates to $589,200,000 of
Common Stock, Preferred Stock and Depositary Shares of First Industrial Realty
Trust, Inc. and $100,000,000 of Debt Securities of First Industrial, L.P.
registered on Form S-3, File No. 333-43641, which was declared effective on
January 27, 1998 (the "Previously Registered Securities"), which have not been
offered or sold as of the date of the filing of this Registration Statement.
This Registration Statement constitutes Post-Effective Amendment No. 1 to
Registration Statement File No. 333-43641, pursuant to which the total amount of
unsold Previously Registered Securities, registered on Registration Statement
File No. 333-43641, may be offered and sold by the Company and the Operating
Partnership.
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PROSPECTUS
$1,089,200,000
FIRST INDUSTRIAL REALTY TRUST, INC.
and
FIRST INDUSTRIAL, L.P.
First Industrial Realty Trust, Inc. may offer the following securities for
sale through this prospectus from time to time:
o shares of common stock;
o shares of preferred stock; and
o shares of preferred stock represented by depositary shares.
First Industrial, L.P., the operating partnership of First Industrial
Realty Trust, Inc., may offer up to $400,000,000 of unsecured non-convertible
investment grade debt securities for sale through this prospectus from time to
time.
We will provide the specific terms of the securities that we are offering
in one or more supplements to this prospectus. Any supplement may also add,
update or change information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with the additional
information described under "Where You Can Find More Information" before
investing in our securities. The aggregate of the offering prices of securities
covered by this prospectus will not exceed $1,089,200,000.
We may sell offered securities through agents, to or through underwriters
or through dealers, directly by us to purchasers or through a combination of
these methods of sale. See "Plan of Distribution" for more information.
The common stock of First Industrial Realty Trust, Inc. is listed on the
New York Stock Exchange under the symbol "FR."
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement.
Investing in the Securities of First Industrial Realty Trust, Inc. or First
Industrial, L.P. involves risks that are described in the "Risk Factors" section
beginning on page 4 of this prospectus.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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The date of this prospectus is __________, 2001.
TABLE OF CONTENTS
Page
RISK FACTORS..................................................................4
RATIOS OF EARNINGS TO FIXED CHARGES..........................................12
USE OF PROCEEDS..............................................................12
PLAN OF DISTRIBUTION.........................................................12
DESCRIPTION OF DEBT SECURITIES...............................................15
DESCRIPTION OF PREFERRED STOCK...............................................29
DESCRIPTION OF DEPOSITARY SHARES.............................................36
DESCRIPTION OF COMMON STOCK..................................................40
CERTAIN PROVISIONS OF MARYLAND LAW AND THE FIRST INDUSTRIAL REALTY
TRUST, INC. ARTICLES OF INCORPORATION AND BYLAWS........................42
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK...................................44
FEDERAL INCOME TAX CONSIDERATIONS............................................45
EXPERTS......................................................................48
LEGAL MATTERS................................................................48
WHERE YOU CAN FIND MORE INFORMATION..........................................48
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement First Industrial Realty
Trust, Inc. and First Industrial, L.P. filed with the Securities and Exchange
Commission utilizing the "shelf" registration process, relating to the common
stock, preferred stock, depositary shares and debt securities described in this
prospectus. Under this shelf process, First Industrial Realty Trust, Inc. and
First Industrial, L.P. may sell any combination of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$1,089,200,000.
This prospectus provides you with a general description of the securities
First Industrial Realty Trust, Inc. and First Industrial, L.P. may offer. Each
time First Industrial Realty Trust, Inc. or First Industrial, L.P. sells
securities, it will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
In this prospectus, the terms "we" and "our" refer to First Industrial
Realty Trust, Inc. and its subsidiaries, including First Industrial, L.P.,
unless the context otherwise requires. The term "Operating Partnership" refers
to First Industrial, L.P.
FIRST INDUSTRIAL REALTY TRUST, INC. AND FIRST INDUSTRIAL, L.P.
First Industrial Realty Trust, Inc. is a real estate investment trust, or
"REIT," subject to Sections 856 through 860 of the Internal Revenue Code of
1986. First Industrial Realty Trust, Inc. and its consolidated partnerships,
corporations and limited liability companies are a self-administered and fully
integrated real estate company which owns, manages, acquires, sells and develops
industrial real estate.
As of March 31, 2001, our portfolio consisted of the following types of
properties:
o 509 light industrial properties -
Light industrial properties generally are of less than 100,000 square
feet, have a ceiling height of 16 to 21 feet, are comprised of 5% -
50% office space, contain less than 50% of manufacturing space and
have a land use ratio of 4:1. The land use ratio is the ratio of the
total property area to that not occupied by the building.
o 160 bulk warehouse properties -
Bulk warehouse buildings generally are of more than 100,000 square
feet, have a ceiling height of at least 22 feet, are comprised of 5% -
15% office space, contain less than 25% of manufacturing space and
have a land use ratio of 2:1.
o 170 R&D/flex properties -
R&D/flex buildings generally are of less than 100,000 square feet,
have a ceiling height of less than 16 feet, are comprised of 50% or
more of office space, contain less than 25% of manufacturing space and
have a land use ratio of 4:1.
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o 87 regional warehouse properties -
Regional warehouses generally are of less than 100,000 square feet,
have a ceiling height of at least 22 feet, are comprised of 5% - 15%
of office space, contain less than 25% of manufacturing space and have
a land use ratio of 2:1.
o 42 manufacturing properties -
Manufacturing properties are a diverse category of buildings that
generally have a ceiling height of 10 - 18 feet, are comprised of 5% -
15% of office space, contain more than 50% of manufacturing space and
have a land use ratio of 4:1.
These properties contain approximately 68.2 million square feet of gross
leasable area located in 25 states.
Our interests in our properties and land parcels are held through
partnerships, corporations and limited liability companies controlled by First
Industrial Realty Trust, Inc., including the Operating Partnership, of which
First Industrial Realty Trust, Inc. is the sole general partner. As of March 31,
2001 First Industrial Realty Trust, Inc. held approximately 84.3% of the
outstanding limited partnership units of the Operating Partnership. At that
date, approximately 15.7% of the outstanding limited partnership units were held
by outside investors, including certain members of the management of First
Industrial Realty Trust, Inc. Each limited partnership unit, other than those
held by First Industrial Realty Trust, Inc., may be exchanged for one share of
First Industrial Realty Trust, Inc. common stock, subject to adjustments. Upon
each exchange, the number of limited partnership units held by First Industrial
Realty Trust, Inc., and its ownership percentage of the Operating Partnership,
increases. First Industrial Realty Trust, Inc. also owns a preferred general
partnership interest in the Operating Partnership with an aggregate liquidation
priority of $350.0 million.
We utilize an operating approach that combines the effectiveness of
decentralized, locally based property management, acquisition, sales and
development functions with the cost efficiencies of centralized acquisition,
sales and development support, capital markets expertise, asset management and
fiscal control systems. At March 31, 2001, we had 285 employees.
We have grown and will seek to continue to grow through the development of
industrial properties and acquisition of additional industrial properties.
Our fundamental business objective is to maximize the total return to the
stockholders of First Industrial Realty Trust, Inc. and the partners of First
Industrial, L.P. through increases in per share and per unit distributions,
respectively, and increases in the value of our properties and operations.
First Industrial Realty Trust, Inc. is a Maryland corporation organized on
August 10, 1993, and which completed its initial public offering in June 1994.
The Operating Partnership is a Delaware limited partnership organized in
November 1993. Our principal executive offices are located at 311 S. Wacker
Drive, Suite 4000, Chicago, Illinois 60606, telephone number (312) 344-4300.
RISK FACTORS
Forward-looking statements may prove inaccurate.
Your investment in any of our securities will involve certain risks. For
example, there is the risk that an investment in any of our securities will
result in a loss. You should carefully consider the following discussion of
risks before deciding whether an investment in any of our securities is suitable
for you. We make
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statements in this prospectus and the documents we incorporate by reference that
are not based on historical facts including statements regarding, among other
items:
o the condition of the real estate market;
o legislative or regulatory changes affecting the real estate market;
o legislative or regulatory changes affecting the taxation of REITs;
o availability of capital;
o interest rates;
o competition;
o supply and demand for industrial properties in our current and
proposed market areas; and
o general accounting principles, policies and guidelines applicable to
REITs.
Sometimes these statements will contain words such as "believes,"
"expects," "intends," "plans" and other similar words. These statements are not
guarantees of our future performance and are subject to risks, uncertainties and
other important factors that could cause our actual performance or achievements
to be materially different from those we anticipate. These risks, uncertainties
and factors include those discussed below and those set forth elsewhere in this
prospectus and in the documents we incorporate by reference, including the 2000
Annual Reports on Form 10-K/A No. 1 of each of First Industrial Realty Trust,
Inc. and the Operating Partnership.
Real estate investments' value fluctuates depending on conditions in the general
economy and the real estate business. These conditions may also limit our
revenues and available cash.
The factors that affect the value of our real estate and the revenues we
derive from our properties include, among other things:
o general economic climate;
o local conditions such as oversupply or a reduction in demand in the
area;
o the attractiveness of the properties to tenants;
o tenant defaults;
o zoning or other regulatory restrictions;
o competition from other available real estate;
o our ability to provide adequate maintenance and insurance; and
o increased operating costs, including insurance premiums and real
estate taxes.
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Many real estate costs are fixed, even if income from our properties decreases.
Our financial results depend on leasing space in our real estate properties
to tenants on terms favorable to us. In addition, because greater than 90% of
our gross revenues come from rentals of real property, our income and funds
available for distribution to our stockholders will decrease if a significant
number of our tenants cannot pay their rent. If a tenant does not pay its rent,
we might not be able to enforce our rights as landlord without delays and we
might incur substantial legal costs.
Our income may also be reduced if tenants are unable to pay rent or we are
unable to rent properties on favorable terms. Costs associated with real estate
investment, such as real estate taxes and maintenance costs, generally are not
reduced when circumstances cause a reduction in income from the investment.
We may be unable to sell properties when appropriate because real estate
investments are illiquid.
Real estate investments generally cannot be sold quickly and, therefore,
will tend to limit our ability to vary our property portfolio promptly in
response to changes in economic or other conditions. The inability to respond
promptly to changes in the performance of our property portfolio could adversely
affect our financial condition and ability to service debt and make
distributions to our stockholders.
We may be unable to renew leases or find other lessees.
We are subject to the risks that, upon expiration, leases may not be
renewed, the space subject to such leases may not be relet or the terms of
renewal or reletting, including the cost of required renovations, may be less
favorable than expiring lease terms. If we were unable to promptly renew a
significant number of expiring leases or to promptly relet the space covered by
such leases, or if the rental rates upon renewal or reletting were significantly
lower than the then current rates, our cash funds from operations and ability to
make expected distributions to stockholders might be adversely affected. As of
March 31, 2001, leases with respect to approximately 10.6 million, 11.1 million
and 11.5 million square feet, representing 17%, 17% and 18%, of gross leasable
area expire in the remainder of 2001, 2002 and 2003, respectively.
We may incur unanticipated costs and liabilities due to environmental problems.
Under various federal, state and local laws, ordinances and regulations, an
owner or operator of real estate may be liable for the costs of clean-up of
certain conditions relating to the presence of hazardous or toxic materials on,
in or emanating from the property, and any related damages to natural resources.
Environmental laws often impose liability without regard to whether the owner or
operator knew of, or was responsible for, the presence of hazardous or toxic
materials. The presence of such materials, or the failure to address those
conditions properly, may adversely affect the ability to rent or sell the
property or to borrow using the property as collateral. Persons who dispose of
or arrange for the disposal or treatment of hazardous or toxic materials may
also be liable for the costs of clean-up of such materials, or for related
natural resource damages, at or from an off-site disposal or treatment facility,
whether or not the facility is owned or operated by those persons. No assurance
can be given that existing environmental assessments with respect to any of our
properties reveal all environmental liabilities, that any prior owner or
operator of any of the properties did not create any material environmental
condition not known to us or that a material environmental condition does not
otherwise exist as to any of our properties.
First Industrial Realty Trust, Inc. might fail to qualify or remain qualified as
a REIT.
First Industrial Realty Trust, Inc. intends to operate so as to qualify as
a REIT under the Internal Revenue Code of 1986. Although we believe that First
Industrial Realty Trust, Inc. is organized and will operate in a manner so as to
qualify as a REIT, qualification as a REIT involves the satisfaction of numerous
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requirements, some of which must be met on a recurring basis. These requirements
are established under highly technical and complex Code provisions of which
there are only limited judicial or administrative interpretations, and involve
the determination of various factual matters and circumstances not entirely
within our control. If First Industrial Realty Trust, Inc. were to fail to
qualify as a REIT in any taxable year, First Industrial Realty Trust, Inc. would
be subject to federal income tax, including any applicable alternative minimum
tax, on First Industrial Realty Trust, Inc.'s taxable income at corporate rates.
This could result in a discontinuation or substantial reduction in dividends to
stockholders. Unless entitled to relief under certain statutory provisions,
First Industrial Realty Trust, Inc. also would be disqualified from treatment as
a REIT for the four taxable years that follow. See "Federal Income Tax
Considerations."
The REIT distribution requirements may require us to turn to external financing
sources.
First Industrial Realty Trust, Inc. could, in certain instances, have
taxable income without sufficient cash to enable First Industrial Realty Trust,
Inc. to meet the distribution requirements of the REIT provisions of the Code.
In that situation, we could be required to borrow funds or sell properties on
adverse terms in order to meet those distribution requirements. In addition,
because First Industrial Realty Trust, Inc. must distribute to its stockholders
at least 90% of our REIT taxable income each year, our ability to accumulate
capital may be limited. Thus, in connection with future acquisitions, First
Industrial Realty Trust, Inc. may be more dependent on outside sources of
financing, such as debt financing or issuances of additional capital stock,
which may or may not be available on favorable terms. Additional debt financings
may substantially increase our leverage and additional equity offerings may
result in substantial dilution of stockholders' interests. See "Federal Income
Tax Considerations."
There are restrictions on the transfer of our common stock.
To maintain First Industrial Realty Trust, Inc.'s qualification as a REIT
under the Code, no more than 50% in value of our outstanding capital stock may
be owned, actually or by attribution, by five or fewer individuals, as defined
in the Code to include certain entities, during the last half of a taxable year.
Accordingly, First Industrial Realty Trust, Inc.'s articles of incorporation
contain provisions restricting the ownership and transfer of our capital stock.
See "Restrictions on Transfers of Capital Stock."
Debt financing and the degree of leverage could reduce our cash flow.
Where possible, we intend to continue to use leverage to increase the rate
of return on our investments and to allow us to make more investments than we
otherwise could. Our use of leverage presents an additional element of risk in
the event that the cash flow from our properties is insufficient to meet both
debt payment obligations and the distribution requirements of the REIT
provisions of the Code.
Cross-collateralization of mortgage loans could result in foreclosure on
substantially all of our properties if we are unable to service our
indebtedness.
If the Operating Partnership determines to obtain additional debt financing
in the future, it may do so through mortgages on some or all of its properties.
These mortgages may be on recourse, non-recourse or cross-collateralized bases.
Cross-collateralization makes all of the subject properties available to the
lender in order to satisfy our debt. Holders of indebtedness that is so secured
will have a claim against these properties and to the extent indebtedness is
cross-collateralized, lenders may seek to foreclose upon properties that are not
the primary collateral for their loan, which may, in turn, result in
acceleration of other indebtedness secured by properties. Foreclosure of
properties would result in a loss of income and asset value to First Industrial,
L.P. and First Industrial Realty Trust, Inc., making it difficult for us to meet
both debt payment obligations and the distribution requirements of the REIT
provisions of the Code. As of March 31, 2001, none of our current indebtedness
was cross-collateralized.
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We may have to make lump-sum payments on our existing indebtedness.
We are required to make lump-sum or "balloon" payments under the terms of
some of our indebtedness, including the Operating Partnership's:
o $200 million aggregate principal amount of 7.60% Notes due 2028 (the
"2028 Notes")
o $100 million aggregate principal amount of 7.15% Notes due 2027 (the
"2027 Notes")
The holders of the 2027 Notes have the right to require First
Industrial Realty Trust, Inc. to redeem through the Operating
Partnership the 2027 Notes, in whole or in part, on May 15, 2002.
o $100 million aggregate principal amount of 7.50% Notes due 2017 (the
"2017 Notes")
o $100 million aggregate principal amount of 7 3/8% Notes due 2011 (the
"Trust Notes")
The trust to which the Trust Notes were issued must exercise its right
to require First Industrial Realty Trust, Inc., through the Operating
Partnership, to redeem the Trust Notes on May 15, 2004 if the holder
of a call option with respect to the Trust Notes fails to give written
notice on or before May 1, 2004 that it intends to exercise such
option.
o $200 million aggregate principal amount of our 7.375% Notes due 2011
(the "2011 Notes")
o $150 million aggregate principal amount of 7.60% Notes due 2007 (the
"2007 Notes")
o $150 million aggregate principal amount of 7.0% Notes due 2006 (the
"2006 Notes")
o $50 million aggregate principal amount of 6.90% Notes due 2005 (the
"2005 Notes")
and
o a $300 million unsecured revolving credit facility (the "Acquisition
Facility") under which First Industrial Realty Trust, Inc., through
the Operating Partnership, may borrow to finance the acquisition of
additional properties and for other corporate purposes, including
working capital.
The Acquisition Facility provides for the repayment of principal in a
lump-sum or "balloon" payment at maturity in 2003. Under the
Acquisition Facility, the Operating Partnership has the right, subject
to certain conditions, to increase the aggregate commitment under the
Acquisition Facility by up to $100 million. As of March 31, 2001, $9.3
million was outstanding under the Acquisition Facility at a weighted
average interest rate of 6.1%.
