UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
FORM
8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934
January
10, 2006
Date
of
Report (Date of earliest event reported)
FIRST
INDUSTRIAL REALTY TRUST, INC.
(Exact
name of registrant as specified in its charter)
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Maryland
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1-13102
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36-3935116
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(State
or other jurisdiction of
incorporation
or organization)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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311
S. Wacker Drive, Suite 4000
Chicago,
Illinois 60606
(Address
of principal executive offices, zip code)
(312) 344-4300
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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/
/
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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/
/
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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/
/
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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/
/
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive Agreement.
On
January 10, 2006, First Industrial Realty Trust, Inc. (the “Company”) and First
Industrial, L.P. (the “Operating Partnership”) entered into an underwriting
agreement (the “Underwriting Agreement”) with Wachovia Capital Markets, LLC,
Credit Suisse First Boston LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as underwriters and as representatives of several other
underwriters listed therein (collectively, the “Underwriters”) pursuant to which
the Company agreed to issue, and the Underwriters agreed to purchase, 6,000,000
Depositary Shares (the “Depositary Shares”), each representing 1/10,000 of a
share of the Company’s 7.25% Series J Cumulative Redeemable Preferred Stock (the
“Preferred Shares”), $.01 par value, in a public offering at an offering price
of $25.00 per Depositary Share. The proportionate liquidation preference of
each
Depositary Share is $25.00. The offering of the Depositary Shares was
consummated on January 13, 2006 and the proceeds therefrom were used in
connection with the redemption of all of the outstanding shares of the Company’s
Series I Flexible Cumulative Redeemable Preferred Stock (the “Series I Preferred
Stock”).
Dividends
on the Preferred Shares represented by the Depositary Shares will be cumulative
from (and including) the date of original issuance and will be payable quarterly
in arrears, commencing on March 31, 2006, at the rate of 7.25% of the
liquidation preference per year (equivalent to $1.8125 per Depositary Share
per
year). However, during any period that both (i) the Depositary Shares are not
listed on the New York Stock Exchange (“NYSE”) or the American Stock Exchange
(“AMEX”), or quoted on the National Association of Securities Dealers Automatic
Quotation System (“NASDAQ”), and (ii) the Company is not subject to the
reporting requirements of the Securities and Exchange Act of 1934 (the “Exchange
Act”), but the Preferred Shares are outstanding, the Company will increase the
cash dividend payable on the Preferred Shares to a rate of 8.25% of the
liquidation preference per year (equivalent to $2.0625 per Depositary Share
per
year).
If
at any
time both (i) the Depositary Shares cease to be listed on the NYSE or the AMEX,
or quoted on NASDAQ, and (ii) the Company ceases to be subject to the reporting
requirements of the Exchange Act, but the Preferred Shares are outstanding,
then
the Preferred Shares will be redeemable in whole but not in part at the
Company’s option, within 90 days of the date upon which the Depositary Shares
cease to be listed and the Company ceases to be subject to such reporting
requirements, at a cash redemption price of $250,000 per Preferred Share
(equivalent to $25.00 per Depositary Share), plus all accrued and unpaid
dividends (whether or not declared) to the date of redemption.
Except
as
set forth above and in limited circumstances relating to the Company’s
qualification as a real estate investment trust, the Preferred Shares will
not
be redeemable prior to January 15, 2011. On and after January 15, 2011, at
any
time and from time to time the Preferred Shares (and, therefore the Depositary
Shares) will be redeemable in whole or in part at the Company’s option, at a
cash redemption price of $250,000 per Preferred Share (equivalent to $25.00
per
Depositary Share), plus all accrued and unpaid dividends (whether or not
declared) to the date of redemption.
Affiliates
of two of the underwriters in the offering of the Preferred Shares, Wachovia
Capital Markets, LLC, and J.P. Morgan Securities Inc., are lenders under the
Operating Partnership’s $500 million credit facility. An affiliate of Wachovia
Capital Markets, LLC was the sole purchaser of the Company's Series I Preferred
Stock in November 2005. Net proceeds from the sale of the Depositary Shares,
together with the net proceeds from the Company’s recent sale of its common
shares and the Operating Partnership’s notes, have been used for the repayment
of borrowings under the Operating Partnership’s credit facilities, the
acquisition and development of additional properties, the redemption of shares
of the Series I Preferred Stock (as described in Item 8.01 below) and/or for
general corporate purposes and, in the case of repayment of borrowings under
the
Operating Partnership’s credit facilities and redemption of the Series I
Preferred Stock, affiliates of certain of the underwriters as described above
received proceeds of the offerings.
Copies
of
the Underwriting Agreement, the Articles Supplementary for the Preferred Shares,
the Deposit Agreement relating to the Depositary Shares, and the Tenth Amended
and Restated Partnership Agreement of the Operating Partnership are filed as
Exhibits 1.1, 4.1, 10.1 and 10.2 hereto, respectively, and are incorporated
by
reference herein.
Item
2.03. Creation of a Direct Financial Obligation or an
Obligation
under an Off-Balance Sheet Arrangement of Registrant
The
information set forth in Item 1.01 is incorporated herein by reference.
Item
8.01. Other Events
On
January 13, 2006, the Company used the proceeds of the offering of the Preferred
Shares described in Item 1.01 in connection with the redemption of all of the
outstanding
shares of the Company’s Series I Preferred Stock.
Item
9.01. Financial
Statements and Exhibits.
(c) Exhibits.
The following exhibits are filed herewith:
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Exhibit
No.
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Description
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1.1
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Underwriting
Agreement dated January 10, 2006 among the Company, the Operating
Partnership, Wachovia Capital Markets, LLC, Credit Suisse First Boston
LLC
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
underwriters and as representatives of several other underwriters
listed
therein
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4.1
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Articles
Supplementary dated January 12, 2006 relating to the Preferred
Shares
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10.1
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Deposit
Agreement dated as of January 13, 2006 by and among First Industrial
Realty Trust, Inc., Computershare Shareholder Services, Inc. and
Computershare Trust Company, N.A. and holders from time to time of
Series
J Depositary Receipts
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10.2
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Tenth
Amended and Restated Partnership Agreement of First Industrial, L.P.
dated
January 13, 2006
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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FIRST
INDUSTRIAL REALTY TRUST, INC.
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By:
/s/
Scott A. Musil
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Name: Scott
A. Musil
Title: Sr.
Vice President, Controller,
Treasurer
and Asst. Secretary
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Date: January
17, 2006
First
Industrial Realty Trust, Inc.
6,000,000
Shares
Depositary
Shares Each Representing 1/10,000 of a Share of
7.25%
Series J Cumulative Redeemable Preferred Stock
(Liquidation
Preference Equivalent to $25.00 per Depositary Share)
January
10, 2006
Wachovia
Capital Markets, LLC
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Credit
Suisse First Boston LLC
As
Representatives of the several Underwriters
named
on Schedule I hereto
c/o
Wachovia Capital Markets, LLC
One
Wachovia Center
301
South
College Street
Charlotte,
North Carolina 28288
Ladies
and Gentlemen:
First
Industrial Realty Trust, Inc., a Maryland corporation (the "Company"),
by
this agreement (the "Agreement") proposes
to issue and sell to the Underwriters named in Schedule I
hereto
(collectively, the “Underwriters”)
for
whom Wachovia Capital Markets, LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Credit Suisse First Boston LLC are acting as representatives
(the “Representatives”),
6,000,000 depositary shares (the "Depositary
Shares"),
each
representing 1/10,000 of a share of the 7.25% Series J Cumulative Redeemable
Preferred Stock (the "Series
J Preferred Shares"),
having a liquidation preference equivalent to $25.00 per Depositary Share (the
"Securities")
to be
issued under a deposit agreement (the "Deposit
Agreement"),
between the Company and Computershare Trust Company, N.A., as Depositary (the
"Depositary").
The
Company and First Industrial, L.P., a Delaware limited partnership whose sole
general partner is the Company (the "Operating
Partnership"),
have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities
Act"),
a
registration statement (file number 333-117842) on Form S-3, including
the related prospectus (the "Base
Prospectus"),
relating to certain securities (the "Shelf
Securities") to
be issued from time to time by the Company or the Operating Partnership, as
the
case may be. The Company also has filed, or proposes to file, with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities (a "Prospectus
Supplement").
The
registration statement as amended to the date of this Agreement and including
any registration statement filed pursuant to Rule 462(b) under the
Securities Act (a "Rule 462(b) Registration
Statement") is
hereinafter referred to as the "Registration
Statement."