Our ability to make required payments of principal on outstanding
indebtedness, whether at maturity or otherwise, may depend on our ability either
to refinance the applicable indebtedness or to sell properties. We have no
commitments to refinance the 2005 Notes, the 2006 Notes, the 2007 Notes, the
2011 Notes, the Trust Notes, the 2017 Notes, the 2027 Notes, the 2028 Notes or
the Acquisition Facility. Some of the existing debt obligations, other than
those discussed above, of First Industrial Realty Trust, Inc., through the
Operating Partnership, are secured by our properties, and therefore such
obligations will permit the lender to foreclose on those properties in the event
of a default.
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There is no limitation on debt in our organizational documents.
We currently have a policy of maintaining a ratio of debt to total market
capitalization of 50% or less. We compute that percentage by calculating our
total consolidated debt as a percentage of the aggregate market value of all
outstanding shares of our common stock, assuming the exchange of all limited
partnership units of the Operating Partnership for common stock, plus the
aggregate stated value of all outstanding shares of preferred stock and total
consolidated debt. We also currently have a policy of maintaining a coverage
ratio of at least 2.0:1. We calculate the coverage ratio as total revenues minus
property expenses and general and administrative expenses divided by interest
expense and dividends on preferred stock.
As of March 31, 2001, our ratio of debt to our total market capitalization
was 40.3% and for the twelve months ended March 31, 2001 our coverage ratio was
2.22:1. The organizational documents of First Industrial Realty Trust, Inc.,
however, do not contain any limitation on the amount or percentage of
indebtedness we may incur and our Board of Directors has the power to alter the
current policy. In addition, except as set forth in a supplemental indenture and
described in a prospectus supplement for any offering of debt securities, the
indenture governing our debt securities does not limit our ability to incur
indebtedness. Accordingly, we could become more highly leveraged, resulting in
an increase in debt service that could adversely affect our ability to make
expected distributions to stockholders and in an increased risk of default on
our obligations.
Except as may be contained in a supplemental indenture and described in a
prospectus supplement at the time of any offering of debt securities, the
indenture governing our debt securities does not protect our debt security
holders in the event of a highly leveraged transaction or a change in control of
First Industrial Realty Trust, Inc. or First Industrial, L.P.
Rising interest rates on our Acquisition Facility could decrease our available
cash.
Our Acquisition Facility bears interest at a floating rate. As of March 31,
2001, our Acquisition Facility had an outstanding balance of $9.3 million at a
weighted average interest rate of 6.1%. Currently, our Acquisition Facility
bears interest at the Prime Rate or at the London Interbank Offering Rate plus
.80%. Based on an outstanding balance on our Acquisition Facility as of March
31, 2001, a 10% increase in interest rates would increase interest expense by
$.1 million on an annual basis. Increases in the interest rate payable on
balances outstanding under the Acquisition Facility would decrease our cash
available for distribution to stockholders.
The charter documents of First Industrial Realty Trust, Inc. may hinder attempts
to acquire us or have anti-takeover effects.
Provisions of the articles of incorporation of First Industrial Realty
Trust, Inc. may have the effect of delaying, deferring or preventing a third
party from making an acquisition proposal for First Industrial Realty Trust,
Inc. and thus inhibit a change in control, thereby limiting the opportunity for
First Industrial Realty Trust, Inc.'s stockholders to receive a premium for
their common stock. Those provisions include:
o the requirement that not less than two-thirds of all of the votes
entitled to be cast on the matter are required to amend the articles
of incorporation of First Industrial Realty Trust, Inc; and
o a prohibition on any holder owning more than 9.9% in value of the
capital stock of First Industrial Realty Trust, Inc.
The bylaws of First Industrial Realty Trust, Inc. include a provision whereby
stockholder notice is required prior to any stockholder nomination of a
director. See "Description of Preferred Stock - General," "Certain
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Provisions of Maryland Law and the First Industrial Realty Trust, Inc. Articles
of Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock."
The terms of our junior participating preferred stock are anti-takeover in
nature. In the event of any merger, consolidation, combination or other
transaction in which shares of common stock of First Industrial Realty Trust,
Inc. are exchanged for or changed into other stock or securities, cash and/or
other property, each share of First Industrial Realty Trust, Inc. junior
participating preferred stock will be entitled to receive 100 times the
aggregate amount of stock, securities, cash and/or other property, into which or
for which each share of First Industrial Realty Trust, Inc. common stock is
changed or exchanged, subject to certain adjustments. See "Description of Common
Stock - Shareholder Rights Plan."
The provisions of First Industrial Realty Trust, Inc.'s preferred stock may
hinder attempts to acquire us.
Under the articles of incorporation of First Industrial Realty Trust, Inc.,
First Industrial Realty Trust, Inc. has authority to issue up to 10,000,000
shares of preferred stock on such terms as may be authorized by First Industrial
Realty Trust, Inc.'s board of directors. The following amounts were outstanding
on June 1, 2001:
o 40,000 shares of Series B preferred stock
o 20,000 shares of Series C preferred stock
o 50,000 shares of Series D preferred stock, and
o 30,000 shares of Series E preferred stock.
The terms of the preferred stock could delay, deter or prevent a change in
control or other transaction that might involve a premium price or otherwise be
in the best interest of First Industrial Realty Trust, Inc.'s stockholders. The
board of directors has also reserved 1,000,000 shares of our junior
participating preferred stock for issuance under a shareholder rights plan
adopted by First Industrial Realty Trust, Inc.'s board of directors. The terms
of the shareholder rights plan could delay, deter or prevent a change in control
or other transaction that might involve a premium price or otherwise be in the
best interest of First Industrial Realty Trust, Inc.'s stockholders. See
"Description of Common Stock--Shareholders Rights Plan."
Maryland law provisions may hinder attempts to acquire First Industrial Realty
Trust, Inc.
Under the Maryland General Corporation Law, as applicable to Maryland
corporate REITs, specified "business combinations" between a Maryland REIT, such
as First Industrial Realty Trust, Inc., and any person who beneficially owns 10%
or more of the voting power of the corporation's shares (an "Interested
Stockholder") or, in certain circumstances, an associate or an affiliate of the
Interested Stockholder, are prohibited for five years after the most recent date
on which the Interested Stockholder becomes an Interested Stockholder. Business
combinations for the purposes of the preceding sentence are defined by the MGCL
to include specified mergers, consolidations, share exchanges and asset
transfers, some issuances and reclassifications of equity securities, the
adoption of a plan of liquidation or dissolution or the receipt by an Interested
Stockholder or its affiliate of any loan advance, guarantee, pledge or other
financial assistance or tax advantage provided by First Industrial Realty Trust,
Inc. After the five-year period, any such business combination must be
recommended by the board of directors and approved by two super-majority
stockholder votes unless, among other conditions, the corporation's common
stockholders receive a minimum price, as defined in the MGCL, for their shares,
in cash or in the same form as previously paid by the Interested Stockholder for
its shares. The provisions of the MGCL do not apply to business combinations
that are approved or exempted by the board of directors prior to the time that
the Interested Stockholder becomes an Interested Stockholder.
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First Industrial Realty Trust, Inc.'s articles of incorporation exempt from
the business combination provisions of the MGCL any business combination in
which there is no Interested Stockholder other than Jay H. Shidler, Chairman of
our Board of Directors, or any entity controlled by Mr. Shidler, unless Mr.
Shidler is an Interested Stockholder without taking into account Mr. Shidler's
ownership of shares of First Industrial Realty Trust, Inc.'s common stock and
the right to acquire shares of common stock in an aggregate amount which does
not exceed the number of shares that Mr. Shidler owned and had the right to
acquire, including through the exchange of limited partnership units of First
Industrial, L.P., at the time of the consummation of First Industrial Realty
Trust, Inc.'s initial public offering.
As a result, Mr. Shidler and entities controlled by him may enter into
business combinations with First Industrial Realty Trust, Inc. that may not be
in the best interest of its stockholders. With respect to business combinations
with any other persons, the business combination provisions of the MGCL may
delay, deter or prevent a change in control of First Industrial Realty Trust,
Inc. that might involve a premium price or otherwise be in the best interest of
stockholders.
The MGCL provides that "control shares" of a Maryland REIT acquired in a
control share acquisition have no voting rights, except to the extent approved
by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares owned by the acquiror, by officers of the corporation and by
employees who are also directors of the corporation. "Control shares" are
defined as voting shares of stock or beneficial interests that entitle their
holder to one of several specified ranges of voting power in elections of
directors. If voting rights with respect to control shares have not been
approved at a meeting of stockholders, then, subject to certain conditions and
limitations, the issuer may redeem any or all of such control shares for fair
value. If voting rights for control shares are approved at a stockholders
meeting and the acquiror becomes entitled to vote a majority of the shares
entitled to vote, all other stockholders may exercise appraisal rights. First
Industrial Realty Trust, Inc.'s bylaws contain a provision exempting any and all
acquisitions of shares of First Industrial Realty Trust, Inc.'s capital stock
from the control share provisions of the MGCL. There can be no assurance that
this provision will not be amended or eliminated in the future.
The composition of First Industrial Realty Trust, Inc.'s board of directors
could hinder a change in control.
First Industrial Realty Trust, Inc.'s directors are divided into three
classes by its articles of incorporation, with terms expiring over a three-year
period. The classified board provision could make it more difficult and
time-consuming to remove the incumbent directors and may delay, deter or prevent
a change in control of First Industrial Realty Trust, Inc. that might involve a
premium price or otherwise be in the best interest of stockholders.
Some of First Industrial Realty Trust, Inc.'s officers and directors may have
interests opposed to us with respect to certain transactions because they may
suffer adverse tax consequences.
Some of the officers and directors of First Industrial Realty Trust, Inc.
own limited partnership units of the Operating Partnership, which may be
exchanged for shares of common stock. As of March 31, 2001, those officers and
directors include Jay H. Shidler, Chairman of the Board of Directors of First
Industrial Realty Trust, Inc., Michael W. Brennan, President and Chief Executive
Officer and a Director of First Industrial Realty Trust, Inc., Johannson L. Yap,
Chief Investment Officer of First Industrial Realty Trust, Inc., Michael G.
Damone, Director of Strategic Planning and a Director of First Industrial Realty
Trust, Inc., Timothy E. Gudim, a Managing Director of First Industrial Realty
Trust, Inc., Timothy J. Donohue, Senior Vice President - IIS of First Industrial
Realty Trust, Inc., Gregory S. Downs, a Senior Regional Director of First
Industrial Realty Trust, Inc. and Kevin Smith, a Senior Regional Director of
First Industrial Realty Trust, Inc. Prior to the exchange of units for common
stock, the officers and directors who own limited partnership units may suffer
different and more adverse tax consequences than holders of common stock upon
the sale of certain of our properties, the refinancing of debt associated with
those properties or in connection with a proposed
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tender offer or merger involving us. Therefore, those individuals and First
Industrial Realty Trust, Inc., as partners in the Operating Partnership, may
have different objectives regarding the appropriate terms of any such
transaction.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges plus preferred dividend
requirements for the three months ended March 31, 2001 and for the years ended
December 31, 2000, 1999, 1998, 1997 and 1996 were 1.51x, 1.54x, 1.62x, 1.43x,
1.81x and 1.88x, respectively. The Operating Partnership's ratios of earnings to
fixed charges for the three months ended March 31, 2001 and for the years ended
December 31, 2000, 1999, 1998, 1997 and 1996 were 2.11x, 2.13x, 2.44x, 2.08x,
3.12x and 6.96x, respectively.
For purposes of computing the ratios of earnings to fixed charges, earnings
have been calculated by adding fixed charges (excluding capitalized interest) to
income from operations before income allocated to minority interest. Fixed
charges consist of interest cost, whether expensed or capitalized, and
amortization of interest rate protection agreements and deferred financing
costs.
USE OF PROCEEDS
Unless otherwise described in the applicable prospectus supplement, First
Industrial Realty Trust, Inc. and the Operating Partnership intend to use the
net proceeds from the sale of securities offered by this prospectus and the
applicable prospectus supplement for general corporate purposes, which may
include the acquisition of additional properties, the repayment of outstanding
debt, the redemption of First Industrial Realty Trust, Inc.'s preferred stock or
the improvement of certain properties already in First Industrial Realty Trust,
Inc.'s portfolio. Any proceeds from the sale of common stock, preferred stock or
depositary shares by First Industrial Realty Trust, Inc. will be invested in the
Operating Partnership, which will use the proceeds for the same purposes.
PLAN OF DISTRIBUTION
First Industrial Realty Trust, Inc. and/or the Operating Partnership may
sell offered securities in any one or more of the following ways from time to
time:
o through agents;
o to or through underwriters;
o through dealers;
o directly by us to purchasers; or
o through a combination of these methods of sale.
The prospectus supplement relating to the offered securities will set forth
the terms of the offering and of the offered securities, including:
o the name or names of any underwriters, dealers or agents;
o the purchase price of the offered securities and the proceeds to First
Industrial Realty Trust, Inc. and/or the Operating Partnership from
such sale;
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o any underwriting discounts and commission or agency fees and other
items constituting underwriters' or agents' compensation;
o any initial public offering price; and
o any discounts or concessions allowed or reallowed or paid to dealers
and any securities exchange on which such offered securities may be
listed.
Any initial public offering price, discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time.
The distribution of the offered securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at negotiated prices.
Offers to purchase offered securities may be solicited by agents designated
by First Industrial Realty Trust, Inc. and/or the Operating Partnership from
time to time. Any agent involved in the offer or sale of the offered securities
in respect of which this prospectus is delivered will be named, and any
commissions payable by First Industrial Realty Trust, Inc. and/or the Operating
Partnership to the agent will be set forth, in the applicable prospectus
supplement. Unless otherwise indicated in the prospectus supplement, any agent
will be acting on a reasonable best efforts basis for the period of its
appointment. Any agent may be deemed to be an underwriter, as that term is
defined in the Securities Act of 1933, of the offered securities so offered and
sold.
If offered securities are sold by means of an underwritten offering, First
Industrial Realty Trust, Inc. and/or the Operating Partnership will execute an
underwriting agreement with an underwriter or underwriters, and the names of the
specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transaction, including commissions, discounts
and any other compensation of the underwriters and dealers, if any, will be set
forth in the prospectus supplement which will be used by the underwriters to
make resales of the offered securities. If underwriters are utilized in the sale
of the offered securities, the offered securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at fixed public offering
prices or at varying prices determined by the underwriters at the time of sale.
Offered securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by the managing
underwriters. If any underwriter or underwriters are utilized in the sale of the
offered securities, unless otherwise indicated in the prospectus supplement, the
underwriting agreement will provide that the obligations of the underwriters are
subject to certain conditions precedent and that the underwriters with respect
to a sale of offered securities will be obligated to purchase all such offered
securities of a series if any are purchased.
First Industrial Realty Trust, Inc. and/or the Operating Partnership may
grant to the underwriters options to purchase additional offered securities, to
cover over-allotments, if any, at the public offering price, with additional
underwriting discounts or commissions, as may be set forth in the prospectus
supplement relating thereto. If First Industrial Realty Trust, Inc. and/or the
Operating Partnership grant any over-allotment option, the terms of the
over-allotment option will be set forth in the prospectus supplement relating to
the offered securities.
If a dealer is utilized in the sales of offered securities in respect of
which this prospectus is delivered, First Industrial Realty Trust, Inc. and/or
the Operating Partnership will sell the offered securities to the dealer as
principal. The dealer may then resell the offered securities to the public at
varying prices to be determined by the dealer at the time of resale. Any dealer
may be deemed to be an underwriter, as that term is defined in the Securities
Act, of the offered securities so offered and sold. The name of the dealer and
the terms of the transaction will be set forth in the related prospectus
supplement.
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Offers to purchase offered securities may be solicited directly by First
Industrial Realty Trust, Inc. and/or the Operating Partnership and the sale may
be made by First Industrial Realty Trust, Inc. and/or the Operating Partnership
directly to institutional investors or others, who may be deemed to be
underwriters within the meaning of the Securities Act with respect to any resale
thereof. The terms of any such sales will be described in the related prospectus
supplement.
Offered securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more remarketing firms, acting as principals for their
own accounts or as agents for First Industrial Realty Trust, Inc. and/or the
Operating Partnership. Any remarketing firm will be identified and the terms of
its agreements, if any, with First Industrial Realty Trust, Inc. and/or the
Operating Partnership and its compensation will be described in the applicable
prospectus supplement. Remarketing firms may be deemed to be underwriters, as
that term is defined in the Securities Act, in connection with the offered
securities remarketed thereby.
Agents, underwriters, dealers and remarketing firms may be entitled under
relevant agreements entered into with First Industrial Realty Trust, Inc. and/or
the Operating Partnership to indemnification by First Industrial Realty Trust,
Inc. and/or the Operating Partnership against certain civil liabilities,
including liabilities under the Securities Act, that may arise from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact in this prospectus, any supplement or
amendment hereto, or in the registration statement of which this prospectus
forms a part, or to contribution with respect to payments which the agents,
underwriters, dealers or remarketing firms may be required to make. The terms of
any such indemnification or contribution will be described in the related
prospectus supplement.
If so indicated in the prospectus supplement, First Industrial Realty
Trust, Inc. and/or the Operating Partnership will authorize underwriters or
other persons acting as agents to solicit offers by certain institutions to
purchase offered securities from First Industrial Realty Trust, Inc. and/or the
Operating Partnership, pursuant to contracts providing for payments and delivery
on a future date. Institutions with which these contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
these institutions must be approved by First Industrial Realty Trust, Inc.
and/or the Operating Partnership. The obligations of any purchaser under any
contract will be subject to the condition that the purchase of the offered
securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the purchaser is subject. The underwriters and other
agents will not have any responsibility in respect of the validity or
performance of these contracts.
Each series of offered securities will be a new issue and, other than the
common stock of First Industrial Realty Trust, Inc., which is listed on the
NYSE, will have no established trading market. First Industrial Realty Trust,
Inc. and/or the Operating Partnership may elect to list any series of offered
securities on an exchange or automated quotation system, and in the case of the
common stock of First Industrial Realty Trust, Inc., on any additional exchange,
but, unless otherwise specified in the applicable prospectus supplement, First
Industrial Realty Trust, Inc. and/or the Operating Partnership will not be
obligated to do so. No assurance can be given as to the liquidity of the trading
market for any of the offered securities.