For
purposes of this Agreement, "Effective
Time"
with
respect to the Registration Statement means if the Company has advised the
Underwriters that it does not propose to amend such registration statement,
the
date and time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c). Any
reference in this Agreement to the Registration
Statement,
the Prospectus as defined hereunder or any preliminary prospectus (a
"preliminary
prospectus"),
as
the case may be, previously filed with the Commission pursuant to Rule 424
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act which were
filed under the Securities Exchange Act of 1934, as amended, and the rules
and
regulations of the Commission thereunder (collectively, the "Exchange
Act") on
or before the date of this Agreement or the date of the Registration Statement
or the Prospectus, as the case may be; and any reference to "amend," "amendment"
or "supplement" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include any documents filed under the Exchange
Act after the date of this Agreement, or the date of the Registration Statement
or the Prospectus, as the case may be, which are deemed to be incorporated
by
reference therein. "Registration
Statement" without reference to a time means the Registration Statement as
of
its Effective Time. "Registration Statement" as of any specified time means
the
Registration Statement in the form then filed with the Commission immediately
prior to that time, including any amendment thereto or any document incorporated
by reference therein and any prospectus deemed or retroactively deemed to be
a
part thereof that has not been superseded or modified. For purposes of the
previous sentence, information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430A shall be considered to be included in the
Registration Statement as of the time specified in Rule 430A. "Statutory
Prospectus"
as of
any specified time means the prospectus included in the Registration Statement
immediately prior to that time, including any document incorporated by reference
therein and any prospectus supplement deemed or retroactively deemed to be
a
part thereof that has not been superseded or modified. For purposes of the
preceding sentence, information contained in a form of prospectus that is deemed
retroactively to be a part of the Registration Statement pursuant to
Rule 430A shall be considered to be included in the Statutory Prospectus as
of the actual time that form of prospectus is filed with the Commission pursuant
to Rule 424(b) ("Rule 424(b)") under
the Securities Act. "Prospectus"
means
the Statutory Prospectus in the form first used (or made available upon request
of purchasers pursuant to Rule 173) in connection with confirmation of sales
of
the Securities that discloses the public offering price and other final terms
of
the Securities and otherwise satisfies Section 10(a) of the Securities
Act. "Issuer
Free Writing Prospectus"
means
any "issuer free writing prospectus," as defined in Rule 433, relating to
the Securities in the form filed or required to be filed with the Commission
or,
if not required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g). "General
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is intended for general distribution
to
prospective investors, as evidenced by its being specified as such in
Schedule
II
to this
Agreement. "Limited
Use Issuer Free Writing Prospectus"
means
any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus. "Applicable
Time"
means
5:00 p.m. (Eastern time) on the date of this Agreement. All
references in this Agreement to financial statements and schedules and other
information which is "contained," "included," "described" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated
by
reference in the Registration Statement or Prospectus, as the case may
be.
At
or
prior to the Applicable Time, the Company had prepared the following
information, (the “Applicable Time Information”): (1) the Issuer Free Writing
Prospectus referenced on Schedule II hereto, (2) the preliminary Prospectus
Supplement dated January 9, 2006 together with the Base Prospectus and (3)
any
filing under the 1934 Act which is deemed incorporated by reference in the
Registration Statement or the Prospectus.
The
Company hereby agrees with the Underwriters as follows:
1. The
Company agrees to issue and sell the Securities to each Underwriter as
hereinafter provided, and each Underwriter, on the basis of the representations,
warranties and agreements herein
2
contained,
but subject to the conditions hereinafter stated, agrees to purchase, severally
and not jointly, from the Company the number of Securities set forth opposite
such Underwriters’ name in Schedule I
hereto
at
a purchase price per Depositary Share of $24.2125
(the
"Purchase
Price") plus
accrued dividends, if any, from the date specified in Schedule III
hereto,
if any, to the date of payment and delivery.
2. The
Company understands that the several Underwriters intend (i) to make a
public offering (the "Offering") of
their respective portions of the Securities as soon after the execution of
this
Agreement as in the judgment of the Underwriters is advisable and
(ii) initially to offer the Securities upon the terms to be set forth in
the Prospectus.
3. Payment
for the Securities shall be made to the Company or to its order by wire transfer
in immediately available funds on the date and at the time and place set forth
in Schedule III
hereto
in the section entitled "Closing Date and Time of Delivery" (or at such other
time and place on the same or such other date, not later than the third Business
Day thereafter, as you and the Company may agree in writing). Such payment
will
be made upon delivery to, or to you for the respective accounts of, the
Underwriters of the Securities registered in such names and in such
denominations as you shall request not less than two full Business Days prior
to
the date of delivery, with any transfer taxes payable in connection with
transfer to the Underwriters duly paid by the Company. As used herein, the
term
"Business
Day"
means
any day other than a day on which banks are permitted or required to be closed
in New York City or the City of Chicago. The time and date of such payment
and
delivery with respect to the Securities are referred to herein as the
"Closing
Date."
The
Securities will be delivered through the book-entry facilities of The Depository
Trust Company ("DTC") and
will be made available for inspection by you by 1:00 p.m. New York City time
at
least 24 hours prior to the Closing Date at such place in New York City as
you,
DTC and the Company shall agree.
4. a) Each
of
the Company and the Operating Partnership severally covenants and agrees with
the Underwriters as follows:
(b) In
respect of the offering of the Securities, the Company will (i) prepare a
Prospectus Supplement setting forth the number of Securities covered thereby
and
their terms not otherwise specified in the Base Prospectus pursuant to which
the
Securities are being issued, the name of the Underwriters participating in
the
offering and the number of Securities which each severally has agreed to
purchase, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Underwriters and the Company deem appropriate in connection with the offering
of
the Securities, (ii) file the Statutory Prospectus in a form approved by
you pursuant to Rule 424
under
the Securities Act within the applicable time period prescribed by such rule
for
such filing (iii) file any Issuer Free Writing Prospectus to the extent required
by Rule 433 under the Securities Act; and file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale
of
the Securities; and (iv) furnish copies of the Statutory Prospectus to the
Underwriters and to such dealers as you shall specify in New York City prior
to
10:00 A.M., New York City time as soon as practicable after the date of
this Agreement in such quantities as you may reasonably request. The
Company has complied and will comply with Rule 433;
(c) The
Company will comply with the Securities Act and the Exchange Act so as to permit
the completion of the distribution of the Securities contemplated in this
Agreement and in the Registration Statement and the Prospectus. At any time
when
the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in
3
connection
with sales of Securities, the Company will advise you promptly and, if requested
by you, confirm such advice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus or other supplement or amendment to
the
Prospectus to be filed pursuant to the Securities Act, (iii) the receipt of
any comments from the Commission relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any of the transactions contemplated
by this Agreement, (iv) any request by the Commission for post-effective
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information, (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for such
purposes, and (vi) the happening of any event which makes any statement of
a material fact made in the Registration Statement, the Prospectus or the
Applicable Time Information untrue or which requires the making of any additions
to or changes in the Registration Statement, the Prospectus or the Applicable
Time Information in order to make the statements therein not misleading. The
Company will make every reasonable effort to prevent the issuance of any stop
order and, if at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time;
(d) The
Company will furnish to you, without charge, such number of conformed copies
of
the Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits and documents incorporated by reference,
as you may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to the Commission's Electronic Data Gathering and Retrieval
System ("EDGAR"),
except to the extent permitted by Regulation S-T;
(e) At
any
time when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of Securities, not to prepare, use, authorize, approve,
refer to or file any Issuer Free Writing Prospectus or any amendment to the
Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus of which
you
shall not previously have been advised or to which you or counsel for the
Underwriters shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration
Statement, Issuer Free Writing Prospectus, or amendment or supplement to the
Prospectus which, in the opinion of counsel for the Underwriters, may be
necessary in connection with the distribution of the Securities by you, and
to
use its reasonable best efforts to cause the same to become promptly effective.