Underwriters, dealers, agents and remarketing firms may engage in
transactions with, or perform services for, First Industrial Realty Trust, Inc.
and/or the Operating Partnership and their subsidiaries in the ordinary course
of business.
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DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under an indenture, dated as of May 13,
1997, between the Operating Partnership and U.S. Bank Trust National Association
(formerly known as First Trust National Association), as trustee, which has been
incorporated by reference as an exhibit to the Registration Statement of which
this prospectus is a part, subject to such amendments or supplements as may be
adopted from time to time. The indenture is subject to and governed by the Trust
Indenture Act of 1939, as amended. The statements made under this heading
relating to the debt securities and the indenture are summaries only, do not
purport to be complete and are qualified in their entirety by reference to the
indenture and the debt securities. All material terms of the debt securities and
the indenture, other than those disclosed in the applicable prospectus
supplement, are described in this prospectus.
The debt securities to be offered under this prospectus and in any
applicable prospectus supplement will be "investment grade" securities, meaning
that at the time of the offering of the debt securities, at least one nationally
recognized statistical rating organization, as defined in the Exchange Act, will
have rated the debt securities in one of its generic rating categories that
signifies investment grade. Typically the four highest rating categories, within
which there may be sub-categories or gradations indicating relative standing,
signify investment grades. An investment grade rating is not a recommendation to
buy, sell or hold securities, is subject to revision or withdrawal at any time
by the assigning entity and should be evaluated independently of any other
rating.
Terms
General. The debt securities will be direct unsecured obligations of the
Operating Partnership. The indebtedness represented by the debt securities will
rank equally with all other unsecured and unsubordinated indebtedness of the
Operating Partnership. No partner, whether limited or general, including First
Industrial Realty Trust, of the Operating Partnership has any obligation for the
payment of principal of, or premium, if any, or interest, if any, on, or any
other amount with respect to, the debt securities. The particular terms of the
debt securities offered by a prospectus supplement, including any applicable
federal income tax considerations, will be described in the applicable
prospectus supplement, along with any applicable modifications of or additions
to the general terms of the debt securities as described in this prospectus and
in the indenture. For a description of the terms of any series of debt
securities, you should read both the prospectus supplement relating to the debt
securities and the description of the debt securities in this prospectus.
Except as set forth in any prospectus supplement, the debt securities may
be issued without limit as to aggregate principal amount, in one or more series,
in each case as established from time to time by the Operating Partnership or as
set forth in the indenture or in one or more indentures supplemental to the
indenture. All debt securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the holders of the debt securities of such series, for issuance of additional
debt securities of such series.
The indenture provides that the Operating Partnership may, but need not,
designate more than one trustee, each with respect to one or more series of debt
securities. Any trustee under the indenture may resign or be removed with
respect to one or more series of debt securities, and a successor trustee may be
appointed to act with respect to the series. In the event that two or more
persons are acting as trustee with respect to different series of debt
securities, each trustee shall be a trustee of a trust under the indenture
separate and apart from the trust administered by any other trustee. In that
event and except as otherwise indicated in this prospectus, any action described
in this prospectus to be taken by each trustee may be taken by each such trustee
with respect to, and only with respect to, the one or more series of debt
securities for which it is trustee under the indenture.
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The following summaries set forth general terms and provisions of the
indenture and the debt securities. The prospectus supplement relating to the
applicable series of debt securities will contain further terms of the debt
securities, including the following specific terms:
o The title of the debt securities;
o The aggregate principal amount of the debt securities and any limit on
the aggregate principal amount;
o The price, expressed as a percentage of the principal amount thereof,
at which the debt securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of maturity;
o The date or dates, or the method for determining the date or dates, on
which the principal of the debt securities will be payable;
o The rate or rates, which may be fixed or variable, or the method by
which the rate or rates shall be determined, at which the debt
securities will bear interest, if any;
o The date or dates, or the method for determining the date or dates,
from which any interest will accrue, the dates on which any interest
will be payable, the record dates for interest payment dates, or the
method by which the dates shall be determined, the persons to whom the
interest will be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day
months;
o The place or places where the principal of, and premium or make-whole
amount, if any, and interest, if any, on the debt securities will be
payable, where the debt securities may be surrendered for registration
of transfer or exchange and where notices or demands to or upon the
Operating Partnership in respect of the debt securities and the
indenture may be served;
o The period or periods, if any, within which, the price or prices at
which, and the other terms and conditions upon which, the debt
securities may, under any optional or mandatory redemption provisions,
be redeemed, as a whole or in part, at the option of the Operating
Partnership;
o The obligation, if any, of the Operating Partnership to redeem, repay
or purchase the debt securities under any sinking fund or analogous
provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which, and the other
terms and conditions upon which, the debt securities will be redeemed,
repaid or purchased, as a whole or in part, pursuant to such
obligation;
o If other than U.S. dollars, the currency or currencies in which the
debt securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating thereto;
o Whether the amount of payments of principal of, and premium or
make-whole amount, if any, including any amount due upon redemption,
if any, or interest, if any, on the debt securities may be determined
with reference to an index, formula or other method, which index,
formula or method may, but need not be, based on the yield on or
trading price of other securities, including United States Treasury
securities, or on a currency, currencies, currency unit or units, or
composite currency or currencies, and the manner in which such amounts
shall be determined;
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o Whether the principal of, and premium or make-whole amount, if any, or
interest on the debt securities of the series are to be payable, at
the election of the Operating Partnership or a holder of debt
securities, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which the debt
securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, that
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which the debt securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
the debt securities are to be so payable;
o Provisions, if any, granting special rights to the holders of debt
securities of the series upon the occurrence of such events as may be
specified;
o Any deletions from, modifications of or additions to the events of
default or covenants of the Operating Partnership with respect to debt
securities of the series, whether or not such events of default or
covenants are consistent with the events of default or covenants
described herein;
o Whether and under what circumstances the Operating Partnership will
pay any additional amounts on the debt securities in respect of any
tax, assessment or governmental charge and, if so, whether the
Operating Partnership will have the option to redeem the debt
securities in lieu of making such payment;
o Whether debt securities of the series are to be issuable as registered
securities, bearer securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of bearer
securities and the terms upon which bearer securities of the series
may be exchanged for registered securities of the series and vice
versa, if permitted by applicable laws and regulations, whether any
debt securities of the series are to be issuable initially in
temporary global form and whether any debt securities of the series
are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such
permanent global security may exchange such interests for debt
securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the indenture, and, if
registered securities of the series are to be issuable as a global
security, the identity of the depository for such series;
o The date as of which any bearer securities of the series and any
temporary global security representing outstanding debt securities of
the series shall be dated if other than the date of original issuance
of the first security of the series to be issued;
o The person to whom any interest on any registered security of the
series shall be payable, if other than the person in whose name that
security, or one or more predecessor securities, is registered at the
close of business on the regular record date for such interest, the
manner in which, or the person to whom, any interest on any bearer
security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global security on an interest payment
date will be paid if other than in the manner provided in the
indenture;
o Whether the debt securities will be issued in certificated or book
entry form;
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o The applicability, if any, of the defeasance and covenant defeasance
provisions of the indenture to the debt securities of the series;
o If the debt securities of the series are to be issuable in definitive
form, whether upon original issue or upon exchange of a temporary
Security of the series, only upon receipt of certain certificates or
other documents or satisfaction of other conditions, then the form
and/or terms of the certificates, documents or conditions; and
o Any other terms of the series, which terms shall not be inconsistent
with the provisions of the indenture.
If so provided in the applicable prospectus supplement, the debt securities
may be issued at a discount below their principal amount and provide for less
than the entire principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof. In such cases, all material U.S. federal
income tax, accounting and other considerations applicable to such original
issue discount securities will be described in the applicable prospectus
supplement.
Except as may be set forth in any prospectus supplement, the indenture does
not contain any provisions that would limit the ability of the Operating
Partnership to incur indebtedness or that would afford holders of debt
securities protection in the event of a highly leveraged or similar transaction
involving the Operating Partnership or in the event of a change of control.
Restrictions on ownership and transfers of the common stock and preferred stock
of First Industrial Realty Trust, Inc. are designed to preserve First Industrial
Realty Trust, Inc.'s status as a REIT and, therefore, may act to prevent or
hinder a change of control. See "Restrictions on Transfers of Capital Stock."
Reference is made to the applicable prospectus supplement for information with
respect to any deletions from, modifications of, or additions to, the events of
default or covenants of the Operating Partnership that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
Denomination, Interest, Registration and Transfer
Unless otherwise provided in the applicable prospectus supplement, the debt
securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof. Where debt securities of any series are issued in
bearer form, the special restrictions and considerations, including special
offering restrictions and special federal income tax considerations, applicable
to those debt securities and to payment on and transfer and exchange of those
debt securities will be described in the applicable prospectus supplement.
Bearer debt securities will be transferable by delivery.
Unless otherwise provided in the applicable prospectus supplement, the
principal of, and applicable premium or Make-Whole Amount, if any, and interest
on any series of debt securities will be payable at the corporate trust office
of the applicable trustee, the address of which will be stated in the applicable
prospectus supplement. However, at the option of the Operating Partnership,
payment of interest may be made by check mailed to the address of the person
entitled thereto as it appears in the applicable register for the debt
securities or by wire transfer of funds to such person at an account maintained
within the United States.
Unless otherwise provided in the applicable prospectus supplement, any
interest not punctually paid or duly provided for on any interest payment date
with respect to a debt security in registered form, or "Defaulted Interest,"
will immediately cease to be payable to the holder on the applicable regular
record date and may either be paid to the person in whose name the debt security
is registered at the close of business on a special record date for the payment
of the defaulted interest to be fixed by the trustee, in which case notice
thereof shall be given to the holder of the debt security not less than 10 days
prior to the special record date, or may be paid at any time in any other lawful
manner, all as more completely described in the indenture.
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Subject to certain limitations imposed upon debt securities issued in book-
entry form, the debt securities of any series will be exchangeable for any
authorized denomination of other debt securities of the same series and of a
like aggregate principal amount and tenor upon surrender of the debt securities
at the corporate trust office of the applicable trustee or at the office of any
transfer agent designated by the Operating Partnership for such purpose. In
addition, subject to certain limitations imposed upon debt securities issued in
book-entry form, the debt securities of any series may be surrendered for
registration of transfer or exchange thereof at the corporate trust office of
the applicable trustee or at the office of any transfer agent designated by the
Operating Partnership for that purpose. Every debt security in registered form
surrendered for registration of transfer or exchange must be duly endorsed or
accompanied by a written instrument of transfer, and the person requesting that
action must provide evidence of title and identity satisfactory to the
applicable trustee or transfer agent. No service charge will be made for any
registration of transfer or exchange of any debt securities, but the Operating
Partnership may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. If the applicable
prospectus supplement refers to any transfer agent, in addition to the
applicable trustee, initially designated by the Operating Partnership with
respect to any series of debt securities, the Operating Partnership may at any
time rescind the designation of any such transfer agent or approve a change in
the location through which any such transfer agent acts, except that the
Operating Partnership will be required to maintain a transfer agent in each
place of payment for that series. The Operating Partnership may at any time
designate additional transfer agents with respect to any series of debt
securities.
Neither the Operating Partnership nor any trustee shall be required to
o issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 15 days
before the selection of any debt securities for redemption and ending
at the close of business on
- if the debt securities are issuable only as registered
securities, the day of the mailing of the relevant notice of
redemption and
- if the debt securities are issuable as bearer securities, the day
of the first publication of the relevant notice of redemption or,
if the debt securities are also issuable as registered securities
and there is no publication, the mailing of the relevant notice
of redemption;
o register the transfer of or exchange any debt security, or portion
thereof, so selected for redemption, in whole or in part, except the
unredeemed portion of any debt security being redeemed in part;
o exchange any bearer security selected for redemption except that, to
the extent provided with respect to the bearer security, the bearer
security may be exchanged for a registered security of that series and
of like tenor, provided that the registered security shall be
simultaneously surrendered for redemption; or
o issue, register the transfer of or exchange any debt security that has
been surrendered for repayment at the option of the holder, except the
portion, if any, of the debt security not to be so repaid.
Payment in respect of debt securities in bearer form will be made in the
currency and in the manner designated in the applicable prospectus supplement,
subject to any applicable laws and regulations, at such paying agencies outside
the United States as the Operating Partnership may appoint from time to time.
The paying agents outside the United States, if any, initially appointed by the
Operating Partnership for a series of debt securities will be named in the
applicable prospectus supplement. Unless otherwise provided in the appli-
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cable prospectus supplement, the Operating Partnership may at any time designate
additional paying agents or rescind the designation of any paying agents, except
that,
o if debt securities of a series are issuable in registered form, the
Operating Partnership will be required to maintain at least one paying
agent in each place of payment for such series and
o if debt securities of a series are issuable in bearer form, the
Operating Partnership will be required to maintain at least one paying
agent in a place of payment outside the United States where debt
securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment.
Merger, Consolidation or Sale of Assets
The indenture provides that the Operating Partnership may, without the
consent of the holders of any outstanding debt securities, consolidate with, or
sell, lease or convey all or substantially all of its assets to, or merge with
or into, any other entity provided that
o either the Operating Partnership shall be the continuing entity, or
the successor entity, if other than the Operating Partnership, formed
by or resulting from any such consolidation or merger or which shall
have received the transfer of such assets is organized under the laws
of any domestic jurisdiction and expressly assumes the Operating
Partnership's obligations to pay principal of, and premium or
make-whole amount, if any, and interest on all of the debt securities
and the due and punctual performance and observance of all of the
covenants and conditions contained in the indenture;
o immediately after giving effect to such transaction and treating any
indebtedness that becomes an obligation of the Operating Partnership
or any subsidiary as a result thereof as having been incurred by the
Operating Partnership or such subsidiary at the time of such
transaction, no event of default under the indenture, and no event
which, after notice or the lapse of time, or both, would become an
event of default, shall have occurred and be continuing; and
o an officers' certificate and legal opinion covering those conditions
shall be delivered to each trustee.
Certain Covenants
The applicable prospectus supplement will describe any material covenants
in respect of a series of debt securities that are not described in this
prospectus. Unless otherwise indicated in the applicable prospectus supplement,
the debt securities will include the following covenants of the Operating
Partnership:
Existence. Except as permitted under "--Merger, Consolidation or Sale of
Assets," the indenture requires the Operating Partnership to do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights and franchises; provided, however, that the Operating
Partnership shall not be required to preserve any right or franchise if it
determines that their preservation is no longer desirable in the conduct of its
business.
Maintenance of Properties. The indenture requires the Operating Partnership
to cause all of its material properties used or useful in the conduct of its
business or the business of any subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Operating
Partnership may be necessary so that the business carried on may be properly and
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advantageously conducted at all times; provided, however, that the Operating
Partnership and its subsidiaries shall not be prevented from selling or
otherwise disposing of their properties for value in the ordinary course of
business.
Insurance. The indenture requires the Operating Partnership to cause each
of its and its subsidiaries' insurable properties to be insured against loss or
damage at least equal to their then full insurable value with insurers of
recognized responsibility and, if described in the applicable prospectus
supplement, having a specified rating from a recognized insurance rating
service.
Payment of taxes and other claims. The indenture requires the Operating
Partnership to pay or discharge or cause to be paid or discharged, before the
same shall become delinquent,
o all taxes, assessments and governmental charges levied or imposed upon
it or any subsidiary or upon the income, profits or property of the
Operating Partnership or any subsidiary; and
o all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Operating
Partnership or any subsidiary;
provided, however, that the Operating Partnership shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith.
Events of Default, Notice and Waiver
Unless otherwise provided in the applicable prospectus supplement, the
indenture provides that the following events are "events of default" with
respect to any series of debt securities issued thereunder:
(1) default in the payment of any interest on any debt security of such
series when such interest becomes due and payable that continues for a
period of 30 days;
(2) default in the payment of the principal of, or premium or make-whole
amount, if any, on, any debt security of such series when due and
payable;
(3) default in making any sinking fund payment as required for any debt
security of such series;
(4) default in the performance, or breach, of any other covenant or
warranty of the Operating Partnership in the indenture with respect to
the debt securities of such series and continuance of such default or
breach for a period of 60 days after written notice as provided in the
indenture;
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the
Operating Partnership, or by any subsidiary the repayment of which the
Operating Partnership has guaranteed or for which the Operating
Partnership is directly responsible or liable as obligor or guarantor,
having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter
be created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or
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annulled, within a period of 10 days after written notice to the
Operating Partnership as provided in the indenture;
(6) certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee of the Operating
Partnership or any significant subsidiary; and
(7) any other event of default provided with respect to a particular
series of debt securities.
The term "significant subsidiary" has the meaning ascribed to that term in
Regulation S-X promulgated under the Securities Act.
If an event of default under the indenture with respect to debt securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable trustee or the holders of not less than 25% in
principal amount of the debt securities of that series will have the right to
declare the principal amount of, or, if the debt securities of that series are
original issue discount securities or indexed securities, such portion of the
principal amount as may be specified in the terms thereof, and premium or
make-whole amount, if any, on, all the debt securities of that series to be due
and payable immediately by written notice thereof to the Operating Partnership,
and to the applicable trustee if given by the holders; provided, that in the
case of an event of default described under the sixth clause of the preceding
paragraph, acceleration is automatic. However, at any time after such a
declaration of acceleration with respect to debt securities of the series has
been made, but before a judgment or decree for payment of the money due has been
obtained by the applicable trustee, the holders of not less than a majority in
principal amount of outstanding debt securities of the series may rescind and
annul such declaration and its consequences if
o the Operating Partnership shall have deposited with the applicable
trustee all required payments of the principal of, and premium or
make-whole amount, if any, and interest on the debt securities of the
series, plus certain fees, expenses, disbursements and advances of the
applicable trustee, and
o all events of default, other than the non-payment of accelerated
principal, or specified portion thereof and the premium or make-whole
amount, if any, with respect to debt securities of the series have
been cured or waived as provided in the indenture.