If applicable, the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T;
(f) (i)
If,
at any time when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of Securities, any event shall occur as a result of
which, in the opinion of counsel for the Underwriters, it becomes necessary
to
amend or supplement the Prospectus in order to make the statements therein,
in
the light of the circumstances existing when the Prospectus is delivered to
a
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with any law, the Company will forthwith prepare and file
with the Commission an appropriate amendment or supplement to the Prospectus
(in
form and substance reasonably satisfactory to counsel for the
Underwriters) so that the statements in the Prospectus, as so amended or
supplemented, will not contain an untrue statement of a material fact or omit
to
state a material fact necessary in order to make the statements therein, in
the
light of the circumstances existing when it is so delivered, not misleading,
or
so that the Prospectus will comply with
4
any
law,
and to furnish to each Underwriter and to such dealers as the Representative
may
designate, such number of copies thereof as such Underwriter or dealers may
reasonably request and (ii) if any time prior to the Closing Date (1) any event
shall occur or condition shall exist as a result of which the Applicable Time
Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make
the statements therein, in the light of the circumstances, not misleading or
(2)
it is necessary to amend or supplement the Applicable Time Information to comply
with law, the Company will immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above; file with the Commission
(to the extent required) and furnish to each Underwriter and to such dealers
as
the Representative may designate, such amendments or supplements to the
Applicable Time Information as may be necessary so that the statements in the
Applicable Time Information as so amended or supplemented will not, in the
light
of the circumstances, be misleading or so that the Applicable Time Information
will comply with law;
(g) The
Company will use its reasonable best efforts, in cooperation with the
Underwriters, to qualify, register or perfect exemptions for the Securities
for
offer and sale by the several Underwriters to qualified institutions under
the
applicable state securities, Blue Sky and real estate syndication laws of such
jurisdictions as you may reasonably request; provided,
however,
the
Company will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders. In each jurisdiction in which the Securities have been so
qualified or registered, the Company will use all reasonable efforts to file
such statements and reports as may be required by the laws of such jurisdiction,
to continue such qualification or registration in effect for so long a period
as
the Underwriters may reasonably request for the distribution of the Securities
and to file such consents to service of process or other documents as may be
necessary in order to effect such qualification or registration; provided,
however,
the
Company will not be required to qualify as a foreign corporation, file a general
consent to service of process in any such jurisdiction, subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject, or provide any undertaking or make any change in its
charter or by-laws that the Board of Directors of the Company reasonably
determines to be contrary to the best interests of the Company and its
stockholders;
(h) To
make
generally available to the Company's stockholders as soon as reasonably
practicable but not later than 60 days after the close of the period covered
thereby (90 days in the event the close of such period is the close of the
Company's fiscal year), an earning statement (in form complying with the
provisions of Rule 158
of
the Securities Act) covering a period of at least twelve months after the
effective date of the Registration Statement (but in no event commencing later
than 90 days after such date) which shall satisfy the provisions of
Section 11(a) of the Securities Act, and, if required by Rule 158
of
the Securities Act, to file such statement as an exhibit to the next periodic
report required to be filed by the Company under the Exchange Act covering
the
period when such earning statement is released;
(i) During
the period when the Prospectus is (or but for the exemption in Rule 172
would
be) required to be delivered under the Securities Act or the Exchange Act
in connection with sales of the Securities, to file all documents required
to be
filed by it with the Commission pursuant to Section 13, 14 or 15 of the
Exchange Act within the time periods required by the Exchange Act;
(j) The
Company will pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Securities Act of
the
Registration Statement and any amendment thereto (including financial statements
and exhibits), the Prospectus and all amendments and supplements to any of
them
and
for
expenses incurred for preparing, printing and distributing any
5
Issuer
Free Writing Prospectuses to investors or prospective investors prior
to
or during the period specified in Section 4(e), (ii) the printing and
delivery of this Agreement, the Deposit Agreement and any Blue Sky Memorandum,
(iii) the qualification or registration of the Securities for offer and
sale under the state securities, Blue Sky or real estate syndication laws of
the
several states in accordance with Section 4(g) hereof, (iv) the
fee of and the filings and clearance, if any, with the National Association
of
Securities Dealers, Inc. (the "NASD") in
connection with the Offering, (v) the fees charged by nationally recognized
statistical rating organizations for the rating of the Securities
(vi) furnishing such copies of the Registration Statement, the preliminary
prospectus, the Prospectus, the Applicable Time Information and all amendments
and supplements thereto as may be requested for use in connection with the
offering or sale of the Securities by the Underwriters or by dealers to whom
Securities may be sold, (vii) the costs and charges of any transfer agent
or registrar, (viii) the cost and expense of the Depositary under the
Deposit Agreement, (ix) the preparation, issuance and delivery of
certificates for the Securities to the Underwriters, (x) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors, (xi) any transfer taxes imposed on the sale by the
Company of the Securities to the Underwriters and (xii) the fees and
disbursements of the Company's counsel and accountants;
(k) The
Company will use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by the Company prior
to
the Closing Date and to satisfy all conditions precedent to the delivery of
the
Securities;
(l) The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Registration Statement, the Applicable Time
Information and the Prospectus Supplement under "Use of Proceeds;"
(m) The
Company will use its best efforts to continue to qualify as a real estate
investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"),
unless the Company's board of directors determines that it is no longer in
the
best interests of the Company to be so qualified;
(n) The
Company will not, at any time, directly or indirectly, take any action intended,
or which might reasonably be expected to cause or result in, or which will
constitute stabilization of the price of the Securities to facilitate the sale
or resale of any Securities in violation of the Securities Act;
(o) The
Company will cooperate with the Representatives and use commercially reasonable
efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of DTC;
(p) For
the
period specified below (the "Lock-Up
Period"),
the
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of,
directly or indirectly, or file with the Commission a registration statement
under the Securities Act relating to, any additional shares of its Securities
or
securities convertible into or exchangeable or exercisable for any shares of
its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of the
Representatives except issuances of Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options or the exercise
of any other employee stock options outstanding on the date hereof. The
initial Lock-Up Period will commence on the date hereof and will continue and
include the date 45 days
after
the date of the Prospectus or such earlier date that the
Representatives consent
to in writing; provided,
however,
that if
(1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating to
the
Company occurs or (2) prior to the expiration of the initial Lock-Up
Period, the Company
6
announces
that it will release earnings results during the 16-day period beginning on
the
last day of the initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on the
date
of release of the earnings results or the occurrence of the materials news
or
material event, as applicable, unless the Representatives waive, in writing,
such extension. The Company will provide the Representatives with notice of
any
announcement described in clause (2) of the preceding sentence that gives
rise to an extension of the Lock-Up Period;
(q) Prior
to
the Closing Date, the Company will file articles supplementary pertaining to
the
Series J Preferred Shares (the “Series
J Articles Supplementary”) with
the Maryland State Department of Assessment and Taxation establishing and fixing
the rights and preferences of the Securities;
(r) The
Company will use its reasonable best efforts to take all reasonable action
necessary to enable Standard & Poor’s Corporation (“S&P”) and
Moody’s Investor Services, Inc. (“Moody’s”) or
any other nationally recognized rating organization to provide their respective
credit ratings; and
(s) The
Company will prepare and file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Securities Act the Prospectus.
5. Free
Writing Prospectuses.
The
Company represents and agrees that, unless it obtains the prior consent of
the
Underwriters, and the Underwriters represent and agree that, unless they obtain
the prior consent of the Company, neither the Company nor the Underwriters
have
made nor will make any offer relating to the Securities that would constitute
an
Issuer Free Writing Prospectus, or that would otherwise constitute a "free
writing prospectus," as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the Company and
the
Underwriters is hereinafter referred to as a "Permitted
Free Writing Prospectus."
The
Company represents that it has treated and agrees that it will treat each
Permitted Free Writing Prospectus as an "issuer free writing prospectus," as
defined in Rule 433, and has complied and will comply with the requirements
of Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely Commission filing where required, legending and record
keeping.
6. The
Company and the Operating Partnership, jointly and severally, represent and
warrant to each Underwriter as of the date hereof and at the Closing Date
that:
(a) The
Company and the Operating Partnership meet the requirements for use of
Form S-3, and the Registration Statement has been declared effective by the
Commission;
(b) The
Registration Statement and the Prospectus, including the financial statements,
schedules and related notes included in the Prospectus and, if applicable,
any
Issuer Free Writing Prospectus, as of the date hereof, as of the Applicable
Time
and at the time the Registration Statement became effective, and when any
post-effective amendment to the Registration Statement or Rule 462(b) Registration
Statement becomes effective or any amendment or supplement to the Prospectus
is
filed with the Commission, did or will comply in all material respects with
all
applicable provisions of the Securities Act and will contain all statements
required to be stated therein in accordance with the Securities Act. The
Prospectus, including the financial statements, schedules and related notes
included or incorporated by reference in the Prospectus, and if applicable,
any
Issuer Free Writing Prospectus, as the date hereof, as of the Applicable Time
and at the time the Registration Statement became effective, and at the Closing
Date, and when any post-effective amendment to the Registration Statement or
Rule 462(b) Registration
Statement becomes effective or any amendment or supplement to the Prospectus
is
filed with the Commission, did or will comply in all material respects with
all
applicable provisions of
7
the
Securities Act and will contain all statements required to be stated therein
in
accordance with the Securities Act. On the date the Registration Statement
was
declared effective, on the date hereof, as of the Applicable Time, on the date
of filing of any Rule 462(b) Registration
Statement and on the Closing Date no part of the Registration Statement or
any
amendment did or will contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading. On the date the Registration
Statement was declared effective, on the date hereof, as of the Applicable
Time,
on the date of filing of any Rule 462(b) Registration
Statement and at the Closing Date, the Prospectus did not and will not contain
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company and the Operating Partnership will have complied or will comply
with
the requirements of Rule 111
under
the Securities Act relating to the payment of filing fees therefor. The
foregoing representations and warranties in this Section 6(b) do not
apply to any statements or omissions made in reliance on and in conformity
with
information relating to any Underwriters furnished in writing to the Company
or
the Operating Partnership by the Underwriters specifically for inclusion in
the
Registration Statement or Prospectus or any amendment or supplement thereto.
Neither the Company nor the Operating Partnership has distributed, and prior
to
the later of the Closing Date and the completion of the distribution of the
Securities, will not distribute, any offering material in connection with the
offering or sale of the Securities other than the Registration Statement, the
preliminary prospectus, the Prospectus or any other materials, if any, permitted
by the Securities Act (which were disclosed to the Underwriters and the
Underwriters' counsel and are listed on Schedule II
hereof
other than documents referred to in clause (c) of
Section 6(f)).