The indenture also provides that the holders of not less than a majority in
principal amount of the outstanding debt securities of any series may waive any
past default with respect to such series and its consequences, except a default
o in the payment of the principal of, or premium or make-whole amount,
if any, or interest on any debt security of the series or
o in respect of a covenant or provision contained in the indenture that
cannot be modified or amended without the consent of the holder of
each outstanding debt security affected thereby.
The indenture requires each trustee to give notice to the holders of debt
securities within 90 days of a default under the indenture unless such default
shall have been cured or waived; provided, however, that the trustee may
withhold notice to the holders of any series of debt securities of any default
with respect to the series, except a default in the payment of the principal of,
or premium or make-whole amount, if any, or interest on any debt security of the
series or in the payment of any sinking fund installment in respect of any
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debt security of the series if specified responsible officers of the trustee
consider such withholding to be in the interest of such holders.
The indenture provides that no holders of debt securities of any series may
institute any proceedings, judicial or otherwise, with respect to the indenture
or for any remedy thereunder, except in the case of failure of the applicable
trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an event of default from the holders of not
less than 25% in principal amount of the outstanding debt securities of the
series, as well as an offer of indemnity reasonably satisfactory to it. This
provision will not prevent, however, any holder of debt securities from
instituting suit for the enforcement of payment of the principal of, and premium
or make-whole amount, if any, and interest on the debt securities at their
respective due dates or redemption dates.
The indenture provides that, subject to provisions in the indenture
relating to its duties in case of default, a trustee will be under no obligation
to exercise any of its rights or powers under the indenture at the request or
direction of any holders of any series of debt securities then outstanding under
the indenture, unless such holders shall have offered to the trustee thereunder
reasonable security or indemnity. The holders of not less than a majority in
principal amount of the outstanding debt securities of any series, or of all
debt securities then outstanding under the indenture, as the case may be, shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the applicable trustee, or of exercising any trust
or power conferred upon such trustee. However, a trustee may refuse to follow
any direction which is in conflict with any law or the indenture, which may
involve the trustee in personal liability or which may be unduly prejudicial to
the holders of debt securities of such series not joining therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership will be required to deliver to each trustee a certificate, signed by
one of several specified officers of First Industrial Realty Trust, Inc.,
stating whether or not such officer has knowledge of any default under the
indenture and, if so, specifying each First Industrial Realty Trust, Inc.
default and the nature and status thereof.
Modification of the Indenture
Modifications and amendments of the indenture are 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 affected by such
modification or amendment. However, no modification or amendment may, without
the consent of the holder of each such debt security affected thereby,
o change the stated maturity of the principal of, or any installment of
interest, or premium or make-whole amount, if any, on, any debt
security;
o reduce the principal amount 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 debt security;
o change the place of payment, or the coin or currency, for payment of
principal of, or premium or make-whole amount, if any, or interest on
any debt security;
o impair the right to institute suit for the enforcement of any payment
on or with respect to any debt security;
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o 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; or
o 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 the 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
Operating Partnership with certain restrictive covenants of the indenture.
Modifications and amendments of the indenture are permitted to be made by
the Operating Partnership and the respective trustee thereunder without the
consent of any holder of debt securities for any of the following purposes:
o to evidence the succession of another person to the Operating
Partnership as obligor under the indenture;
o to add to the covenants of the Operating Partnership for the benefit
of the holders of all or any series of debt securities or to surrender
any right or power conferred upon the Operating Partnership in the
indenture;
o to add events of default for the benefit of the holders of all or any
series of debt securities;
o 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;
o 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
that are entitled to the benefit of such provision;
o to secure the debt securities;
o to establish the form or terms of debt securities of any series;
o 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;
o 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 in
any material respect; or
o to supplement any of the provisions of the indenture to the extent
necessary to permit or facilitate defeasance and discharge of any
series of the 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.
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The indenture provides that in determining whether the holders of the
requisite principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of debt
securities,
o the principal amount of an original issue discount security that shall
be deemed to be outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon declaration of acceleration of the maturity
thereof,
o the principal amount of any debt security denominated in a foreign
currency that shall be deemed outstanding shall be the U.S. dollar
equivalent, determined on the issue date for the debt security, of the
principal amount of the debt security, or, in the case of an original
issue discount security, the U.S. dollar equivalent on the issue date
of the debt security of the amount determined as provided in the
subparagraph immediately above,
o the principal amount of an indexed security that shall be deemed
outstanding shall be the principal face amount of such indexed
security at original issuance, unless otherwise provided with respect
to such indexed security pursuant to the indenture, and
o debt securities owned by the Operating Partnership or any other
obligor upon the debt securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded.
The indenture contains provisions for convening meetings of the holders of
debt securities of a series. A meeting will be permitted to be called at any
time by the applicable trustee, and also, upon request, by the Operating
Partnership or the holders of at least 25% in principal amount of the
outstanding debt securities of the series, in any case upon notice given as
provided in the indenture. Except for any consent that must be given by the
holder of each debt security affected by certain modifications and amendments of
the indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding debt
securities of that series. However, except as referred to above, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority, in principal amount of the
outstanding debt securities of a series may be adopted at a meeting or adjourned
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding debt securities of that series. Any resolution passed or
decision taken at any meeting of holders of debt securities of any series duly
held in accordance with the indenture will be binding on all holders of debt
securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding debt securities
of a series. However, if any action is to be taken at the meeting with respect
to a consent or waiver that may be given by the holders of not less than a
specified percentage in principal amount of the outstanding debt securities of a
series, the persons holding or representing such specified percentage in
principal amount of the outstanding debt securities of the series will
constitute a quorum.
Notwithstanding the foregoing provisions, the indenture provides that if
any action is to be taken at a meeting of holders of debt securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that the indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding debt securities affected thereby, or of the holders of
such series and one or more additional series:
o there shall be no minimum quorum requirement for such meeting, and
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o the principal amount of the outstanding debt securities of the series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given or taken
under the indenture.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus supplement, the
Operating Partnership will be permitted, at its option, to discharge certain
obligations to holders of any series of debt securities issued under the
indenture that have not already been delivered to the applicable trustee for
cancellation and that either have become due and payable or will become due and
payable within one year, or scheduled for redemption within one year, by
irrevocably depositing with the applicable trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which the debt securities are payable in an amount sufficient to
pay the entire indebtedness on the debt securities in respect of principal, and
premium or make-whole amount, if any, and interest to the date of such deposit,
if the debt securities have become due and payable, or to the stated maturity or
redemption date, as the case may be.
The indenture provides that, unless otherwise provided in the applicable
prospectus supplement, the Operating Partnership may elect either
o to defease and be discharged from any and all obligations with respect
to the debt securities, except for the obligation to pay additional
amounts, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on the debt
securities and the obligations to register the transfer or exchange of
the debt securities, to replace temporary or mutilated, destroyed,
lost or stolen debt securities, to maintain an office or agency in
respect of the debt securities, and to hold moneys for payment in
trust, or "defeasance," or
o to be released from certain obligations with respect to the debt
securities under the indenture, including the restrictions described
under "--Certain Covenants" or, if provided in the applicable
prospectus supplement, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not
constitute an event of default with respect to the debt securities, or
"covenant defeasance,"
in either case upon the irrevocable deposit by the Operating Partnership with
the applicable trustee, in trust, of an amount, in such currency or currencies,
currency unit or units or composite currency or currencies in which the debt
securities are payable at stated maturity, or government obligations as defined
below, or both, applicable to the debt securities, which through the scheduled
payment of principal and interest in accordance with their terms will provide
money in an amount sufficient to pay the principal of, and premium or make-whole
amount, if any, and interest on the debt securities, and any mandatory sinking
fund or analogous payments thereon, on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the applicable trustee an
opinion of counsel, as specified in the indenture, to the effect that the
holders of the debt securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and the opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a
ruling received from the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the indenture.
In the event of such defeasance, the holders of the debt securities would
thereafter be able to look only to such trust fund for payment of principal, and
premium or make-whole amount, if any, and interest.
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"Government obligations" means securities that are
o direct obligations of the United States of America or the government
which issued the foreign currency in which the debt securities of a
particular series are payable, for the payment of which its full faith
and credit is pledged or
o obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the foreign currency in which the debt
securities of the series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government,
which, in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such government obligation or a
specific payment of interest on or principal of any such government obligation
held by such custodian for the account of the holder of a depository receipt,
provided that except as required by law, the custodian is not authorized to make
any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the government
obligation or the specific payment of interest on or principal of the government
obligation evidenced by such depository receipt.
Unless otherwise provided in the applicable prospectus supplement, if after
the Operating Partnership has deposited funds and/or government obligations to
effect defeasance or covenant defeasance with respect to debt securities of any
series,
o the holder of a debt security of the series is entitled to, and does,
elect pursuant to the indenture or the terms of the debt security to
receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of the
debt security, or
o a conversion event, as defined below, occurs in respect of the
currency, currency unit or composite currency in which such deposit
has been made,
the indebtedness represented by the debt security will be deemed to have been,
and will be, fully discharged and satisfied through the payment of the principal
of, and premium or make-whole amount, if any, and interest on the debt security
as they become due out of the proceeds yielded by converting the amount so
deposited in respect of the debt security into the currency, currency unit or
composite currency in which the debt security becomes payable as a result of
such election or such cessation of usage based on the applicable market exchange
rate.
"Conversion event" means the cessation of use of
o a currency, currency unit or composite currency both by the government
of the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or
within the international banking community,
o the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or
o any currency unit or composite currency other than the ECU for the
purposes for which it was established.
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Unless otherwise provided in the applicable prospectus supplement, all payments
of principal of, and premium or make-whole amount, if any, and interest on any
debt security that is payable in a foreign currency that ceases to be used by
its government of issuance shall be made in U.S. dollars.
In the event the Operating Partnership effects covenant defeasance with
respect to any debt securities and the debt securities are declared due and
payable because of the occurrence of any event of default other than the event
of default described in clause (4) under "--Events of Default, Notice and
Waiver" with respect to specified sections of the indenture, which sections
would no longer be applicable to the debt securities, or described in clause (7)
under "--Events of Default, Notice and Waiver" with respect to any other
covenant as to which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which the debt securities are
payable, and government obligations on deposit with the applicable trustee, will
be sufficient to pay amounts due on the debt securities at the time of their
stated maturity but may not be sufficient to pay amounts due on the debt
securities at the time of the acceleration resulting from such event of default.
However, the Operating Partnership would remain liable to make payment of those
amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
No Conversion Rights
The debt securities will not be convertible into or exchangeable for any
capital stock of First Industrial Realty Trust, Inc. or equity interest in the
Operating Partnership.
Global Securities
The debt securities of a series may be issued in whole or in part in book-
entry form consisting of one or more global securities that will be deposited
with, or on behalf of, a depositary identified in the applicable prospectus
supplement relating to the series. Global securities may be issued in either
registered or bearer form and in either temporary or permanent form. The
specific terms of the depositary arrangement with respect to a series of debt
securities will be described in the applicable prospectus supplement relating to
the series.
Payment and Paying Agents
Unless otherwise provided in the applicable prospectus supplement, the
principal of, and applicable premium or make-whole amount, if any, and interest
on any series of debt securities will be payable at the corporate trust office
of the trustee, the address of which will be stated in the applicable prospectus
supplement. However, at the option of the Operating Partnership, payment of
interest may be made by check mailed to the address of the person entitled
thereto as it appears in the applicable register for the debt securities or by
wire transfer of funds to such person at an account maintained within the United
States.
All moneys paid by the Operating Partnership to a paying agent or a trustee
for the payment of the principal of or any premium, make-whole amount or
interest on any debt security which remain unclaimed at the end of two years
after such principal, premium, make-whole amount or interest has become due and
payable will be repaid to the Operating Partnership, and the holder of the debt
security thereafter may look only to the Operating Partnership for payment
thereof.
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DESCRIPTION OF PREFERRED STOCK
The following is a summary of the material terms of our preferred stock.
You should also read our articles of incorporation and bylaws, which are
incorporated by reference to the registration statement of which this prospectus
is a part.
General
Under our articles of incorporation, First Industrial Realty Trust, Inc.
has authority to issue 10 million shares of its preferred stock, par value $.01
per share. The preferred stock may be issued from time to time, in one or more
series, as authorized by First Industrial Realty Trust, Inc.'s board of
directors. Prior to issuance of shares of each series, First Industrial Realty
Trust, Inc.'s board of directors is required by the MGCL and our articles of
incorporation to fix for each series, subject to the provisions of the articles
of incorporation regarding excess stock, par value $.01 per share, the terms,
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications and terms or
conditions of redemption of those shares as may be permitted by Maryland law.
These rights, powers, restrictions and limitations could include the right to
receive specified dividend payments and payments on liquidation prior to any
payments to holders of common stock or other capital stock of First Industrial
Realty Trust, Inc. ranking junior to the preferred stock. The outstanding shares
of preferred stock are, and additional shares of preferred stock will be, when
issued, fully paid and nonassessable and will have no preemptive rights. First
Industrial Realty Trust, Inc.'s board of directors could authorize the issuance
of shares of preferred stock with terms and conditions that could have the
effect of discouraging a takeover or other transaction that holders of common
stock might believe to be in their best interests or in which holders of some,
or a majority, of the shares of common stock might receive a premium for their
shares over the then market price of those shares of common stock.
Outstanding Preferred Stock
At June 1, 2001, First Industrial Realty Trust, Inc. had outstanding 40,000
shares of Series B preferred stock, 20,000 shares of Series C preferred stock,
50,000 shares of Series D preferred stock and 30,000 shares of Series E
preferred stock, constituting all of First Industrial Realty Trust, Inc.'s
outstanding preferred stock. The terms of the Series B, Series C, Series D and
Series E preferred stock provide for a preference as to the payment of dividends
over shares of common stock and any other capital stock ranking junior to the
Series B preferred stock, Series C preferred stock, Series D preferred stock and
Series E preferred stock, and for cumulative quarterly dividends at the rate of
$218.75, $215.625, $198.75 and $197.50, respectively, per share per year. On and
after May 14, 2002, June 6, 2007, February 4, 2003 and March 18, 2003,
respectively, the Series B, Series C, Series D and Series E preferred stock,
respectively, are subject to redemption, in each case in whole or in part, at
the option of First Industrial Realty Trust, Inc., at a cash redemption price of
$2,500.00 per share, $2,500.00 per share, $2,500.00 per share and $2,500.00 per
share, respectively, plus accrued and unpaid dividends. The Series B, Series C,
Series D and Series E preferred stock rank on a parity as to payment of
dividends and amounts upon liquidation.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of First Industrial Realty Trust, Inc., the holders of the Series B,
Series C, Series D and Series E preferred stock will be entitled to receive out
of First Industrial Realty Trust, Inc.'s assets available for distribution to
stockholders, before any distribution of assets is made to holders of common
stock or any other shares of capital stock ranking, as to distributions, junior
to the Series B, Series C, Series D and Series E preferred, liquidating
distributions in the amount of $2,500.00 per share, $2,500.00 per share, $25.00
per share and $25.00 per share, respectively, plus all accrued and unpaid
dividends.
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Except as expressly required by law and in some other limited
circumstances, the holders of the preferred stock are not entitled to vote. The
consent of holders of at least 66% of the outstanding preferred stock and any
other series of preferred stock ranking on a parity with the outstanding
preferred stock, voting as a single class, is required to authorize another
class of shares senior to the outstanding preferred stock. The affirmative vote
or consent of the holders of at least 66% of the outstanding shares of each
series of preferred stock is required to amend or repeal any provision of, or
add any provision to, our articles of incorporation, including the articles
supplementary relating to that series of preferred stock, if that action would
materially and adversely alter or change the rights, preferences or privileges
of that series of preferred stock.
Future Series of Preferred Stock
The following is a description of the general terms and provisions of the
preferred stock to which any prospectus supplement may relate. The statements
below describing the preferred stock are in all respects subject to and
qualified in their entirety by reference to the applicable provisions of our
articles of incorporation and bylaws and any applicable amendment to our
articles of incorporation designating terms of a series of preferred stock.
Any prospectus supplement relating to a future series of the preferred
stock will contain specific terms, including:
(1) The title and stated value of the preferred stock;
(2) The number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred stock;
(4) The date from which dividends on the preferred stock shall accumulate,
if applicable;
(5) The procedures for any auction and remarketing, if any, for the
preferred stock;
(6) The provision for a sinking fund, if any, for the preferred stock;
(7) The provision for redemption, if applicable, of the preferred stock;
(8) Any listing of the preferred stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which the preferred
stock will be convertible into common stock, including the conversion
price or manner of calculation of the conversion price;
(10) Any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock;
(11) A discussion of federal income tax considerations applicable to the
preferred stock;
(12) The relative ranking and preference of the preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of First Industrial Realty Trust, Inc.;
(13) Any limitations on issuance of any series of preferred stock ranking
senior to or on a parity with the series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of First Industrial Realty Trust, Inc.; and
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(14) Any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of
First Industrial Realty Trust, Inc. as a REIT.
Unless otherwise specified in the prospectus supplement, the preferred
stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of First Industrial Realty Trust, Inc., rank:
o senior to all classes or series of common stock, and to all equity
securities ranking junior to that preferred stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up
of First Industrial Realty Trust, Inc.;
o on a parity with all equity securities issued by First Industrial
Realty Trust, Inc. the terms of which specifically provide that those
equity securities rank on a parity with the preferred stock with
respect to dividend rights or rights upon liquidation, dissolution or
winding up of First Industrial Realty Trust, Inc.; and
o junior to all equity securities issued by First Industrial Realty
Trust, Inc. the terms of which specifically provide that those equity
securities rank senior to the preferred stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of First
Industrial Realty Trust, Inc.
The term "equity securities" does not include convertible debt securities.