(c) Each
preliminary prospectus supplement, filed pursuant to Rule 424
under
the Securities Act and each 462(b) Registration Statement, if any, complied
or will comply when so filed in all material respects with all applicable
provisions of the Securities Act; did not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of Securities will, at
the
time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T;
(d) The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement, the Prospectus and the Applicable Time Information
pursuant to Item 12 of Form S-3 under the Securities Act, at the time they
were, or hereafter are, filed with the Commission, complied and will comply
in
all material respects with the requirements of the Exchange Act, and, when
read
together with other information included in, and incorporated by reference
in,
the Registration Statement, the Prospectus and the Applicable Time Information,
at the time the Registration Statement became effective, as of the date of
the
Prospectus, the Applicable Time and as of the Closing Date, or during the period
specified in Section 4(e) did not and will not include an untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The foregoing representations and warranties in this
Section 6(d) do not apply to any statements or omissions made in
reliance on and in conformity with information relating to any Underwriters
furnished in writing to the Company or the Operating Partnership by the
Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto;
(e) At
the
time of filing the Registration Statement and at the date of this Agreement,
each of the Company and the Operating Partnership was not and is not an
"ineligible issuer," as defined in Rule 405, including as a result of
(x) the Company, the Operating Partnership or any other subsidiary in the
preceding three years having been convicted of a felony or misdemeanor or having
been made the
8
subject
of a judicial or administrative decree or order as described in Rule 405
and (y) the Company or the Operating Partnership in the preceding three
years having been the subject of a bankruptcy petition or insolvency or similar
proceeding, having had a registration statement be the subject of a proceeding
under Section 8 of the Securities Act or being the subject of a proceeding
under Section 8A of the Securities Act in connection with the offering of
the Securities, all as described in Rule 405.
(f) As
of the
Applicable Time, neither the Applicable Time Information, nor any individual
Limited Use Issuer Free Writing Prospectus, included any untrue statement of
a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading. The preceding sentence does not apply to statements in
or
omissions from any prospectus included in the Registration Statement or any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Representatives specifically for
use
therein, it being understood and agreed that the only such information furnished
by the Underwriters consists of the information described in the second
paragraph of Section 7 hereof. No statement of material fact included in the
Prospectus has been omitted from the Applicable Time Information and no
statement of material fact included in the Applicable Time Information that
is
required to be included in the Prospectus has been omitted
therefrom.
(g) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Securities or until
any earlier date that the Company notified or notifies the Underwriters as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information then contained in the Registration
Statement or included or would include an untrue statement of a material fact
or
omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, (i) the Company has promptly notified or
will promptly notify the Underwriters and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or omission. The
foregoing two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriters specifically for use
therein, it being understood and agreed that the only such information furnished
by the Underwriters consists of the information described as such in the second
paragraph of Section 7 hereof.
(h) The
Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not made, used, prepared, authorized, approved
or
referred to and will not prepare, make, use, authorize, approve or refer to
any
Issuer Free Writing Prospectus other than (i) any document not constituting
a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Schedule II
hereto
and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been filed in accordance with
the
Securities Act (to the extent required thereby) and did not, and at the Closing
Date will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the
Company makes no representation and warranty with respect to any statements
or
omissions made in each such Issuer Free Writing Prospectus in reliance upon
and
in conformity withinformation relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly
for
use in any Issuer Free Writing Prospectus.
9
(i) The
Company has been duly organized and is validly existing as a corporation under
and by virtue of the laws of the State of Maryland, and is in good standing
with
the State Department of Assessments and Taxation of Maryland. The Operating
Partnership has been duly organized and is validly existing as a limited
partnership in good standing under and by virtue of the Delaware Revised Uniform
Limited Partnership Act. Each of First Industrial Financing Partnership, L.P.
(the "Financing
Partnership"),
First
Industrial Securities, L.P. ("Securities,
L.P."),
First
Industrial Mortgage Partnership, L.P. (the "Mortgage
Partnership"),
First
Industrial Pennsylvania, L.P. ("FIP"),
First
Industrial Harrisburg, L.P. ("FIH") and
First Industrial Indianapolis, L.P. ("FII") (the
Financing Partnership, Securities, L.P., the Mortgage Partnership, FIP, FIH
and
FII are referred to collectively herein as the "Partnership
Subsidiaries") has
been duly organized and is validly existing as a limited partnership in good
standing under and by virtue of the laws of its jurisdiction of organization.
Each of First Industrial Securities Corporation ("FISC"),
First
Industrial Indianapolis Corporation ("FIIC"),
First
Industrial Finance Corporation ("FIFC"),
First
Industrial Mortgage Corporation ("FIMC"),
First
Industrial Development Services, Inc. ("FIDSI") and
First Industrial Pennsylvania Corporation ("FIPC"),
(FISC, FIIC, FIFC, FIMC, FIDSI and FIPC are referred to collectively herein
as
the "Corporate
Subsidiaries"),
FR
First Cal, LLC, ("FR
First Cal"),
FR
Bucks Property Holding, L.P. ("FR
Bucks"),
FR
Lehigh Property Holding, L.P. ("FR
Lehigh"),
FR
Aberdeen, LLC ("FR
Aberdeen"),
FR
Lackawanna Property Holding, LP ("FR
Lackawanna"),
FR
Park Plaza, LLC, ("FR
Park"),
First
Industrial Acquisitions, Inc. ("FIAI"),
First
Industrial Harrisburg Corporation ("FIHC"),
and
FI Development Services Corporation ("FIDSC") (FR
First Cal, FR Bucks, FR Lehigh, FR Aberdeen, FR Lackawanna, FR Park, FIAI,
FIHC,
and FIDSC are referred to collectively herein as the "Additional
Subsidiaries,"
and
the Partnership Subsidiaries, the Corporate Subsidiaries and the Additional
Subsidiaries are referred to herein collectively as the "Subsidiaries"
or
individually as a "Subsidiary"),
has
been duly organized and is validly existing as a corporation in good standing
under and by virtue of the laws of its jurisdiction of incorporation. Other
than
the Corporate Subsidiaries, the Partnership Subsidiaries and the Additional
Subsidiaries, no entity in which the Company owns any equity securities
constitute, individually or in the aggregate, is a "significant subsidiary"
under Rule 1-02 of Regulation S-X (substituting "net income" for "income from
continuing operations") promulgated under the Exchange Act. The Company is
the sole general partner of the Operating Partnership. FIFC is a wholly-owned
subsidiary of the Company and is the sole general partner of the Financing
Partnership. FIMC is a wholly-owned subsidiary of the Company and is the sole
general partner of the Mortgage Partnership. FISC is a wholly-owned subsidiary
of the Company and is the sole general partner of Securities, L.P. The Operating
Partnership and FISC are the only limited partners of Securities, L.P. FIPC
is a
wholly-owned subsidiary of the Company and is the sole general partner of FIP.
FIIC is a wholly-owned subsidiary of the Company and is the sole general partner
of FII. FIHC is a wholly-owned subsidiary of the Company and is the sole general
partner of FIH. FIDSI is a wholly-owned subsidiary of the Operating Partnership.
The Operating Partnership is the sole limited partner of each Partnership
Subsidiary (except for Securities, L.P.). The Company, the Operating Partnership
and each
of
the Subsidiaries has, and at the Closing Date will have, full corporate,
partnership or limited liability company power and authority, as the case may
be, to conduct all the activities conducted by it, to own, lease or operate
all
the properties and other assets owned, leased or operated by it and to conduct
its business in which it engages or proposes to engage as described in the
Prospectus and
the
transactions contemplated hereby. The Company and each of the Corporate
Subsidiaries is, and at the Closing Date will be, duly qualified or registered
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the properties and assets owned, leased or operated by it makes
such qualification or registration necessary, except where failure to obtain
such qualifications or registration will not have a material adverse effect
on
(i) the condition, financial or otherwise, or the earnings, assets or
business affairs or prospects of the Operating Partnership, Company and their
Subsidiaries, taken as a whole or on the 846 in service properties owned,
directly or indirectly, by the Company as of September 30, 2005 (the
"Properties") taken
as a whole, (ii) the issuance, validity or enforceability of the Securities
or (iii) the consummation of any of the transactions contemplated by this
Agreement (each a "Material
Adverse
10
Effect").
The
Operating Partnership and each of the Partnership Subsidiaries is, and at the
Closing Date will be, duly qualified or registered to do business and in good
standing as a foreign limited partnership in all jurisdictions in which the
nature of the activities conducted by it or the character of the assets owned,
leased or operated by it makes such qualification or registration necessary,
except where failure to obtain such qualification or registration will not
have
a Material Adverse Effect. Complete and correct copies of the charter documents,
partnership agreements and other organizational documents of the Company and
its
Subsidiaries and all amendments thereto as have been requested by the
Underwriters or their counsel have been delivered to the Underwriters or their
counsel.
(j) The
Company's authorized capitalization consists of 10,000,000 shares of preferred
stock, par value $.01 per share, 100,000,000 shares of common stock, par value
$.01 per share, and 65,000,000 shares of excess stock, par value $.01 per share.
All of the Company's issued and outstanding shares of common stock and preferred
stock have been duly authorized and are validly issued, fully paid and
non-assessable and will have been offered and sold in compliance, in all
material respects, with all applicable laws (including, without limitation,
federal or state securities laws). The Securities have been duly authorized
for
issuance and sale to the Underwriters pursuant to this Agreement and, when
validly issued and delivered pursuant to this Agreement against payment of
the
Purchase Price, will be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar right and
will have been offered and sold in compliance, in all material respects, with
all applicable laws (including, without limitation, federal or state securities
laws). The description of the Securities, and the statements related thereto,
contained in the Registration Statement or the Prospectus are, and at the
Closing Date, will be, complete and accurate in all material respects. Upon
payment of the Purchase Price and delivery of certificates representing the
Securities in accordance herewith, each of the Underwriters will receive good,
valid and marketable title to the Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities. The
form of depositary receipts to be used to evidence the Securities will be in
due
and proper form and will comply, in all material respects, with all applicable
legal requirements. No shares of common or preferred stock of the Company are
reserved for any purpose other than securities to be issued pursuant to this
Agreement and except as disclosed in the Prospectus.
(k) The
partnership agreement of the Operating Partnership is duly authorized, executed
and delivered by the Company, as general partner and a limited partner, and
the
partnership agreement of each Partnership Subsidiary is duly authorized, validly
executed and delivered by each partner thereto and (assuming in the case of
the
Operating Partnership the due authorization, execution and delivery of the
partnership agreement by each limited partner other than the Company) each
such partnership agreement will be a valid, legally binding and enforceable
in
accordance with its terms immediately following the Closing Date subject to
(i) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered in
a
proceeding in equity or at law, and the discretion of the court before which
any
proceeding therefor may be brought. All of the issued and outstanding shares
of
capital stock of the Company and each Corporate Subsidiary, all of the
outstanding units of general, limited and/or preferred partner interests of
the
Operating Partnership and each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid and non-assessable; and (except
as
described in the Prospectus) will be owned directly or indirectly (except
in the case of the Company) by the Company or the Operating Partnership, as
the case may be, free and clear of all security interests, liens and
encumbrances (except for pledges in connection with the loan agreements of
the
Company, the Operating Partnership and the Subsidiaries), and all of the
partnership interests in each Partnership Subsidiary will have been duly
authorized and are validly issued, fully paid, and (except as described in
the
Prospectus) will be owned directly or indirectly by the Company or the
Operating Partnership, free and clear of all security interests, liens and
11
encumbrances
(except for pledges in connection with the loan agreements of the Company,
the
Operating Partnership and the Subsidiaries);
(l) The
financial statements, supporting schedules and related notes included in, or
incorporated by reference in, the Registration Statement, the Applicable Time
Information and the Prospectus comply in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the consolidated financial condition of the entity or entities
or
group presented or included therein, as of the respective dates thereof, and
its
consolidated results of operations and cash flows for the respective periods
covered thereby, are all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period involved,
except as otherwise disclosed in the Prospectus. The financial information
and
data included in the Registration Statement, the Applicable Time Information
and
the Prospectus present fairly the information included or incorporated by
reference therein and have been prepared on a basis consistent, except as may
be
noted therein, with that of the financial statements, schedules and notes
included or incorporated by reference in the Registration Statement, the
Applicable Time Information and the Prospectus and the books and records of
the
respective entity or entities or group presented or included therein. Except
as
otherwise noted in the Registration Statement, the Applicable Time Information
and the Prospectus, pro forma and/or as adjusted financial information included
or incorporated by reference in the Registration Statement, Applicable Time
Information and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and the American Institute of
Certified Public Accountants ("AICPA") guidelines
with respect to pro forma and as adjusted financial information, and includes
all adjustments necessary to present fairly the pro forma and/or as adjusted
financial condition of the entity or entities or group presented or included
therein at the respective dates indicated and the results of operations and
cash
flows for the respective periods specified. The Company's and the Operating
Partnership's ratio of earnings to fixed charges and preferred stock dividends
to earnings included in the Prospectus and in Exhibit 12.1 to the current report
on Form 8-K filed by the Operating Partnership on December 9,
2005
have
been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. No other financial statements (or schedules) of the
Company, the Operating Partnership and the Partnership Subsidiaries or any
predecessor of the Company and/or the Operating Partnership and the Partnership
Subsidiaries are required by the Securities Act or the Exchange Act to be
included in the Registration Statement, the Applicable Time Information or
the
Prospectus. PricewaterhouseCoopers LLP (the "Accountants") who
have reported on such financial statements, schedules and related notes, are
independent registered public accountants with respect to the Company, the
Operating Partnership and the Partnership Subsidiaries with the applicable
rules
and regulations adopted by the Commission and the Public Accounting Oversight
Board (United States) and as required by the Securities Act, and there have
been
no disagreements with any accountants or "reportable events" (as defined in
Item 304 of Regulation S-K promulgated by the
Commission) required to be disclosed in the Prospectus or elsewhere
pursuant to such Item 304 which have not been so disclosed;
(m) Subsequent
to the respective dates as of which information is given in the Registration
Statement, the Applicable Time Information and the Prospectus and prior to
the
Closing Date, (i) there has not been and will not have been, except as set
forth in or contemplated by the Registration Statement, the Applicable Time
Information, the Prospectus and this Agreement, any change in the
capitalization, long term or short term debt or in the capital stock or equity
of each of the Company, the Operating Partnership or any of the Subsidiaries
which would be material to the Company, the Operating Partnership and the
Subsidiaries considered as one enterprise (anything which would be material
to
the Operating Partnership, the Company and the Subsidiaries, considered as
one
enterprise, being hereinafter referred to as "Material"),
(ii) except as described in the Registration Statement,the Applicable Time
Information or the Prospectus, neither the Operating Partnership, the Company
nor any of the Subsidiaries has incurred nor will any of them incur any
liabilities or obligations, direct or contingent, which would be Material,
nor
has any of them entered into nor will any of them enter into any
12
transactions,
other than pursuant to this Agreement and the transactions referred to herein
or
as contemplated in the Registration Statement, the Applicable Time Information,
the Prospectus and this Agreeement, which would be Material, (iii) there
has not been any Material Adverse Effect, (iv) except for regular quarterly
distributions on the Company's shares of common stock, par value $0.01 per
share
(the "Common
Stock"),
and
the dividends on, and any distributions on redemption of, the shares of the
Company's (a) Depositary Shares each representing 1/100 of a share of 8⅝%
Series C Cumulative Preferred Stock (the "Series
C Preferred Stock"),
(b) Depositary Shares each representing 1/100 of a share of 6.236% Series F
Flexible Cumulative Redeemable Preferred Stock (the "Series
F Preferred Stock"),
(c) Depositary Shares each representing 1/100 of a share of 7.236% Series G
Flexible Cumulative Redeemable Preferred Stock (the "Series
G Preferred Stock"),
or
(d) Depositary Shares each representing 1/10,000
of a
share of Series I Flexible Cumulative Redeemable Preferred Stock (the
"Series
I Preferred Stock"),
the
Company has not paid or declared and will not pay or declare any dividends
or
other distributions of any kind on any class of its capital stock, and
(v) except for distributions in connection with regular quarterly
distributions on partnership units, the Operating Partnership has not paid
any
distributions of any kind on its partnership units;
(n) None
of
the Company, the Operating Partnership or any of the Subsidiaries is, or as
of
the Closing Date will be, required to be registered under the Investment Company
Act of 1940, as amended (the "1940
Act");
(o) To
the
knowledge of the Company or the Operating Partnership, after due inquiry, except
as set forth in the Registration Statement, the Applicable Time Information
and
the Prospectus, there are no actions, suits, proceedings, investigations or
inquiries, pending or, after due inquiry, threatened against or affecting the
Operating Partnership, the Company or any of the Subsidiaries or any of their
respective officers or directors in their capacity as such or of which any
of
their respective properties or assets or any Property is the subject or bound,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding would reasonably be expected to
have
a Material Adverse Effect;
(p) The
Company, the Operating Partnership and each of the Subsidiaries (i) has,
and at the Closing Date will have, (A) all governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to carry on
its
business as contemplated in the Registration Statement, the Applicable Time
Information or the Prospectus and are in material compliance with such, and
(B) complied in all material respects with all laws, regulations and orders
applicable to it or its business and (ii) are not, and at the Closing Date
will not be, in breach of or default in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract, joint venture or partnership
agreement or other agreement or instrument (collectively, a "Contract
or Other Agreement") or
under any applicable law, rule, order, administrative regulation or
administrative or court decree to which it is a party or by which any of its
other assets or properties or by which the Properties are bound or affected,
except where such default, breach or failure will not, either singly or in
the
aggregate, have a Material Adverse Effect. To the knowledge of the Operating
Partnership, the Company and each of the Subsidiaries, after due inquiry, no
other party under any Material contract or other agreement to which it is a
party is in default thereunder, except where such default will not have a
Material Adverse Effect. None of the Operating Partnership, the Company or
any
of the Subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its articles of incorporation, by-laws,