Dividends
Holders of the preferred stock of each series will be entitled to receive,
when, as and if declared by First Industrial Realty Trust, Inc.'s board of
directors, out of First Industrial Realty Trust, Inc.'s assets legally available
for payment, cash dividends at rates and on dates as will be set forth in the
applicable prospectus supplement. Each dividend shall be payable to holders of
record as they appear on the share transfer books of First Industrial Realty
Trust, Inc. on the record dates as shall be fixed by First Industrial Realty
Trust, Inc.'s board of directors.
Dividends on any series of the preferred stock may be cumulative or
non-cumulative, as provided in the applicable prospectus supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable prospectus supplement. If First Industrial Realty Trust, Inc.'s board
of directors fails to declare a dividend payable on a dividend payment date on
any series of the preferred stock for which dividends are non-cumulative, then
the holders of that series of the preferred stock will have no right to receive
a dividend in respect of the dividend period ending on that dividend payment
date, and First Industrial Realty Trust, Inc. will have no obligation to pay the
dividend accrued for that period, whether or not dividends on that series are
declared payable on any future dividend payment date.
If preferred stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of First
Industrial Realty Trust, Inc. of any other series ranking, as to dividends, on a
parity with or junior to the preferred stock of that series for any period
unless:
o if that series of preferred stock has a cumulative dividend, full
cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment is set apart for
that payment on the preferred stock of that series for all past
dividend periods and the then current dividend period; or
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o if that series of preferred stock does not have a cumulative dividend,
full dividends for the then current dividend have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for that payment on
the preferred stock of that series.
When dividends are not paid in full, or a sum sufficient for full payment is not
set apart, upon preferred stock of any series and the shares of any other series
of preferred stock ranking on a parity as to dividends with the preferred stock
of that series, all dividends declared upon preferred stock of that series and
any other series of preferred stock ranking on a parity as to dividends with
that preferred stock will be declared pro rata so that the amount of dividends
declared per share of preferred stock of that series and other series of
preferred stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the preferred stock of that series, which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if that preferred stock does not have a cumulative dividend, and the
other series of preferred stock bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on preferred stock of that series that may be in arrears.
Except as provided in the immediately preceding paragraph, unless:
o if a series of preferred stock has a cumulative dividend, full
cumulative dividends on the preferred stock of that series have been
or contemporaneously are declared and paid or declared and a sum
sufficient for that payment is set apart for payment for all past
dividend periods and the then current dividend period, and
o if a series of preferred stock does not have a cumulative dividend,
full dividends on the preferred stock of that series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for that payment is set apart for payment for the then
current dividend period,
no dividends, other than in shares of common stock or other shares of capital
stock ranking junior to the preferred stock of that series as to dividends and
upon liquidation, shall be declared or paid or set aside for payment nor shall
any other distribution be declared or made upon the common stock, or any other
capital stock of First Industrial Realty Trust, Inc. ranking junior to or on a
parity with the preferred stock of that series as to dividends or upon
liquidation, nor shall any shares of common stock, or any other shares of
capital stock of First Industrial Realty Trust, Inc. ranking junior to or on a
parity with the preferred stock of that series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration,
or any moneys be paid to or made available for a sinking fund for the redemption
of any shares, by First Industrial Realty Trust, Inc., except by conversion into
or exchange for other capital stock of First Industrial Realty Trust, Inc.
ranking junior to the preferred stock of that series as to dividends and upon
liquidation.
Any dividend payment made on shares of a series of preferred stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of that series which remain payable.
Redemption
If provided in the applicable prospectus supplement, the preferred stock
will be subject to mandatory redemption or redemption at the option of First
Industrial Realty Trust, Inc., as a whole or in part, in each case upon the
terms, at the times and at the redemption prices set forth in, the applicable
prospectus supplement.
The prospectus supplement relating to a series of preferred stock that is
subject to mandatory redemption will specify the number of shares of the
preferred stock that will be redeemed by First Industrial Realty Trust, Inc. in
each year commencing after a date to be specified, at a redemption price per
share to be speci-
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fied, together with an amount equal to all accrued and unpaid dividends, which
will not, if that preferred stock does not have a cumulative dividend, include
any accumulation in respect of unpaid dividends for prior dividend periods, to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable prospectus supplement. If the
redemption price for preferred stock of any series is payable only from the net
proceeds of the issuance of shares of capital stock of First Industrial Realty
Trust, Inc., the terms of that preferred stock may provide that, if no shares of
capital stock shall have been issued or to the extent the net proceeds from any
issuance are insufficient to pay in full the aggregate redemption price then
due, the preferred stock will automatically and mandatorily be converted into
the applicable shares of capital stock of First Industrial Realty Trust, Inc.
pursuant to conversion provisions specified in the applicable prospectus
supplement.
However, unless
o if a series of preferred stock has a cumulative dividend, full
cumulative dividends on all shares of that series of preferred stock
will have been or contemporaneously are declared and paid or declared
and a sum sufficient for that payment set apart for payment for all
past dividend periods and the then current dividend period, and
o if a series of preferred stock does not have a cumulative dividend,
full dividends on all shares of the preferred stock of that series
have been or contemporaneously are declared and paid or declared and a
sum sufficient for that payment set apart for payment for the then
current dividend period,
no shares of the series of preferred stock will be redeemed unless all
outstanding shares of preferred stock of that series are simultaneously
redeemed. However, the preceding shall not prevent the purchase or acquisition
of preferred stock of that series to preserve the REIT status of First
Industrial Realty Trust, Inc. or pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of preferred stock of
that series.
In addition, unless
o if the series of preferred stock has a cumulative dividend, full
cumulative dividends on all outstanding shares of that series of
preferred stock have been or contemporaneously are declared and paid
or declared and a sum sufficient for that payment set apart for
payment for all past dividend periods and the then current dividend
period, and
o if the series of preferred stock does not have a cumulative dividend,
full dividends on the preferred stock of that series have been or
contemporaneously are declared and paid or declared and a sum
sufficient for that payment set apart for payment for the then current
dividend period,
First Industrial Realty Trust, Inc. will not purchase or otherwise acquire
directly or indirectly any shares of preferred stock of that series, except by
conversion into or exchange for capital shares of First Industrial Realty Trust,
Inc. ranking junior to the preferred stock of that series as to dividends and
upon liquidation. However, the preceding shall not prevent the purchase or
acquisition of shares of preferred stock of that series to preserve the REIT
status of First Industrial Realty Trust, Inc. or pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
preferred stock of that series.
If fewer than all of the outstanding shares of preferred stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by First Industrial Realty Trust, Inc. Those shares may be redeemed
ratably from the holders of record of those shares in proportion to the number
of those shares
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held or for which redemption is requested by that holder, with adjustments to
avoid redemption of fractional shares, or by any other equitable manner
determined by First Industrial Realty Trust, Inc.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of preferred stock of
any series to be redeemed at the address shown on the stock transfer books of
First Industrial Realty Trust, Inc. Each notice shall state:
o the redemption date;
o the number of shares and series of the preferred stock to be redeemed;
o the redemption price;
o the place or places where certificates for the preferred stock are to
be surrendered for payment of the redemption price;
o that dividends on the shares to be redeemed will cease to accrue on
the redemption date; and
o the date upon which the holder's conversion rights, if any, as to
those shares shall terminate.
If fewer than all the shares of preferred stock of any series are to be
redeemed, the notice mailed to each holder of preferred stock shall also specify
the number of shares of preferred stock to be redeemed from each holder. If
notice of redemption of any preferred stock has been given and if the funds
necessary for the redemption have been set aside by First Industrial Realty
Trust, Inc. in trust for the benefit of the holders of any preferred stock
called for redemption, then from and after the redemption date dividends will
cease to accrue on the preferred stock called for redemption, and all rights of
the holders of those shares will terminate, except the right to receive the
redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of First Industrial Realty Trust, Inc., then, before any
distribution or payment shall be made to the holders of any common stock or any
other class or series of capital stock of First Industrial Realty Trust, Inc.
ranking junior to the preferred stock in the distribution of assets upon any
liquidation, dissolution or winding up of First Industrial Realty Trust, Inc.,
the holders of each series of preferred stock shall be entitled to receive out
of assets of First Industrial Realty Trust, Inc. legally available for
distribution to stockholders liquidating distributions in the amount of the
liquidation preference per share, if any, set forth in the applicable prospectus
supplement, plus an amount equal to all dividends accrued and unpaid thereon,
which shall not include any accumulation in respect of unpaid noncumulative
dividends for prior dividend periods. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of preferred
stock will have no right or claim to any of First Industrial Realty Trust,
Inc.'s remaining assets. In the event that, upon any voluntary or involuntary
liquidation, dissolution or winding up, First Industrial Realty Trust, Inc.'s
available assets are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of preferred stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of
First Industrial Realty Trust, Inc. ranking on a parity with the preferred stock
in the distribution of assets, then the holders of the preferred stock and those
other classes or series of capital stock will share ratably in the distribution
of assets in proportion to the full liquidating distributions to which they
would otherwise be respectively entitled.
If liquidating distributions will have been made in full to all holders of
preferred stock, First Industrial Realty Trust, Inc.'s remaining assets will be
distributed among the holders of any other classes or series of capital stock
ranking junior to the preferred stock upon liquidation, dissolution or winding
up, according to
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their respective rights and preferences and in each case according to their
respective number of shares. For these purposes, the consolidation or merger of
First Industrial Realty Trust, Inc. with or into any other corporation, trust or
entity, or the sale, lease or conveyance of all or substantially all of the
property or business of First Industrial Realty Trust, Inc., will not be deemed
to constitute a liquidation, dissolution or winding up of First Industrial
Realty Trust, Inc.
Voting Rights
Holders of the preferred stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable prospectus supplement.
Unless provided otherwise for any series of preferred stock, so long as any
shares of preferred stock of a series remain outstanding, First Industrial
Realty Trust, Inc. will not, without the affirmative vote or consent of the
holders of at least two-thirds of the shares of that series of preferred stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting, each series voting separately as a class:
o authorize or create, or increase the authorized or issued amount of,
any class or series of capital stock ranking prior to that series of
preferred stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up or
reclassify any authorized capital stock of First Industrial Realty
Trust, Inc. into those shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to
purchase any of those shares; or
o amend, alter or repeal the provisions of our articles of incorporation
or the designating amendment for that series of preferred stock,
whether by merger, consolidation or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power of
that series of preferred stock or the holders of that series of
preferred stock.
However, with respect to the occurrence of any of the events set forth in the
second subparagraph above, so long as the preferred stock remains outstanding
with its terms materially unchanged, taking into account that upon the
occurrence of an event, First Industrial Realty Trust, Inc. may not be the
surviving entity, the occurrence of any such event shall not be deemed to
materially and adversely affect the rights, preferences, privileges or voting
power of holders of preferred stock. Further,
o any increase in the amount of the authorized preferred stock or the
creation or issuance of any other series of preferred stock, or
o any increase in the amount of authorized shares of that series or any
other series of preferred stock, in each case ranking on a parity with
or junior to the preferred stock of that series with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, will not be deemed to materially and
adversely affect the rights, preferences, privileges or voting powers.
These voting provisions will not apply if, at or prior to the time when the
act with respect to which that vote would otherwise be required shall be
effected, all outstanding shares of that series of preferred stock shall have
been redeemed or called for redemption and sufficient funds will have been
deposited in trust to effect the redemption.
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Conversion Rights
The terms and conditions, if any, upon which any series of preferred stock
is convertible into common stock will be set forth in the applicable prospectus
supplement. The terms will include:
o the number of shares of common stock into which the shares of
preferred stock are convertible,
o the conversion price (or manner of calculating the conversion price),
o the conversion period,
o provisions as to whether conversion will be at the option of the
holders of the preferred stock or First Industrial Realty Trust, Inc.,
o the events requiring an adjustment of the conversion price, and
o provisions affecting conversion in the event of the redemption of that
series of preferred stock.
Restrictions on Ownership
For us to qualify as a REIT under the Code, not more than 50% in value of
our outstanding capital stock may be owned, directly or indirectly, by five or
fewer individuals, as defined in the Code to include certain entities, during
the last half of a taxable year. To assist First Industrial Realty Trust, Inc.
in meeting this requirement, First Industrial Realty Trust, Inc. may take
certain actions to limit the beneficial ownership, directly or indirectly, by
individuals of First Industrial Realty Trust, Inc.'s outstanding equity
securities, including any preferred stock. Therefore, the designating amendment
for each series of preferred stock may contain provisions restricting the
ownership and transfer of the preferred stock. The applicable prospectus
supplement will specify any additional ownership limitation relating to a series
of preferred stock. See "Restrictions on Transfers of Capital Stock."
Transfer Agent
The transfer agent and registrar for the preferred stock will be set forth
in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
First Industrial Realty Trust, Inc. may, at its option, elect to offer
depositary shares rather than full shares of preferred stock. In the event that
option is exercised, each of the depositary shares will represent ownership of
and entitlement to all rights and preferences of a fraction of a share of
preferred stock of a specified series, including dividend, voting, redemption
and liquidation rights. The applicable fraction will be specified in the
prospectus supplement. The shares of preferred stock represented by the
depositary shares will be deposited with a depositary named in the applicable
prospectus supplement, under a deposit agreement, among First Industrial Realty
Trust, Inc., the depositary and the holders of the depositary receipts.
Certificates evidencing depositary shares will be delivered to those persons
purchasing depositary shares in the offering. The depositary will be the
transfer agent, registrar and dividend disbursing agent for the depositary
shares. Holders of depositary receipts agree to be bound by the deposit
agreement, which requires holders to take actions, such as filing proof of
residence and paying charges.
The summary of terms of the depositary shares contained in this prospectus
does not purport to be complete and is subject to, and qualified in its entirety
by, the provisions of the deposit agreement, our articles
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of incorporation and the form of designating amendment for the applicable series
of preferred stock. All material terms of the depository shares, except those
disclosed in the applicable prospectus supplement, are described in this
prospectus.
Dividends
The depositary will distribute all cash dividends or other cash
distributions received in respect of the series of preferred stock represented
by the depositary shares to the record holders of depositary receipts in
proportion to the number of depositary shares owned by those holders on the
relevant record date, which will be the same date as the record date fixed by
First Industrial Realty Trust, Inc. for the applicable series of preferred
stock. The depositary, however, will distribute only an amount as can be
distributed without attributing to any depositary share a fraction of one cent,
and any balance not so distributed will be added to and treated as part of the
next sum received by the depositary for distribution to record holders of
depositary receipts then outstanding.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
so entitled, in proportion, as nearly as may be practicable, to the number of
depositary shares owned by those holders on the relevant record date, unless the
depositary determines, after consultation with First Industrial Realty Trust,
Inc., that it is not feasible to make the distribution, in which case the
depositary may, with First Industrial Realty Trust, Inc.'s approval, adopt any
other method for that distribution as it deems equitable and appropriate,
including the sale of the property, at place or places and upon terms that it
may deem equitable and appropriate, and distribution of the net proceeds from
that sale to the holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any preferred stock converted into excess stock.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the affairs
of First Industrial Realty Trust, Inc., whether voluntary or involuntary, the
holders of each depositary share will be entitled to the fraction of the
liquidation preference accorded each share of the applicable series of preferred
stock, as set forth in the prospectus supplement.
Redemption
If the series of preferred stock represented by the applicable series of
depositary shares is redeemable, those depositary shares will be redeemed from
the proceeds received by the depositary resulting from the redemption, in whole
or in part, of preferred stock held by the depositary. Whenever First Industrial
Realty Trust, Inc. redeems any preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number of depositary
shares representing the redeemed preferred stock. The depositary will mail the
notice of redemption promptly upon receipt of notice from First Industrial
Realty Trust, Inc. and not less than 30 nor more than 60 days prior to the date
fixed for redemption of the preferred stock and the depositary shares to the
record holders of the depositary receipts.
Voting
Promptly upon receipt of notice of any meeting at which the holders of the
series of preferred stock represented by the applicable series of depositary
shares are entitled to vote, the depositary will mail the information contained
in the notice of meeting to the record holders of the depositary receipts as of
the record date for the meeting. Each record holder of depositary receipts will
be entitled to instruct the depositary as to
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the exercise of the voting rights pertaining to the number of shares of
preferred stock represented by the record holder's depositary shares. The
depositary will endeavor, insofar as practicable, to vote the preferred stock
represented by depositary shares in accordance with those instructions, and
First Industrial Realty Trust, Inc. will agree to take all action which may be
deemed necessary by the depositary in order to enable the depositary to do so.
The depositary will abstain from voting any of the preferred stock to the extent
that it does not receive specific instructions from the holders of depositary
receipts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the
depositary, upon payment of any unpaid amount due the depositary, and subject to
the terms of the deposit agreement, the owner of the depositary shares evidenced
thereby is entitled to delivery of the number of whole shares of preferred stock
and all money and other property, if any, represented by the depositary shares.
Partial shares of preferred stock will not be issued. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of whole shares of preferred
stock to be withdrawn, the depositary will deliver to that holder at the same
time a new depositary receipt evidencing the excess number of depositary shares.
Holders of preferred stock who are withdrawn will not thereafter be entitled to
deposit their shares under the deposit agreement or to receive depositary
receipts evidencing their depositary shares.
Amendment and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time and from time to time be
amended by agreement between First Industrial Realty Trust, Inc. and the
depositary. However, any amendment which materially and adversely alters the
rights of the holders of depositary shares, other than any change in fees, will
not be effective unless that amendment has been approved by at least a majority
of the depositary shares then outstanding. No amendment to the deposit agreement
may impair the right, subject to the terms of the deposit agreement, of any
owner of any depositary shares to surrender the depositary receipt evidencing
their depositary shares with instructions to the depositary to deliver to the
holder the preferred stock and all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable law.
The deposit agreement will be permitted to be terminated by First
Industrial Realty Trust, Inc. upon not less than 30 days prior written notice to
the applicable depositary if:
o termination is necessary to preserve First Industrial Realty Trust,
Inc.'s status as a REIT, or
o a majority of each series of preferred stock affected by termination
consents to termination, whereupon the depositary will be required to
deliver or make available to each holder of depositary receipts, upon
surrender of the depositary receipts held by that holder, the number
of whole or fractional shares of preferred stock as are represented by
the depositary shares evidenced by those depositary receipts together
with any other property held by the depositary with respect to those
depositary receipts.