certificate of limited partnership, partnership agreement or other
organizational document, as the case may be;
13
(q) No
Material consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body or any other entity
is required in connection with the offering, issuance or sale of the Securities
hereunder except such as have been obtained under the Securities Act, the
Exchange Act and such as may be required under state securities, Blue Sky or
real estate syndication laws or the by-laws, the corporate financing rules
or
the conflict of interest rules of the National Association of Securities
Dealers, Inc. (the “NASD”) in connection with the purchase and distribution by
the Underwriters of the Securities or such as have been received prior to the
date of this Agreement, and except for the filing of this Agreement and the
form
of Securities with the Commission as exhibits to a Form 8-K, which the
Company agrees to make in a timely manner;
(r) The
Company and the Operating Partnership have full corporate or partnership power,
as the case may be, to enter into each of this Agreement and the Deposit
Agreement and to execute, deliver and file the Series J Articles Supplementary,
to the extent each is a party thereto. This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating Partnership,
to the extent a party thereto, constitutes a valid and binding agreement of
the
Company and the Operating Partnership, and assuming due authorization, execution
and delivery by the Underwriters, and is enforceable against the Operating
Partnership in accordance with the terms hereof and thereof, subject to
(i) the effect of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors and (ii) the
effect of general principles of equity, whether enforcement is considered in
a
proceeding in equity or at law, and the discretion of the court before which
any
proceeding therefor may be brought. The execution, delivery and performance
of
this Agreement, the Series J Articles Supplementary and the Deposit Agreement
and the consummation of the transactions contemplated hereby, and compliance
by
each of the Company, the Operating Partnership and the Subsidiaries with its
obligations hereunder to the extent each is a party thereto, will not result
in
the creation or imposition of any lien, charge or encumbrance upon any of the
assets or properties of the Operating Partnership, the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a breach
or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under,
or
result in the acceleration of any obligation under, (a) the certificate of
incorporation, by-laws, certificate of limited partnership, partnership
agreement or other organizational documents of the Operating Partnership, the
Company or any of the Subsidiaries, (b) any Contract or Other Agreement to
which the Company, the Operating Partnership or any of the Subsidiaries is
a
party or by which the Company, the Operating Partnership or any of the
Subsidiaries or any of their assets or properties are bound or affected, or
violate or conflict with (c) any judgment, ruling, decree, order, statute,
rule or regulation of any court or other governmental agency (foreign or
domestic) or body applicable to the business or properties of the Operating
Partnership, the Company or any of the Subsidiaries or to the Properties, in
each case (other than with respect to subclause (a) of this sentence as it
applies to the Company, the Operating Partnership and their significant
subsidiaries (as defined in Section 6(i)) except for liens, charges,
encumbrances, breaches, violations, defaults, rights to terminate or accelerate
obligations, or conflicts, the imposition or occurrence of which would not
have
a Material Adverse Effect;
(s) As
of the
Closing Date, the Company, the Operating Partnership and each of the
Subsidiaries will have good and marketable title to all properties and assets
described in the Registration Statement, the Applicable Time Information and
the
Prospectus as owned by it, free and clear of all liens, encumbrances, claims,
security interests and defects, except such as are described in the Registration
Statement, the Applicable Time Information or the Prospectus, or such as secure
the loan facilities of the Operating Partnership, the Company and the
Subsidiaries, or would not result in a Material Adverse Effect;
14
(t) The
Deposit Agreement has been duly authorized by the Company and, at the Closing
Date, will have been duly executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the Deposit Agreement by the other
respective parties thereto, the Deposit Agreement will, at the Closing Date,
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms (except to the extent that enforcement
thereof may be limited by (i) the effect of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or
hereafter in effect relating to or affecting the rights and remedies of
creditors and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought),
and the Deposit Agreement will conform in all material respects to all
statements relating thereto contained in the Prospectus;
(u) The
Company is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and files reports
with the Commission on EDGAR.
(v) To
the
knowledge of the Company: (i) no lessee of any portion of the Properties is
in default under any of the leases governing such Properties and there is no
event which, but for the passage of time or the giving of notice, or both,
would
constitute a default under any of such leases, except in each case such defaults
that would not have a Material Adverse Effect; (ii) the current use and
occupancy of each of the Properties complies in all material respects with
all
applicable codes and zoning laws and regulations, except for such failures
to
comply which would not individually or in the aggregate have a Material Adverse
Effect; and (iii) there is no pending or threatened condemnation, zoning
change, environmental or other proceeding or action that will in any material
respect affect the size of, use of, improvements on, construction on, or access
to the Properties except such proceedings or actions that would not have a
Material Adverse Effect;
(w) The
Operating Partnership, the Company and the Partnership Subsidiaries have
property, title, casualty and liability insurance in favor of the Operating
Partnership, the Company or the Partnership Subsidiaries with respect to each
of
the Properties, in an amount and on such terms as is reasonable and customary
for businesses of the type conducted by the Operating Partnership, the Company
and the Partnership Subsidiaries except in such instances where the tenant
is
carrying such insurance or the tenant is self-insuring such risks;
(x) Except
as
disclosed in the Registration Statement, the Applicable Time Information and
the
Prospectus, and except for activities, conditions, circumstances or matters
that
would not have a Material Adverse Effect, (i) to the knowledge of the
Company and the Subsidiaries, after due inquiry, the operations of the Operating
Partnership, the Company and the Subsidiaries are in compliance with all
Environmental Laws (as defined below) and all requirements of applicable
permits, licenses, approvals and other authorizations issued pursuant to
Environmental Laws; (ii) to the knowledge of the Operating Partnership, the
Company and the Subsidiaries, after due inquiry, none of the Operating
Partnership, the Company or the Subsidiaries has caused or suffered to occur
any
Release (as defined below) of any Hazardous Substance (as defined
below) into the Environment (as defined below) on, in, under or from
any Property, and no condition exists on, in, under or adjacent to any Property
that could reasonably be expected to result in the incurrence of liabilities
under, or any violations of, any Environmental Law or give rise to the
imposition of any Lien (as defined below), under any Environmental Law;
(iii) none of the Operating Partnership, the Company or the Subsidiaries
has received any written notice of a claim under or pursuant to any
Environmental Law or under common law pertaining to Hazardous Substances on,
in,
under or originating from any Property; (iv) none of the Operating
Partnership, the Company or the Subsidiaries has actual knowledge of, or
received any written notice from any Governmental Authority (as defined
below) claiming, any violation of any Environmental Law or a determination
to undertake and/or request the investigation, remediation, clean-up or removal
of any Hazardous Substance released
15
into
the
Environment on, in, under or from any Property; and (v) no Property is
included or, to the knowledge of the Operating Partnership, the Company or
the
Subsidiaries, after due inquiry, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA"),
or
included on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and none of the
Operating Partnership, the Company or the Subsidiaries has actual knowledge
that
any Property has otherwise been identified in a published writing by the EPA
as
a potential CERCLA removal, remedial or response site or, to the knowledge
of
the Company and its Subsidiaries, is included on any similar list of potentially
contaminated sites pursuant to any other Environmental Law;
As
used
herein, "Hazardous
Substance"
shall
include any hazardous substance, hazardous waste, toxic substance, pollutant
or
hazardous material, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing materials,
PCBs, pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste which
is
subject to regulation under any Environmental Law (including, without
limitation, materials listed in the United States Department of Transportation
Optional Hazardous Material Table, 49 C.F.R. § 172.101, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part 302);
"Environment"
shall
mean any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient, workplace and indoor
and outdoor air; "Environmental
Law"
shall
mean the Comprehensive Environmental Response, Compensation and Liability Act
of
1980, as amended (42 U.S.C. § 9601 et seq.) ("CERCLA"),
the
Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
§ 6901, et seq.), the Clean Air Act, as amended (42 U.S.C. § 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. § 1251, et seq.), the
Toxic Substances Control Act, as amended (15 U.S.C. § 2601, et seq.),
the Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
§ 651, et seq.), the Hazardous Materials Transportation Act, as amended (49
U.S.C. § 1801, et seq.), and all other federal, state and local laws,
ordinances, regulations, rules and orders relating to the protection of the
environment or of human health from environmental effects; "Governmental
Authority"
shall
mean any federal, state or local governmental office, agency or authority having
the duty or authority to promulgate, implement or enforce any Environmental
Law;
"Lien"
shall
mean, with respect to any Property, any mortgage, deed of trust, pledge,
security interest, lien, encumbrance, penalty, fine, charge, assessment,
judgment or other liability in, on or affecting such Property; and "Release"
shall
mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the abandonment
or discard of barrels, containers, tanks (including, without limitation,
underground storage tanks) or other receptacles containing or previously
containing and containing a residue of any Hazardous Substance.
None
of
the environmental consultants which prepared environmental and asbestos
inspection reports with respect to any of the Properties was employed for such
purpose on a contingent basis or has any substantial interest in the Operating
Partnership, the Company or any of the Subsidiaries, and none of them nor any
of
their directors, officers or employees is connected with the Operating
Partnership, the Company or any of the Subsidiaries as a promoter, selling
agent, voting trustee, director, officer or employee.