First Industrial Realty Trust, Inc. will agree that if the deposit agreement is
terminated to preserve status as a REIT, then First Industrial Realty Trust,
Inc. will use its best efforts to list the preferred stock issued upon surrender
of the related depositary shares on a national securities exchange.
In addition, the deposit agreement will automatically terminate if:
o all outstanding depositary shares thereunder shall have been redeemed,
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o there shall have been a final distribution in respect of the related
preferred stock in connection with any liquidation, dissolution or
winding up of First Industrial Realty Trust, Inc. and that
distribution shall have been distributed to the holders of depositary
receipts evidencing the depositary shares representing that preferred
stock, or
o each share of the related preferred stock will have been converted
into stock of First Industrial Realty Trust, Inc. not represented by
depositary shares.
Charges of Depositary
First Industrial Realty Trust, Inc. will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. First Industrial Realty Trust, Inc. will pay charges of the
depositary in connection with the initial deposit of the preferred stock and
initial issuance of the depositary shares, and redemption of the preferred stock
and all withdrawals of preferred stock by owners of depositary shares. Holders
of depositary receipts will pay transfer, income and other taxes and
governmental charges and other charges as are provided in the deposit agreement
to be for their accounts. In certain circumstances, the depositary may refuse to
transfer depositary shares, may withhold dividends and distributions and sell
the depositary shares evidenced by those depositary receipts if those charges
are not paid.
Miscellaneous
The depositary will forward to the holders of depositary receipts all
reports and communications from First Industrial Realty Trust, Inc. that are
delivered to the Depositary and which First Industrial Realty Trust, Inc. is
required to furnish to the holders of the preferred stock. In addition, the
depositary will make available for inspection by holders of depositary receipts
at the principal office of the depositary, and at other places as it may from
time to time deem advisable, any reports and communications received from First
Industrial Realty Trust, Inc. that are received by the Depositary as the holder
of preferred stock.
Neither the depositary nor First Industrial Realty Trust, Inc. assumes any
obligation or will be subject to any liability under the deposit agreement to
holders of depositary receipts other than for its negligence or willful
misconduct. Neither the depositary nor First Industrial Realty Trust, Inc. will
be liable if it is prevented or delayed by law or any circumstance beyond its
control in performing its obligations under the deposit agreement. The
obligations of First Industrial Realty Trust, Inc. and the depositary under the
deposit agreement will be limited to performance in good faith of their duties
under the deposit agreement, and they will not be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares or preferred
stock unless satisfactory indemnity is furnished. First Industrial Realty Trust,
Inc. and the depositary may rely on written advice of counsel or accountants, on
information provided by holders of the depositary receipts or other persons
believed in good faith to be competent to give that information and on documents
believed to be genuine and to have been signed or presented by the proper party
or parties.
In the event the depositary receives conflicting claims, requests or
instructions from any holders of depositary receipts, on the one hand, and First
Industrial Realty Trust, Inc., on the other hand, the depositary shall be
entitled to act on those claims, requests or instructions received from First
Industrial Realty Trust, Inc.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to First Industrial
Realty Trust, Inc. notice of its election to do so, and First Industrial Realty
Trust, Inc. may at any time remove the depositary. Any resignation or removal
will take effect upon the appointment of a successor depositary and its
acceptance of that appointment. The successor depositary must be appointed
within 60 days after delivery of the notice for resigna-
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tion or removal and must be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $150,000,000.
Federal Income Tax Consequences
Owners of depositary shares will be treated for Federal income tax purposes
as if they were owners of the preferred stock represented by depositary shares.
Accordingly, those owners will be entitled to take into account, for Federal
income tax purposes, income and deductions to which they would be entitled if
they were holders of the preferred stock. In addition,
o no gain or loss will be recognized for Federal income tax purposes
upon the withdrawal of preferred stock in exchange for depositary
shares,
o the tax basis of each share of preferred stock to an exchanging owner
of depositary shares will, upon exchange, be the same as the aggregate
tax basis of the depositary shares exchanged therefor, and
o the holding period for preferred stock in the hands of an exchanging
owner of depositary shares will include the period during which that
person owned those depositary shares.
DESCRIPTION OF COMMON STOCK
The following is a summary of the material terms of our common stock. You
should read our articles of incorporation and bylaws, which are incorporated by
reference to the registration statement of which this prospectus is a part.
General
Under our articles of incorporation, First Industrial Realty Trust, Inc.
has authority to issue 100 million shares of its common stock, par value $.01
per share. Under Maryland law, stockholders generally are not responsible for
the corporation's debts or obligations. At June 29, 2001 we had outstanding
39,534,652 shares of common stock.
Terms
Subject to the preferential rights of any other shares or series of stock,
including preferred stock outstanding from time to time, and to the provisions
of our articles of incorporation regarding excess stock, common stock holders
will be entitled to receive dividends on shares of common stock if, as and when
authorized and declared by our board of directors out of assets legally
available for that purpose. Subject to the preferential rights of any other
shares or series of stock, including preferred stock outstanding from time to
time, and to the provisions of our articles of incorporation regarding excess
stock, common stockholders will share ratably in the assets of First Industrial
Realty Trust, Inc. legally available for distribution to its stockholders in the
event of its liquidation, dissolution or winding up after payment of, or
adequate provision for, all known debts and liabilities of First Industrial
Realty Trust, Inc. For a discussion of excess stock, please see "Restrictions on
Transfers of Capital Stock."
Subject to the provisions of our articles of incorporation regarding excess
stock, each outstanding share of common stock entitles the holder to one vote on
all matters submitted to a vote of stockholders, including the election of
directors, and, except as otherwise required by law or except as provided with
respect to any other class or series of stock, common stock holders will possess
the exclusive voting power. There is no cumulative voting in the election of
directors, which means that the holders of a majority of the outstanding
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shares of common stock can elect all of the directors then standing for
election, and the holders of the remaining shares of common stock will not be
able to elect any directors.
Common stock holders have no conversion, sinking fund or redemption rights,
or preemptive rights to subscribe for any securities of First Industrial Realty
Trust, Inc.
Subject to the provisions of our articles of incorporation regarding excess
stock, all shares of common stock will have equal dividend, distribution,
liquidation and other rights, and will have no preference, appraisal or exchange
rights.
Under the MGCL, a corporation generally cannot dissolve, amend its articles
of incorporation, merge, sell all or substantially all of its assets, engage in
a share exchange or engage in similar transactions outside the ordinary course
of business unless approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter unless a lesser
percentage, but not less than a majority of all of the votes to be cast on the
matter, is set forth in the corporation's articles of incorporation. Our
articles of incorporation do not provide for a lesser percentage in such
situations.
Restrictions on ownership
For First Industrial Realty Trust, Inc. to qualify as a REIT under the
Code, not more than 50% in value of its outstanding capital stock may be owned,
actually or by attribution, by five or fewer individuals, as defined in the Code
to include certain entities, during the last half of a taxable year. To assist
us in meeting this requirement, we may take certain actions to limit the
beneficial ownership, directly or indirectly, by individuals of our outstanding
equity securities. See "Restrictions on Transfers of Capital Stock."
Transfer agent
The transfer agent and registrar for the common stock is Equiserve - First
Chicago Trust Division.
Shareholder rights plan
On September 4, 1997, the board of directors of First Industrial Realty
Trust, Inc. adopted a shareholder rights plan. Under the shareholder rights
plan, one right was attached to each outstanding share of common stock at the
close of business on October 19, 1997, and one right will be attached to each
share of common stock thereafter issued. Each right entitles the holder to
purchase, under certain conditions, one one-hundredth of a share of our junior
participating preferred stock for $125.00. The rights may also, under certain
conditions, entitle the holders to receive common stock, or common stock of an
entity acquiring First Industrial Realty Trust, Inc., or other consideration,
each having a value equal to twice the exercise price of each right ($250.00).
We have designated 1,000,000 shares as junior participating preferred stock and
have reserved such shares for issuance under the shareholder rights plan. In the
event of any merger, consolidation, combination or other transaction in which
shares of common stock are exchanged for or changed into other stock or
securities, cash and/or other property, each share of junior participating
preferred stock will be entitled to receive 100 times the aggregate amount of
stock, securities, cash and/or other property, into which or for which each
share of common stock is changed or exchanged, subject to certain adjustments.
The rights are redeemable by us at a price of $.001 per right. If not exercised
or redeemed, all rights expire on October 20, 2007. The description and terms of
the rights are set forth in a shareholder rights agreement between us and First
Chicago Trust Company of New York.
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CERTAIN PROVISIONS OF MARYLAND LAW AND THE
FIRST INDUSTRIAL REALTY TRUST, INC. ARTICLES OF INCORPORATION AND BYLAWS
The following summary of certain provisions of Maryland law is not complete
and is qualified by reference to Maryland law and our articles of incorporation
and bylaws, which are incorporated by reference to the registration statement of
which this prospectus is a part.
Business combinations
Under the MGCL, certain "business combinations" between a Maryland
corporation and an "Interested Stockholder" or, in certain circumstances, an
associate or an affiliate thereof, are prohibited for five years after the most
recent date on which the Interested Stockholder became an Interested
Stockholder. Business combinations for the purposes of the preceding sentence
are defined by the MGCL to include specified mergers, consolidations, share
exchanges and asset transfers, some issuances and reclassifications of equity
securities, the adoption of a plan of liquidation or dissolution or the receipt
by an interested stockholder or its affiliate of any loan advance, guarantee,
pledge or other financial assistance or tax advantage provided by First
Industrial Realty Trust, Inc. After the five-year period, any such business
combination must be recommended by the board of directors of the corporation and
approved by the affirmative vote of at least
o 80% of the votes entitled to be cast by holders of outstanding voting
shares of the corporation and
o two-thirds of the votes entitled to be cast by holders of outstanding
shares of the corporation other than shares held by the Interested
Stockholder with whom the business combination is to be effected.
The super-majority vote requirements will not apply if, among other things, the
corporation's stockholders receive a minimum price (as defined in the MGCL) for
their shares and the consideration is received in cash or in the same form as
previously paid by the Interested Stockholder for its shares. These provisions
of Maryland law do not apply, however, to business combinations that are
approved or exempted by the board of directors of the corporation prior to the
time that the Interested Stockholder becomes an Interested Stockholder. Our
articles of incorporation exempt from these provisions of the MGCL any business
combination in which there is no Interested Stockholder other than Jay H.
Shidler, the Chairman of our board of directors, or any entity controlled by Mr.
Shidler unless Mr. Shidler is an Interested Stockholder without taking into
account his ownership of shares of our common stock and the right to acquire
shares of our common stock in an aggregate amount that does not exceed the
number of shares of our common stock that he owned and had the right to acquire,
including through the exchange of limited partnership units of First Industrial,
L.P., at the time of the consummation of our initial public offering.
Control share acquisitions
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of stock owned by the acquiror or by officers or by directors
who are also employees of the corporation. "Control shares" are voting shares of
stock that, if aggregated with all other shares of stock previously acquired by
that person, would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power: o one-fifth or
more but less than one-third,
o one-third or more but less than a majority, or
o a majority of all voting power.
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Control shares do not include shares the acquiring person is then entitled to
vote as a result of having previously obtained stockholder approval. A "control
share acquisition" means the acquisition of control shares, subject to certain
exceptions.
A person who has made or proposes to make a control share acquisition may
compel the board of directors, upon satisfaction of certain conditions,
including an undertaking to pay expenses, to call a special meeting of
stockholders to be held within 50 days after receiving a demand to consider the
voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any meeting of stockholders.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the MGCL, then,
subject to certain conditions and limitations, the corporation may redeem any or
all of the control shares, except those for which voting rights have previously
been approved. The corporation's redemption of the control shares will be for
fair value determined, without regard to the absence of voting rights, as of the
date of the last control share acquisition or of any meeting of stockholders at
which the voting rights of the control shares are considered and not approved.
If voting rights for control shares are approved at a stockholders meeting and
the acquiror becomes entitled to vote a majority of the shares entitled to vote,
all other stockholders may exercise appraisal rights. The fair value of the
shares as determined for purposes of the appraisal rights may not be less than
the highest price per share paid in the control share acquisition. Certain
limitations and restrictions otherwise applicable to the exercise of dissenters'
rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to
o shares acquired in a merger, consolidation or share exchange if the
corporation is a party to the transaction, or
o acquisitions approved or exempted by our articles of incorporation or
bylaws.
Our bylaws contain a provision exempting any and all acquisitions of our
shares of capital stock from the control share provisions of the MGCL. There can
be no assurance that this bylaw provision will not be amended or eliminated in
the future.
Amendment of articles of incorporation
Our articles of incorporation, including the provisions on classification
of the board of directors discussed below, may be amended only by the
affirmative vote of the holders of not less than two-thirds of all of the votes
entitled to be cast on the matter.
Meetings of stockholders
Our bylaws provide for annual meetings of stockholders to be held on the
third Wednesday in April or on any other day as may be established from time to
time by our board of directors. Special meetings of stockholders may be called
by
o our Chairman of the board or our President,
o a majority of the board of directors, or
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o stockholders holding at least 25% of our outstanding capital stock
entitled to vote at the meeting.
Our bylaws provide that any stockholder of record wishing to nominate a
director or have a stockholder proposal considered at an annual meeting must
provide written notice and certain supporting documentation to us relating to
the nomination or proposal not less than 75 days nor more than 180 days prior to
the anniversary date of the prior year's annual meeting or special meeting in
lieu thereof (the "Anniversary Date"). In the event that the annual meeting is
called for a date more than seven calendar days before the Anniversary Date,
stockholders generally must provide written notice within 20 calendar days after
the date on which notice of the meeting is mailed to stockholders or the date of
the meeting is publicly disclosed.
The purpose of requiring stockholders to give us advance notice of
nominations and other business is to afford our board of directors a meaningful
opportunity to consider the qualifications of the proposed nominees or the
advisability of the other proposed business and, to the extent deemed necessary
or desirable by our board of directors, to inform stockholders and make
recommendations about the qualifications or business, as well as to provide a
more orderly procedure for conducting meetings of stockholders. Although our
bylaws do not give our board of directors any power to disapprove stockholder
nominations for the election of directors or proposals for action, they may have
the effect of precluding a contest for the election of directors or the
consideration of stockholder proposals if the proper procedures are not followed
and of discouraging or deterring a third party from conducting a solicitation of
proxies to elect its own slate of directors or to approve its own proposal. Our
bylaws may have those effects without regard to whether consideration of the
nominees or proposal might be harmful or beneficial to us and our stockholders.
Classification of the board of directors
Our bylaws provide that the number of our directors may be established by
the board of directors but may not be fewer than the minimum number required by
Maryland law nor more than twelve. Any vacancy will be filled, at any regular
meeting or at any special meeting called for that purpose, by a majority of the
remaining directors, except that a vacancy resulting from an increase in the
number of directors will be filled by a majority of the entire board of
directors. Under the terms of our articles of incorporation, our directors are
divided into three classes. One class holds office for a term expiring at the
annual meeting of stockholders to be held in 2002, and the other two classes
hold office for terms expiring at the annual meetings of stockholders to be held
in 2003 and 2004, respectively. As the term of each class expires, directors in
that class will be elected for a term of three years and until their successors
are duly elected and qualified. We believe that classification of our board of
directors will help to assure the continuity and stability of our business
strategies and policies as determined by our board of directors.
The classified board provision could have the effect of making the removal
of incumbent directors more time consuming and difficult, which could discourage
a third party from making a tender offer or otherwise attempting to obtain
control of us, even though such an attempt might be beneficial to us and our
stockholders. At least two annual meetings of stockholders, instead of one, will
generally be required to effect a change in a majority of our board of
directors. Thus, the classified board provision could increase the likelihood
that incumbent directors will retain their positions. Holders of shares of
common stock will have no right to cumulative voting for the election of
directors. Consequently, at each annual meeting of stockholders, the holders of
a majority of the shares of common stock will be able to elect all of the
successors of the class of directors whose term expires at that meeting.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
For First Industrial Realty Trust, Inc. to qualify as a REIT under the
Code, among other things, not more than 50% in value of its outstanding capital
stock may be owned, actually or by attribution, by five or fewer individuals (as
defined in the Code to include certain entities) during the last half of a
taxable year. Our
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capital stock must also be beneficially owned by 100 or more persons during at
least 335 days of a taxable year of 12 months or during a proportionate part of
a shorter tax year. See "Federal Income Tax Considerations." To ensure that we
remain a qualified REIT, our articles of incorporation, subject to certain
exceptions, provide that no holder may own, or be deemed to own by virtue of the
attribution provisions of the Code, more than an aggregate of 9.9% in value of
our capital stock. Any transfer of capital stock or any security convertible
into capital stock that would create a direct or indirect ownership of capital
stock in excess of the ownership limit or that would result in our
disqualification as a REIT, including any transfer that results in the capital
stock being owned by fewer than 100 persons or results in us being "closely
held" within the meaning of Section 856(h) of the Code, shall be null and void,
and the intended transferee will acquire no rights to the capital stock.
Capital stock owned, or deemed to be owned, or transferred to a stockholder
in excess of the ownership limit will automatically be exchanged for shares of
"excess stock", as defined in our articles of incorporation, that will be
transferred, by operation of law, to us as trustee of a trust for the exclusive
benefit of the transferees to whom such capital stock may be ultimately
transferred without violating the ownership limit. While the excess stock is
held in trust, it will not be entitled to vote, it will not be considered for
purposes of any stockholder vote or the determination of a quorum for such vote,
and it will not be entitled to participate in the accumulation or payment of
dividends or other distributions. A transferee of excess stock may, at any time
such excess stock is held by us in trust, designate as beneficiary of the
transferee stockholder's interest in the trust representing the excess stock any
individual whose ownership of the capital stock exchanged into such excess stock
would be permitted under the ownership limit, and may transfer that interest to
the beneficiary at a price not in excess of the price paid by the original
transferee-stockholder for the capital stock that was exchanged into excess
stock. Immediately upon the transfer to the permitted beneficiary, the excess
stock will automatically be exchanged for capital stock of the class from which
it was converted.
In addition, we will have the right, for a period of 90 days during the
time any excess stock is held by us in trust, and, with respect to excess stock
resulting from the attempted transfer of our preferred stock, at any time when
any outstanding shares of preferred stock of the series are being redeemed, to
purchase all or any portion of the excess stock from the original
transferee-stockholder at the lesser of the price paid for the capital stock by
the original transferee-stockholder and the market price, as determined in the
manner set forth in our articles of incorporation, of the capital stock on the
date we exercise our option to purchase or, in the case of a purchase of excess
stock attributed to preferred stock which has been called for redemption, at its
stated value, plus all accumulated and unpaid dividends to the date of
redemption. The 90-day period begins on the date of the violative transfer if
the original transferee-stockholder gives notice to us of the transfer or, if no
such notice is given, the date the board of directors determines that a
violative transfer has been made.
FEDERAL INCOME TAX CONSIDERATIONS
This section is a summary of the material federal income tax matters of
general application pertaining to REITs under the Code. The discussion is based
on current law and does not purport to deal with all aspects of federal income
taxation that may be relevant to investors subject to special treatment under
the federal income tax laws, such as tax-exempt investors, dealers in securities
or foreign persons. The provisions of the Code pertaining to REITs are highly
technical and complex and sometimes involve mixed questions of fact and law. In
addition, this section does not discuss foreign, state or local taxation. We
have received an opinion from Cahill Gordon & Reindel as to the conclusions of
law expressed in this summary. Prospective investors should consult their own
tax advisors regarding the federal, state, local, foreign and other tax
consequences specific to them of holding and disposing of the common stock.
In the opinion of Cahill Gordon & Reindel, commencing with our taxable year
ended December 31, 1994:
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o we have been organized in conformity with the requirements for
qualification as a REIT under the Code,
o our method of operation has enabled us to meet the requirements for
qualification as a REIT under the Code, and
o provided that we continue to satisfy the various requirements
applicable under the Code to REITs, as described herein, we will
continue to so qualify.
Cahill Gordon & Reindel's opinion is based on various assumptions and is
conditioned upon certain representations made by us as to factual matters with
respect to us and certain partnerships and limited liability companies through
which we hold substantially all of our assets. Moreover, our qualification and
taxation as a REIT depends upon our ability to meet, as a matter of fact,
through actual annual operating results, distribution levels, diversity of stock
ownership and various other qualification tests imposed under the Code discussed
below, the results of which will not be reviewed by Cahill Gordon & Reindel. No
assurance can be given that the actual results of our operations for any
particular taxable year will satisfy those requirements.
To qualify as a REIT under the Code for a taxable year, we must meet
certain organizational and operational requirements, which generally require us
to be a passive investor in real estate and to avoid excessive concentration of
ownership of our capital stock. Generally, at least 75% of the value of our
total assets at the end of each calendar quarter must consist of real estate
assets, cash or governmental securities. We generally may not own securities
possessing more than 10% of the total voting power, or representing more than
10% of the total value, of the outstanding securities of any issuer, and the
value of any one issuer's securities may not exceed 5% of the value of our
assets. Shares of qualified REITs, qualified temporary investments and shares of
certain wholly owned subsidiary corporations are exempt from these prohibitions.
We hold assets through certain wholly owned subsidiary corporations and hold
preferred stock interests in certain corporations. In the opinion of Cahill
Gordon & Reindel, based on certain factual representations, these holdings do
not violate the prohibition on ownership of voting securities.
The 10% and 5% limitations described above will not apply to the ownership
of securities of a "taxable REIT subsidiary." A REIT may own up to 100% of the
securities of a taxable REIT subsidiary subject only to the limitations that the
aggregate value of the securities of all taxable REIT subsidiaries owned by the
REIT does not exceed 20% of the value of the assets of the REIT, and the
aggregate value of all securities owned by the REIT (including the securities of
all taxable REIT subsidiaries, but excluding government securities) does not
exceed 25% of the value of the assets of the REIT. A taxable REIT subsidiary
generally is any corporation (other than another REIT and corporations involved
in certain lodging, healthcare, franchising and licensing activities) owned by a
REIT with respect to which the REIT and such corporation jointly elect that such
corporation shall be treated as a taxable REIT subsidiary.
For each taxable year, at least 75% of a REIT's gross income must be
derived from specified real estate sources and 95% must be derived from such
real estate sources plus certain other permitted sources. Real estate income for
purposes of these requirements includes
o gain from the sale of real property not held primarily for sale to
customers in the ordinary course of business, o dividends on REIT
shares,
o interest on loans secured by mortgages on real property,
o certain rents from real property, and
o certain income from foreclosure property.
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For rents to qualify, they may not be based on the income or profits of any
person, except that they may be based on a percentage or percentages of gross
income or receipts. Also, subject to certain limited exceptions, the REIT may
not manage the property or furnish services to tenants except through an
independent contractor which is paid an arm's-length fee and from which the REIT
derives no income. However, a REIT may render a de minimis amount of otherwise
impermissible services to tenants, or in connection with the management of
property, and treat amounts received with respect to such property as rents from
real property. In addition, a taxable REIT subsidiary may provide certain
services to tenants of the REIT, which services could not otherwise be provided
by the REIT or the REIT's other subsidiaries.
Substantially all of our assets are held through certain partnerships. In
general, in the case of a REIT that is a partner in a partnership, applicable
regulations treat the REIT as holding directly its proportionate share of the
assets of the partnership and as being entitled to the income of the partnership
attributable to such share.
We must satisfy certain ownership restrictions that limit the concentration
of ownership of our capital stock by a few individuals and the ownership by us
of our tenants. Our outstanding capital stock must be held by at least 100
stockholders. No more than 50% in value of our outstanding capital stock,
including in some circumstances capital stock into which outstanding securities
might be converted, may be owned actually or constructively by five or fewer
individuals or certain other entities at any time during the last half of our
taxable year. Accordingly, our articles of incorporation contain certain
restrictions regarding the transfer of our common stock, preferred stock and any
other outstanding securities convertible into stock when necessary to maintain
our qualification as a REIT under the Code. However, because the Code imposes
broad attribution rules in determining constructive ownership, no assurance can
be given that the restrictions contained in our articles of incorporation will
be effective in maintaining our REIT status. See "Restrictions on Transfers of
Capital Stock."
So long as we qualify for taxation as a REIT, distribute at least 90% of
our REIT taxable income, computed without regard to net capital gain or the
dividends paid deduction, for each taxable year to our stockholders annually and
satisfy certain other distribution requirements, we will not be subject to
federal income tax on that portion of such income distributed to stockholders.
We will be taxed at regular corporate rates on all income not distributed to
stockholders. Our policy is to distribute at least 90% of our taxable income. We
may elect to pass through to our shareholders on a pro rata basis any taxes paid
by us on our undistributed net capital gain income for the relevant tax year.
REITs also may incur taxes for certain other activities or to the extent
distributions do not satisfy certain other requirements.
Our failure to qualify during any taxable year as a REIT could, unless
certain relief provisions were available, have a material adverse effect upon
our stockholders. If disqualified for taxation as a REIT for a taxable year, we
also would be disqualified for taxation as a REIT for the next four taxable
years, unless the failure were considered to be due to reasonable cause and not
willful neglect and certain other conditions were satisfied. We would be subject
to federal income tax at corporate rates on all of our taxable income and would
not be able to deduct any dividends paid, which could result in a
discontinuation of or substantial reduction in dividends to stockholders.
Dividends also would be subject to the regular tax rules applicable to dividends
received by stockholders of corporations. Should the failure to qualify as a
REIT be determined to have occurred retroactively in one of our earlier tax
years, the imposition of a substantial federal income tax liability on us
attributable to any nonqualifying tax years may adversely affect our ability to
pay dividends. In the event that we fail to meet certain income tests applicable
to REITs, we may, generally, nonetheless retain our qualification as a REIT if
we pay a 100% tax on the amount by which we failed to meet the relevant income
test so long as such failure was considered to be due to reasonable cause and
not willful neglect and certain
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other conditions are satisfied. Any such taxes would adversely affect our
ability to pay dividends and distributions.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K/A No. 1 for the year ended December
31, 2000 for each of First Industrial Realty Trust, Inc. and First Industrial,
L.P., have been so incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters will be passed upon for us by Cahill Gordon &
Reindel, New York, New York. Cahill Gordon & Reindel will rely as to all matters
of Maryland law on the opinion of McGuireWoods LLP, Baltimore, Maryland. If
counsel for any underwriter, dealer or agent passes on legal matters in
connection with an offering made by this prospectus, we will name that counsel
in the prospectus supplement relating to the offering.
WHERE YOU CAN FIND MORE INFORMATION
First Industrial Realty Trust, Inc. and the Operating Partnership are
subject to the informational requirements of the Securities Exchange Act of
1934. First Industrial Realty Trust, Inc. files reports, proxy statements and
other information with the Securities and Exchange Commission. The Operating
Partnership files reports and other information with the Commission. You may
read and copy any of our reports, proxy statements and other information at, and
obtain copies upon payment of prescribed fees from, the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Those
documents are also available for inspection and copying at the regional offices
of the Commission located at 7 World Trade Center, New York, New York 10048 and
at Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661-2511. In addition, the Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission at http://www.sec.gov.
First Industrial Realty Trust, Inc.'s common stock is listed on the New York
Stock Exchange and its Commission filings can also be inspected and copied at
the offices of the NYSE at 20 Broad Street, New York, New York 10005.
This prospectus is a part of a registration statement we filed with the
Commission. As permitted by the Commission, this prospectus does not contain all
the information that you can find in the registration statement or the exhibits
to the registration statement.
We "incorporate by reference" information we file with the Commission,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is an important
part of this prospectus and more recent information automatically updates and
supersedes more dated information contained or incorporated by reference in this
prospectus.
First Industrial Realty Trust, Inc. filed the following documents with the
Commission and incorporates them by reference into this prospectus (file no.
1-13102):
1) Annual Report on Form 10-K for the year ended December 31, 2000, filed
March 9, 2001;
2) Annual Report on Form 10-K/A No. 1 for the year ended December 31,
2000, filed July 6, 2001;
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3) Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2001, filed May 15, 2001;
4) Current Report on Form 8-K filed with the Commission on January 12,
2001;
5) Current Report on Form 8-K/A No. 1 filed with the Commission on March
8, 2001;
6) Current Report on Form 8-K filed with the Commission on March 16,
2001;
7) Current Report on Form 8-K filed with the Commission on April 10,
2001; and
8) The description of the common stock included in First Industrial
Realty Trust, Inc.'s registration statement on Form 8-A dated June 23,
1994 and the description of the associated preferred share purchase
rights included in the Form 8-A filed September 24, 1997.
The Operating Partnership filed the following documents with the Commission
and incorporates them by reference into this prospectus (file no.: 333-21873):
1) Annual Report on Form 10-K for the year ended December 31, 2000, filed
March 28, 2001;
2) Annual Report on Form 10-K/A No. 1 for the year ended December 31,
2000, filed July 6, 2001;
3) Quarterly Report on Form 10-Q for the quarterly period ended March 31,
2001, filed May 15, 2001;
4) Current Report on Form 8-K filed with the Commission on January 12,
2001;
5) Current Report on Form 8-K/A No.1 filed with the Commission on March
8, 2001;
6) Current Report on Form 8-K filed with the Commission on March 16,
2001;
7) Current Report on Form 8-K filed with the Commission on March 29,
2001; and
8) Current Report on Form 8-K filed with the Commission on April 5, 2001.
All documents filed by First Industrial Realty Trust, Inc. or the Operating
Partnership under Section 13(a), 13(c), 14, or 15(d) of the Exchange Act
subsequent to the date of this prospectus and prior to the termination of this
offering shall be deemed to be incorporated by reference in this prospectus and
made a part hereof from the date of the filing of such documents.
We will provide without charge to each person, including any beneficial
owner, to whom this prospectus is delivered, upon written or oral request, a
copy of these filings or portions of these filings by writing to or calling us
at First Industrial Realty Trust, Inc., Attention: Investor Relations, 311 S.
Wacker Drive, Suite 4000, Chicago, Illinois 60606, telephone (312) 344-4300. The
copies of filings will not include exhibits unless those exhibits are
specifically incorporated by reference into the filing.
-49-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby, which will be
borne by First Industrial Realty Trust, Inc. (the "Company"). All amounts shown
are estimates, except the SEC registration fee:
Securities and Exchange Commission registration fee....... $ 100,000
Fees of Rating Agencies................................... 600,000
Blue Sky fees and expenses................................ 20,000
Legal fees and expenses................................... 600,000
Accounting fees and expenses.............................. 150,000
Miscellaneous............................................. 200,000
---------
Total..................................................... $1,670,000
============
Item 15. Indemnification of Directors and Officers.
The Company's Articles of Incorporation and Bylaws provide certain
limitations on the liability of the Company's directors and officers for
monetary damages to the Company. The Articles of Incorporation and Bylaws
obligate the Company to indemnify its directors and officers, and permit the
Company to indemnify its employees and other agents, against certain liabilities
incurred in connection with their service in such capacities. These provisions
could reduce the legal remedies available to the Company and its stockholders
against these individuals. The provisions of Maryland law provide for the
indemnification of officers and directors of a company under certain
circumstances.
The Sixth Amended and Restated Agreement of Limited Partnership of First
Industrial, L.P. ("the Operating Partnership") contains provisions indemnifying
the Company and its officers, directors and stockholders to the fullest extent
permitted by the Delaware Revised Uniform Limited Partnership Act.
Item 16. Exhibits.
Exhibit
Number Description
4.1 Amended and Restated Articles of Incorporation of First Industrial Realty
Trust, Inc. (incorporated by reference to Exhibit 3.1 of the Form 10-Q for
First Industrial Realty Trust, Inc. for the fiscal quarter ended June 30,
1996, File No. 1-13102).
4.2 Amended and Restated Bylaws of First Industrial Realty Trust, Inc., dated
September 4, 1997 (incorporated by reference to Exhibit 1 of First
Industrial Realty Trust, Inc.'s Form 8-K, dated September 4, 1997, as filed
on September 29, 1997, File No. 1-13102).
4.3 Articles of Amendment to First Industrial Realty Trust, Inc.'s Articles of
Incorporation, dated June 20, 1994 (incorporated by reference to Exhibit
3.2 of the Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal
quarter ended June 30, 1996, File No. 1-13102).
II-1
Exhibit
Number Description
4.4 Articles of Amendment to First Industrial Realty Trust, Inc.'s Articles of
Incorporation, dated May 31, 1996 (incorporated by reference to Exhibit 3.3
of the Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal
quarter ended June 30, 1996, File No. 1-13102).
4.5 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
7.95% Series D Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.1 of the Form 8-K of First Industrial Realty Trust,
Inc. dated February 6, 1998, File No. 1-13102).
4.6 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
7.90% Series E Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.9 of First Industrial Realty Trust, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1997, File No.
1-13102).
4.7 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
Junior Participating Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.10 of Form S-3/A of First Industrial Realty Trust,
Inc. and First Industrial, L.P. dated September 24, 1997, File No.
333-29879).
4.8 Deposit Agreement, dated February 4, 1998, by and among First Industrial
Realty Trust, Inc., First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.2 of the Form 8-K of First Industrial Realty Trust, Inc., dated
February 6, 1998, File No. 1-13102).
4.9 Deposit Agreement, dated March 18, 1998, by and among First Industrial
Realty Trust, Inc., First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.12 of First Industrial Realty Trust, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1997, File No. 1-13102).
4.10 Indenture, dated as of May 13, 1997, between First Industrial, L.P. and
First Trust National Association, as Trustee (incorporated by reference to
Exhibit 4.1 of the Form 10-Q of First Industrial Realty Trust, Inc. for the
fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of
First Industrial Realty Trust, Inc. filed May 30, 1997, File No. 1-13102).
4.11 Rights Agreement, dated as of September 16, 1997, between First Industrial
Realty Trust, Inc. and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of Form 8-A12B of First
Industrial Realty Trust, Inc. as filed on September 24, 1997, File No.
1-13102).
4.12 6.50% Dealer remarketable securities due April 5, 2011 in principal amount
of $100 million issued by First Industrial, L.P. (incorporated by reference
to Exhibit 4.2 of the Form 8-K of First Industrial, L.P. dated April 7,
1998, File No. 333-21873).
4.13 Supplemental Indenture No. 4, dated as of March 26, 1998, between First
Industrial, L.P. and First Trust National Trust Association, as Trustee,
relating to 6.50% Dealer remarketable securities due April 5, 2011
(incorporated by reference to Exhibit 4.1 of Form 8-K of First Industrial,
L.P. dated April 7, 1998, File No. 333-21873).
II-2
Exhibit
Number Description
4.14 Remarketing Agreement, dated March 31, 1998, between First Industrial, L.P.
and J.P. Morgan Securities Inc. (incorporated by reference to Exhibit 1.2
of Form 8-K of First Industrial, L.P. dated April 7, 1998, File No.
333-21873).
4.15 Supplemental Indenture No. 5, dated as of July 14, 1998, between First
Industrial, L.P. and the U.S. Bank Trust National Association, relating to
First Industrial, L.P.'s 7.60% Notes due July 15, 2008 (incorporated by
reference to Exhibit 4.1 of the Form 8-K of First Industrial, L.P. dated
July 15, 1998, File No. 333-21873).
4.16 Sixth Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998 (the "L.P. Agreement") (incorporated
by reference to Exhibit 10.1 of First Industrial Realty Trust, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1997, File No.
1-13102).
4.17 First Amendment to the L.P. Agreement, dated April 1, 1998 (incorporated by
reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.18 Second Amendment to the L.P. Agreement, dated April 3, 1998 (incorporated
by reference to Exhibit 10.3 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.19 Third Amendment to the L.P. Agreement, dated April 16, 1998 (incorporated
by reference to Exhibit 10.4 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.20 Fourth Amendment to the L.P. Agreement, dated June 24, 1998 (incorporated
by reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended June 30, 1998, File No. 1-13102).