(y) The
Company, the Operating Partnership and the Subsidiaries are organized and
operate in a manner so that the Company qualifies as a real estate investment
trust (“REIT”) under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the “Code”) and the Company has elected to be taxed as a REIT
under the Code commencing with the taxable year ended
16
December
31, 1994. The Company, the Operating Partnership and the Subsidiaries intend
to
continue to be organized and operate so that the Company shall qualify as a
REIT
for the foreseeable future, unless the Company's board of directors determines
that it is no longer in the best interests of the Company to be so
qualified;
(z) There
is
no material document or contract of a character required to be described or
referred to in the Registration Statement, the Applicable Time Information
or
the Prospectus or to be filed as an exhibit to the Registration Statement which
is not described or filed as required therein, except for the filing of this
Agreement, the Deposit Agreement and the form of Securities with the Commission
as exhibits to a Form 8-K, which the Company agrees to make in a timely
manner, and the descriptions thereof or references thereto are accurate in
all
material respects;
(aa) None
of
the Operating Partnership, the Company or any of the Subsidiaries is involved
in
any labor dispute nor, to the knowledge of the Operating Partnership, the
Company or the Subsidiaries, after due inquiry, is any such dispute threatened
which would be Material;
(bb) The
Operating Partnership, the Company and the Subsidiaries own, or are licensed
or
otherwise have the full exclusive right to use, all material trademarks and
trade names which are used in or necessary for the conduct of their respective
businesses as described in the Prospectus. To the knowledge of the Company
or
the Operating Partnership, no claims have been asserted by any person to the
use
of any such trademarks or trade names or challenging or questioning the validity
or effectiveness of any such trademark or trade name. The use, in connection
with the business and operations of the Operating Partnership, the Company
and
the Subsidiaries, of such trademarks and trade names does not, to the Company's
or the Operating Partnership's knowledge, infringe on the rights of any
person;
(cc) Each
of
the Operating Partnership, the Company and the Subsidiaries has filed all
federal, state, local and foreign income tax returns which have been required
to
be filed (except in any case in which the failure to so file would not result
in
a Material Adverse Effect) and has paid all taxes required to be paid and
any other assessment, fine or penalty levied against it, to the extent that
any
of the foregoing would otherwise be delinquent, except, in all cases, for any
such tax, assessment, fine or penalty that is being contested in good faith
and
except in any case in which the failure to so pay would not result in a Material
Adverse Effect;
(dd) The
Operating Partnership and each of the Partnership Subsidiaries is properly
treated as a partnership for U.S. federal income tax purposes and not as a
"publicly traded partnership;"
(ee) No
relationship, direct or indirect, exists between or among the Company, the
Operating Partnership or the Subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company, the Operating
Partnership or the Subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the Prospectus
which is not so described in such documents and in the Applicable Time
Information;
(ff) The
Company has not taken and will not take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Securities, and the Company
and the Operating Partnership have not distributed and have agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Securities other than the Prospectus, any preliminary
prospectus filed with the Commission or other material permitted by the
Securities Act (which were disclosed to you and your counsel);
17
(gg) The
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets, financial and corporate
books and records is permitted only in accordance with management's general
or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action
is
taken with respect to any differences;
(hh) Any
certificate or other document signed by any officer or authorized representative
of the Operating Partnership, the Company or any Subsidiary, and delivered
to
the Underwriters or to counsel for the Underwriters in connection with the
sale
of the Securities shall be deemed a representation and warranty by such entity
or person, as the case may be, to each Underwriters as to the matters covered
thereby;
(ii) The
Securities will have an investment grade rating from one or more nationally
recognized statistical rating organizations as specified in Schedule III
hereto;
(jj) The
Registration Statement has been declared effective by the Commission under
the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceeding for that purpose
has been instituted, or to the knowledge of the Company or the Operating
Partnership, threatened by the Commission or by the state securities authority
of any jurisdiction. No order preventing or suspending the use of the Prospectus
or any preliminary prospectus has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of the Company, threatened by the
Commission or by the state securities authority of any
jurisdiction.
(kk) Except
for contracts, agreements or understandings entered into in connection with
the
transfer of properties or other assets to the Operating Partnership, there
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to include any Common
Stock of the Company owned or to be owned by such person in the offering
contemplated by this Agreement.
(ll)
The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 under the Exchange Act), which (i) are
designed to ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to each of the Company's principal
executive officer and principal financial officer by others within those
entities, particularly during the period which the Company’s quarterly report on
Form 10-Q for the quarter ended September 30, 2005 was prepared; (ii) have
been evaluated for effectiveness as of the date of the filing of the Prospectus
Supplement with the Commission; and (iii) are effective in all material
respects to perform the functions for which they were established, except where
a failure to be so effective will not have a Material Adverse Effect.
(mm) Based
on
its evaluation of its internal controls over financial reporting at December
31,
2004, the Company, the Operating Partnership and their subsidiaries are not
aware of (i) any significant deficiency or material weakness in the design
or operation of internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting. Since the date
of the most recent evaluation of such disclosure controls and procedures, there
have been no changes in internal controls over financial reporting of the
Company, the Operating Partnership or their subsidiaries or in other factors
that has materially affected, or is reasonably
18
likely
to
materially affect, the Company, the Operating Partnership or their subsidiaries’
internal control over financial reporting.
(nn) There
is
and has been no failure on the part of the Operating Partnership or any of
the
Operating Partnership’s directors or officers, in their capacities as such, to
comply with any provision of the Sarbanes Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Sarbanes Oxley Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
7. The
Company and the Operating Partnership, jointly and severally, agree to indemnify
and hold harmless the Underwriters and each person, if any, who controls any
Underwriters within the meaning of either Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including without limitation the legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
each
Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus
(as
amended or supplemented if the Company or the Operating Partnership shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriters furnished to the Company or the Operating
Partnership in writing by such Underwriters through you expressly for use
therein.
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company and the Operating Partnership, and the Company's and the Operating
Partnership's officers and directors and each person who controls the Company
or
the Operating Partnership within the meaning of Section 15 of the
Securities Act and Section 20(a) of the Exchange Act, to the same
extent as the foregoing indemnity from the Company and the Operating Partnership
to such Underwriter, but only with reference to information relating to each
Underwriters furnished to the Company and the Operating Partnership in writing
by such Underwriters through you expressly for use in the Registration
Statement, each
Statutory Prospectus, the Prospectus, any Issuer Free Writing Prospectus,
any
amendment or supplement thereto. For purposes of this Section 7 and
Sections 8(b), (f) and (g) the only written information furnished
by the Underwriters to the Company expressly for use in the Registration
Statement and the Prospectus Supplement is the information in the fourth (last
two sentences only), sixth and ninth paragraphs under the caption
"Underwriting."
If
any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified
Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying
Person") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person
shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to
the
contrary, (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded
parties) include both the Indemnifying Person and the Indemnified Person
and representation of both parties by the same counsel would be inappropriate
due to actual or potential
19
differing
interests between them. It is understood that the Indemnifying Person shall
not,
in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm
(in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of the Underwriters
shall be designated in writing by Lehman Brothers Inc. and any such separate
firm for the Company, the Operating Partnership, their directors, their officers
and such control persons of the Company and the Operating Partnership or
authorized representatives shall be designated in writing by the Company or
the
Operating Partnership. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. If it is
ultimately determined that an Indemnified Person was not entitled to
indemnification hereunder, such Indemnified Person shall be responsible for
repaying or reimbursing the Indemnifying Person for any amounts so paid or
incurred by such Indemnifying Person pursuant to this paragraph. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
(i) includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding and
(ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or behalf of an Indemnified Person. In no
event shall any Indemnified Person have any liability or responsibility in
respect of the settlement or compromise of, or consent to the entry of any
judgment with respect to any pending or threatened action or claim effected
without its prior written consent.
If
the
indemnification provided for in the first and second paragraphs of this
Section 7 is unavailable or insufficient to hold harmless an Indemnified
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (a) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Operating Partnership
on
the one hand and the Underwriters on the other hand from the offering of the
Securities or (b) if the allocation provided by clause (a) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (a) above but also the
relative fault of the Company and the Operating Partnership on the one hand
and
the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the
Company and the Operating Partnership on the one hand and the Underwriters
on
the other shall be deemed to be in the same respective proportions as the net
proceeds from the offering of such Securities (before deducting
expenses) received by the Company and the Operating Partnership and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company and the Operating Partnership on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Operating Partnership on the one hand or by
the
Underwriters on the other and the parties' relative intent, knowledge, access
to
information and opportunity to correct or prevent such statement or
omission.
The
Company, the Operating Partnership and the Underwriters agree that it would
not
be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as
one
entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The
20
amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall
be deemed to include, subject to the limitations set forth above, any legal
or
other expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required
to contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
to contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule I
hereto,
and not joint.
The
remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any Indemnified
Person at law or in equity.
The
indemnity and contribution agreements contained in this Section 7 and the
representations, warranties and covenants of the Company and the Operating
Partnership set forth in this Agreement shall remain operative and in full
force
and effect regardless of (a) any termination of this Agreement,
(b) any investigation made by or on behalf of any Underwriters or any
person controlling any Underwriters or by or on behalf of the Company, its
officers or directors or any other person controlling the Company or the
Operating Partnership and (c) acceptance of and payment for any of the
Securities.