4.21 Fifth Amendment to the L.P. Agreement, dated July 16, 1998 (incorporated by
reference to Exhibit 10.3 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended June 30, 1998, File No. 1-13102).
4.22 Sixth Amendment to the L.P. Agreement, dated August 31, 1998 (incorporated
by reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended September 30, 1998, File No.
1-13102).
4.23 Seventh Amendment to the L.P. Agreement, dated October 21, 1998
(incorporated by reference to Exhibit 10.3 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
1998, File No. 1-13102).
4.24 Eighth Amendment to the L.P. Agreement, dated October 30, 1998
(incorporated by reference to Exhibit 10.4 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
1998, File No. 1-13102).
II-3
Exhibit
Number Description
4.25 Ninth Amendment to the L.P. Agreement, dated November 5, 1998 (incorporated
by reference to Exhibit 10.5 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended September 30, 1998, File No.
1-13102).
4.26 Tenth Amendment to the L.P. Agreement, dated January 28, 2000 (incorporated
by reference to Exhibit 10.11 of First Industrial Realty Trust, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
1-3102).
4.27 Eleventh Amendment to the L.P. Agreement, dated January 28, 2000
(incorporated by reference to Exhibit 10.12 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1999, File No. 1-3102).
4.28 Twelfth Amendment to the L.P. Agreement, dated as of June 27, 2000
(incorporated by reference to Exhibit 10.2 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended June 30, 2000,
File No. 1-13102).
4.29 Thirteenth Amendment to the L.P. Agreement, dated as of September 1, 2000
(incorporated by reference to Exhibit 10.1 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.30 Fourteenth Amendment to the L.P. Agreement, dated as of October 13, 2000
(incorporated by reference to Exhibit 10.2 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.31 Fifteenth Amendment to the L.P. Agreement, dated as of October 13, 2000
(incorporated by reference to Exhibit 10.3 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.32 Sixteenth Amendment to the L.P. Agreement, dated as of October 27, 2000
(incorporated by reference to Exhibit 10.4 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.33 Seventeenth Amendment to the L.P. Agreement, dated as of January 25, 2001
(incorporated by reference to Exhibit 10.18 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2000).
4.34 Eighteenth Amendment to the L.P. Agreement, dated as of February 13, 2001
(incorporated by reference to Exhibit 10.19 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2000).
5** Opinion of Cahill Gordon & Reindel, counsel to the Registrants, as to the
legality of the securities being registered.
8* Opinion of Cahill Gordon & Reindel, counsel to the Registrants, as to
certain tax matters.
12.1** Computation of ratios of earnings to fixed charges and preferred stock
dividends of First Industrial Realty Trust, Inc.
12.2** Computation of earnings to fixed charges of First Industrial, L.P.
II-4
Exhibit
Number Description
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Cahill Gordon & Reindel (included in Exhibit 8).
24** Power of Attorney.
25** Statement of eligibility of Trustee on Form T-1.
- -----------------------
* Filed herewith.
** Previously filed.
II-5
Item 17. Undertakings.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the undersigned registrants pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of each of the registrant's annual reports pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-6
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of each of the registrants pursuant to the
provisions described under Item 15 above, or otherwise, the
registrants have been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrants of
expenses incurred or paid by a director, officer, or controlling
person of each of the registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
each of the registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
(d) The undersigned registrants hereby undertake to file an application
for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Trust Indenture Act.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago, State of Illinois, on July 6,
2001.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
By: /s/ Michael J. Havala
------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
II-8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
* President, Chief Executive July 6, 2001
- ---------------------------------------- Officer and Director
Michael W. Brennan (Principal Executive
Officer)
/s/ Michael J. Havala Chief Financial Officer July 6, 2001
- ---------------------------------------- (Principal Financial and
Michael J. Havala Accounting Officer)
* Director of Strategic Planning July 6, 2001
- ---------------------------------------- and Director
Michael G. Damone
Director
- ----------------------------------------
John L. Lesher
* Director July 6, 2001
- ----------------------------------------
Kevin W. Lynch
* Director July 6, 2001
- ----------------------------------------
John E. Rau
Chairman of the Board of Directors
- ----------------------------------------
Jay H. Shidler
* Director July 6, 2001
- ----------------------------------------
Robert J. Slater
* Director July 6, 2001
- ----------------------------------------
W. Edwin Tyler
* Director July 6, 2001
- ----------------------------------------
J. Steven Wilson
By: /s/ Michael S. Havala
---------------------------------
Michael J. Havala
Attorney-in-fact
II-9
EXHIBIT INDEX
Exhibit
Number Description
4.1 Amended and Restated Articles of Incorporation of First Industrial Realty
Trust, Inc. (incorporated by reference to Exhibit 3.1 of the Form 10-Q for
First Industrial Realty Trust, Inc. for the fiscal quarter ended June 30,
1996, File No. 1-13102).
4.2 Amended and Restated Bylaws of First Industrial Realty Trust, Inc., dated
September 4, 1997 (incorporated by reference to Exhibit 1 of First
Industrial Realty Trust, Inc.'s Form 8-K, dated September 4, 1997, as filed
on September 29, 1997, File No. 1-13102).
4.3 Articles of Amendment to First Industrial Realty Trust, Inc.'s Articles of
Incorporation, dated June 20, 1994 (incorporated by reference to Exhibit
3.2 of the Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal
quarter ended June 30, 1996, File No. 1-13102).
4.4 Articles of Amendment to First Industrial Realty Trust, Inc.'s Articles of
Incorporation, dated May 31, 1996 (incorporated by reference to Exhibit 3.3
of the Form 10-Q of First Industrial Realty Trust, Inc. for the fiscal
quarter ended June 30, 1996, File No. 1-13102).
4.5 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
7.95% Series D Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.1 of the Form 8-K of First Industrial Realty Trust,
Inc. dated February 6, 1998, File No. 1-13102).
4.6 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
7.90% Series E Cumulative Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 3.9 of First Industrial Realty Trust, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1997, File No.
1-13102).
4.7 Articles Supplementary relating to First Industrial Realty Trust, Inc.'s
Junior Participating Preferred Stock, $.01 par value (incorporated by
reference to Exhibit 4.10 of Form S-3/A of First Industrial Realty Trust,
Inc. and First Industrial, L.P. dated September 24, 1997, File No.
333-29879).
4.8 Deposit Agreement, dated February 4, 1998, by and among First Industrial
Realty Trust, Inc., First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.2 of the Form 8-K of First Industrial Realty Trust, Inc., dated
February 6, 1998, File No. 1-13102).
4.9 Deposit Agreement, dated March 18, 1998, by and among First Industrial
Realty Trust, Inc., First Chicago Trust Company of New York and holders
from time to time of Depositary Receipts (incorporated by reference to
Exhibit 4.12 of First Industrial Realty Trust, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1997, File No. 1-13102).
4.10 Indenture, dated as of May 13, 1997, between First Industrial, L.P. and
First Trust National Association, as Trustee (incorporated by reference to
Exhibit 4.1 of the Form 10-Q of First Industrial Realty Trust, Inc. for the
fiscal quarter ended March 31, 1997, as amended by Form 10-Q/A No. 1 of
First Industrial Realty Trust, Inc. filed May 30, 1997, File No. 1-13102).
II-10
Exhibit
Number Description
4.11 Rights Agreement, dated as of September 16, 1997, between First Industrial
Realty Trust, Inc. and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of Form 8-A12B of First
Industrial Realty Trust, Inc. as filed on September 24, 1997, File No.
1-13102).
4.12 6.50% Dealer remarketable securities due April 5, 2011 in principal amount
of $100 million issued by First Industrial, L.P. (incorporated by reference
to Exhibit 4.2 of the Form 8-K of First Industrial, L.P. dated April 7,
1998, File No. 333-21873).
4.13 Supplemental Indenture No. 4, dated as of March 26, 1998, between First
Industrial, L.P. and First Trust National Trust Association, as Trustee,
relating to 6.50% Dealer remarketable securities due April 5, 2011
(incorporated by reference to Exhibit 4.1 of Form 8-K of First Industrial,
L.P. dated April 7, 1998, File No. 333-21873).
4.14 Remarketing Agreement, dated March 31, 1998, between First Industrial, L.P.
and J.P. Morgan Securities Inc. (incorporated by reference to Exhibit 1.2
of Form 8-K of First Industrial, L.P. dated April 7, 1998, File No.
333-21873).
4.15 Supplemental Indenture No. 5, dated as of July 14, 1998, between First
Industrial, L.P. and the U.S. Bank Trust National Association, relating to
First Industrial, L.P.'s 7.60% Notes due July 15, 2008 (incorporated by
reference to Exhibit 4.1 of the Form 8-K of First Industrial, L.P. dated
July 15, 1998, File No. 333-21873).
4.16 Sixth Amended and Restated Limited Partnership Agreement of First
Industrial, L.P., dated March 18, 1998 (the "L.P. Agreement") (incorporated
by reference to Exhibit 10.1 of First Industrial Realty Trust, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1997, File No.
1-13102).
4.17 First Amendment to the L.P. Agreement, dated April 1, 1998 (incorporated by
reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.18 Second Amendment to the L.P. Agreement, dated April 3, 1998 (incorporated
by reference to Exhibit 10.3 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.19 Third Amendment to the L.P. Agreement, dated April 16, 1998 (incorporated
by reference to Exhibit 10.4 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended March 31, 1998, File No. 1-13102).
4.20 Fourth Amendment to the L.P. Agreement, dated June 24, 1998 (incorporated
by reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended June 30, 1998, File No. 1-13102).
4.21 Fifth Amendment to the L.P. Agreement, dated July 16, 1998 (incorporated by
reference to Exhibit 10.3 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended June 30, 1998, File No. 1-13102).
II-11
Exhibit
Number Description
4.22 Sixth Amendment to the L.P. Agreement, dated August 31, 1998 (incorporated
by reference to Exhibit 10.2 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended September 30, 1998, File No.
1-13102).
4.23 Seventh Amendment to the L.P. Agreement, dated October 21, 1998
(incorporated by reference to Exhibit 10.3 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
1998, File No. 1-13102).
4.24 Eighth Amendment to the L.P. Agreement, dated October 30, 1998
(incorporated by reference to Exhibit 10.4 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
1998, File No. 1-13102).
4.25 Ninth Amendment to the L.P. Agreement, dated November 5, 1998 (incorporated
by reference to Exhibit 10.5 of the Form 10-Q of First Industrial Realty
Trust, Inc. for the fiscal quarter ended September 30, 1998, File No.
1-13102).
4.26 Tenth Amendment to the L.P. Agreement, dated January 28, 2000 (incorporated
by reference to Exhibit 10.11 of First Industrial Realty Trust, Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1999, File No.
1-3102).
4.27 Eleventh Amendment to the L.P. Agreement, dated January 28, 2000
(incorporated by reference to Exhibit 10.12 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1999, File No. 1-3102).
4.28 Twelfth Amendment to the L.P. Agreement, dated as of June 27, 2000
(incorporated by reference to Exhibit 10.2 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended June 30, 2000,
File No. 1-13102).
4.29 Thirteenth Amendment to the L.P. Agreement, dated as of September 1, 2000
(incorporated by reference to Exhibit 10.1 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.30 Fourteenth Amendment to the L.P. Agreement, dated as of October 13, 2000
(incorporated by reference to Exhibit 10.2 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.31 Fifteenth Amendment to the L.P. Agreement, dated as of October 13, 2000
(incorporated by reference to Exhibit 10.3 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.32 Sixteenth Amendment to the L.P. Agreement, dated as of October 27, 2000
(incorporated by reference to Exhibit 10.4 of the Form 10-Q of First
Industrial Realty Trust, Inc. for the fiscal quarter ended September 30,
2000, File No. 1-13102).
4.33 Seventeenth Amendment to the L.P. Agreement, dated as of January 25, 2001
(incorporated by reference to Exhibit 10.18 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2000).
II-12
Exhibit
Number Description
4.34 Eighteenth Amendment to the L.P. Agreement, dated as of February 13, 2001
(incorporated by reference to Exhibit 10.19 of First Industrial Realty
Trust, Inc.'s Annual Report on Form 10-K for the year ended December 31,
2000).
5** Opinion of Cahill Gordon & Reindel, counsel to the Registrants, as to the
legality of the securities being registered.
8* Opinion of Cahill Gordon & Reindel, counsel to the Registrants, as to
certain tax matters.
12.1** Computation of ratios of earnings to fixed charges and preferred stock
dividends of First Industrial Realty Trust, Inc.
12.2** Computation of earnings to fixed charges of First Industrial, L.P.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Cahill Gordon & Reindel (included in Exhibit 8).
24** Power of Attorney.
25** Statement of eligibility of Trustee on Form T-1.
- -------------------------------
* Filed herewith.
** Previously filed.
II-13
Exhibit 8
[Letterhead of Cahill Gordon & Reindel]
July 6, 2001
(212) 701-3000
Ladies and Gentlemen:
We have acted as tax counsel to First Industrial Realty Trust, Inc. (the
"Company") in connection with the Form S-3 Registration Statement filed by the
Company with the Securities and Exchange Commission on March 30, 2001, as
amended on June 11, 2001 and July 6, 2001, including the documents incorporated
by reference therein, and the prospectus included therein (the "Registration
Statement").* We have been asked to provide our opinion as to certain federal
income tax matters arising under the Internal Revenue Code of 1986, as amended
(the "Code"), relating to the Company's qualification for taxation as a real
estate investment trust (a "REIT") under the Code.
The opinions set forth in this letter are based on relevant provisions of
the Code, Treasury Regulations thereunder and interpretations of the foregoing
as expressed in court decisions and administrative determinations as of the date
hereof. These provisions and interpretations are subject to changes (possibly on
a retroactive basis) that might result in modifications of our opinions.
For purposes of rendering the opinions contained in this letter, we have
reviewed the Registration Statement and such other documents, law and facts as
we have deemed necessary. In our review, we have assumed the genuineness of all
signatures; the proper execution of all documents; the authenticity of all
documents submitted to us as originals; the conformity to originals of all
documents submitted to us as copies; and the authenticity of the originals of
any copies.
These opinions also are premised on certain written factual representations
made by the Company in a certificate dated as of the date hereof (the
"Certificate"). For purposes of our opinions, we have not made an independent
investigation of the representations contained in the Certificate, and
consequently we have relied on the representations therein that the information
contained in the Certificate or otherwise furnished to us accurately describes
all material facts relevant to our opinions.
Based upon and subject to the foregoing:
(i) We are of the opinion that, commencing with the Company's taxable
year ended on December 31, 1994, the Company has been organized in
conformity with the requirements for qualification as a REIT under the Code
and the Company's method of operation, as described in the Registration
Statement and as set forth in the Certificate, has enabled it to meet the
requirements for qualification as a REIT under the Code and, provided that
the Company continues to satisfy the applicable asset composition, source
of income, shareholder diversification, distribution, recordkeeping and
other requirements of the Code necessary to qualify as a REIT, it will
continue to so qualify; and
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* Capitalized terms used in this letter that are not otherwise defined herein
have the meanings ascribed to them in the Registration Statement.
II-1
(ii) We hereby confirm the legal conclusions stated as opinions in the
Registration Statement under the heading "Federal Income Tax
Considerations" (the "Tax Section").
We express no opinion other than the opinions expressly set forth herein
and in the Tax Section (the "Opinions"). The Opinions are not binding on the
Internal Revenue Service (the "IRS") and the IRS may disagree with the Opinions.
Although we believe that the Opinions would be sustained if challenged, there
can be no assurance that this will be the case. The Opinions are based upon the
law as it currently exists. Consequently, future changes in the law may cause
the federal income tax treatment of the matters referred to herein and in the
Tax Section to be materially and adversely different from that described above
and in the Tax Section (possibly on a retroactive basis). In addition, any
variation in the facts from those set forth in the Registration Statement or the
representations contained in the Certificate or otherwise provided to us may
affect the conclusions stated in the Opinions. Moreover, the Company's
qualification and taxation as a REIT depend upon the Company's ability to meet,
through actual annual and quarterly operating results, distribution levels,
diversity of stock ownership and various other qualification tests imposed under
the Code, none of which will be reviewed by us. Accordingly, no assurance can be
given that the actual results of the Company's operations for any taxable year
will satisfy the requirements for the Company to maintain its qualification as a
REIT.
Very truly yours,
/S/ CAHILL GORDON & REINDEL
First Industrial Realty Trust, Inc.
311 South Wacker Drive, Suite 4000
Chicago, Illinois 60606
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Amendment No. 2
to the Registration Statement on Form S-3 of our reports each dated February 9,
2001 relating to each of the consolidated financial statements which each appear
in the First Industrial Realty Trust, Inc. and First Industrial, L.P. Annual
Report on Form 10-K/A No. 1 for the year ended December 31, 2000 and of our
report dated February 9, 2001 relating to the combined financial statements of
the Other Real Estate Partnerships which appears in the First Industrial, L.P.
Annual Report on Form 10-K/A No. 1. We also consent to the incorporation by
reference of each of our reports dated February 9, 2001, each relating to the
financial statement schedule, each of which also appear in each Annual Report on
Form 10-K/A No. 1. We also consent to the incorporation by reference of our
reports dated June 28, 2000 relating to the combined historical statement of
revenues and certain expenses of the 2000 Acquisition I Properties for the year
ended December 31, 1999, of our reports dated February 2, 2001 relating to the
combined historical statement of revenues and certain expenses of the 2000
Acquisition II Properties for the year ended December 31, 1999 and of our
reports dated December 8, 2000 relating to the combined historical statement of
revenues and certain expenses for the 2000 Acquisition III Properties for the
year ended December 31, 1999, which each are included in the First Industrial
Realty Trust, Inc. and First Industrial, L.P. Current Report on Form 8-K dated
January 12, 2001, as amended by each Form 8-K/A filed on March 8, 2001. We also
consent to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
July 6, 2001