8. The
several obligations of the Underwriters hereunder shall be subject to the
performance by the Company and the Operating Partnership of their respective
obligations hereunder and to satisfaction of each of the following
conditions:
(a) the
Registration Statement, including any Rule 462(b) Registration
Statement, shall have become effective under the Securities Act; the Statutory
Prospectus and each Issuer Free Writing Prospectus shall have been filed with
the Commission pursuant to Rule 424(b)
(in the case of such Issuer Free Writing Prospectus, to the extent required
under Rule 433 of the Securities Act) within the applicable time period
prescribed for such filing by such Rule; no stop order suspending the
effectiveness of the Registration Statement or the Statutory Prospectus shall
be
in effect, and no proceedings for such purpose shall have been commenced or
shall be pending before or threatened by the Commission to the knowledge, after
due inquiry, of the Company or the Operating Partnership; no stop order
suspending the effectiveness of the Registration Statement or the Statutory
Prospectus shall be in effect and no proceedings for such purpose shall have
been commenced or shall be pending before or threatened by the state securities
authority of any jurisdiction, to the knowledge of the Company or the Operating
Partnership; and all requests for additional information on the part of the
Commission shall have been complied with to your satisfaction;
(b) all
the
representations and warranties of the Company and the Operating Partnership
contained in this Agreement shall be true and correct on the Closing Date,
with
the same force and effect as if made on and as of the Closing Date, and each
of
the Company and the Operating Partnership shall have complied with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date;
(c) subsequent
to the execution and delivery of this Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have been
given of (i) any intended or potential downgrading or (ii) any review
or possible change that does not indicate an
21
improvement,
in the rating accorded any securities of or guaranteed by the Company or the
Operating Partnership by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(d) since
the
respective dates as of which information is given in the Registration Statement
and the Prospectus there shall not have been any material change in the capital
stock, partners' equity or long-term debt of the Company, the Operating
Partnership or any of the Subsidiaries on a consolidated basis, except as
described or contemplated in the Prospectus, or any material adverse change,
or
any development involving a prospective material adverse change, in or affecting
the general affairs, business, prospects, management, properties, financial
position, stockholders' equity, partners' equity or results of operations of
the
Company, the Operating Partnership and the Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which in the judgment of Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus; and other than as set
forth in the Prospectus, no proceedings shall be pending or, to the knowledge
of
the Company or the Operating Partnership, after due inquiry, threatened against
the Operating Partnership or the Company or any Property before or by any
federal, state or other commission, board or administrative agency, where an
unfavorable decision, ruling or finding could reasonably be expected to result
in a Material Adverse Effect;
(e) you
shall
have received on and as of the Closing Date a certificate signed by the Chief
Executive Officer of the Company and the Chief Financial Officer of the Company,
in their capacities as officers of the Company, on behalf of the Company for
itself and as general partner of the Operating Partnership, satisfactory to
you
to the effect set forth in subsections (a) through (d) of this
Section 8(e);
(f) you
shall
have received on the Closing Date, an opinion or opinions (satisfactory to
you
and counsel for the Underwriters), dated the Closing Date, of Cahill Gordon
& Reindel llp,
counsel
for the Company and the Operating Partnership, to the effect that:
(i) The
Company is duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule IV
hereto.
(ii) The
Operating Partnership and each of the Partnership Subsidiaries has been duly
formed and is validly existing as a limited partnership in good standing under
the laws of its state of organization. The Operating Partnership and each of
the
Partnership Subsidiaries has all requisite partnership power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged and proposes to engage, in each case, as
described in the Prospectus, and the Operating Partnership has the partnership
power to enter into and perform its obligations under this Agreement. The
Operating Partnership is duly qualified or registered as a foreign partnership
and is in good standing in each jurisdiction listed on Schedule IV
hereto.
(iii) To
the
knowledge of such counsel, other than shares reserved for issuance pursuant
to
the Company’s Shareholder Rights Plan, no shares of preferred stock of the
Company are reserved for any purpose. To the knowledge of such counsel, there
are no outstanding securities convertible into or exchangeable for any preferred
stock of the Company and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for Depositary Shares or
preferred stock of the
22
Company.
To the knowledge of such counsel, all of the outstanding partnership interests
of the Operating Partnership and each of the Partnership Subsidiaries have
been
duly authorized, validly issued and fully paid and, except for partnership
interests not owned by the Company, are owned directly or indirectly by the
Company or the Operating Partnership.
(iv) To
the
knowledge of such counsel, none of the Company, the Operating Partnership or
the
Subsidiaries is in violation of or default under its charter, bylaws,
certificate of limited partnership or partnership agreement, as the case may
be,
and none of such entities is in default in the performance or observance of
any
obligation, agreement, covenant or condition contained in any document (as
in
effect on the date of such opinion) listed as an exhibit to the
Registration Statement, the Company's and the Operating Partnership's Annual
Report on Form 10-K for the year ended December 31, 2004 or the
Company’s and the Operating Partnership’s Quarterly Report on Form 10-Q for
the quarter ended September 30, 2005, in each case as amended, if
applicable, to which such entity is a party or by which such entity may be
bound, or to which any of the property or assets of such entity may be subject
or by which they may be bound (it being understood that (i) such counsel
need express no opinion with respect to matters relating to any contract,
indenture, mortgage, loan agreement, note lease, joint venture or partnership
agreement or other instrument or agreement relating to the acquisition,
transfer, operation, maintenance, management or financing of any property or
assets of such entity or any other Property and (ii) such counsel may
assume compliance with the financial covenants contained in any such document),
except in each case for violations or defaults which in the aggregate are not
reasonably expected to have a Material Adverse Effect.
(v) This
Agreement was duly and validly authorized, executed and delivered by each of
the
Company and the Operating Partnership and the Deposit Agreement is duly and
validly authorized executed and delivered by the Company.
(vi) The
Registration Statement has been declared effective under the Securities Act,
the
Prospectus was filed with the Commission pursuant to Rule 424,
within the applicable time period prescribed by Rule 424,
and,
to the knowledge of such counsel, no stop order suspending the effectiveness
of
the Registration Statement or the Prospectus has been issued and no proceeding
for that purpose is pending or threatened by the Commission.
(vii) The
execution and delivery of this Agreement, the Series J Articles Supplementary
and the Deposit Agreement, the issuance and sale of the Depositary Shares,
the
performance by the Company and the Operating Partnership of their respective
obligations under the Depositary Shares, this Agreement and the Deposit
Agreement to the extent they are a party thereto, and the consummation of the
transactions herein and therein contemplated will not require, to such counsel’s
knowledge, any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except such
as may be required under the Securities Act and the state securities, Blue
Sky
or real estate syndication laws in connection with the purchase and distribution
of the Depositary Shares by the Underwriters) and did not and do not conflict
with or constitute a breach or violation of or default under: (1) any
document (as in effect as of the date of such opinion) listed as an exhibit
to the Registration Statement, each of the Company's and the Operating
Partnership’s Annual Report on Form 10-K for the year ended December 31,
2004 or
23
Quarterly
Report on Form 10-Q for the quarter ended September 30, 2005, in each case
as amended, if applicable, to which any such entity is a party or by which
it or
any of them or any of their respective properties or other assets may be bound
or subject and of which such counsel is aware (it being understood that
(i) such counsel need express no opinion with respect to matters relating
to any contract, indenture, mortgage, loan agreement, note lease, joint venture
or partnership agreement or other instrument or agreement relating to the
acquisition, transfer, operation, maintenance, management or financing of any
property or assets of such entity or any other Property and (ii) such
counsel may assume compliance with the financial covenants contained in any
such
document); (2) the certificate of limited partnership or partnership
agreement, as the case may be, of the Operating Partnership, Securities, L.P.
and the Financing Partnership or the articles of incorporation or bylaws, as
the
case may be, of the Company, FIFC or FISC; or (3) any applicable law, rule
or administrative regulation, except in each case for conflicts, breaches,
violations or defaults that in the aggregate are not reasonably expected to
have
a Material Adverse Effect.
(viii) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any court or governmental authority or agency or any other entity is required
in connection with the offering, issuance or sale of the Depositary Shares
hereunder, except such as may be required under the Securities Act, the bylaws,
corporate financing rules and the conflict of interest rules of the NASD, or
state securities, Blue Sky or real estate syndication laws, or such as have
been
received prior to the date of such opinion.
(ix) The
Registration Statement, at the time it became effective, and the Prospectus,
as
of the date of the Prospectus Supplement (in each case, other than the financial
statements, including the notes and schedules thereto, and other financial
and
statistical data that is found in or derived from the internal accounting
records of the Company and its Subsidiaries set forth in or incorporated by
reference therein or the information under the caption “Notice to Canadian
Residents” in the Prospectus Supplement, as to which no opinion need be
rendered), complied as to form in all material respects with the requirements
of
the Securities Act and the Exchange Act.
(x) Each
of
the Underwriters is receiving good, valid and marketable title to the Depositary
Shares, free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities if such Underwriter acquires such Depositary
Shares in good faith and without notice of any such security interests,
mortgages, pledges, liens, encumbrances, claims or equities.
(xi) The
information in the Prospectus Supplement under “Description of Series J
Preferred Shares and Depositary Shares” and "Certain U.S. Federal Income Tax
Considerations," and in the Prospectus under "Risk Factors," "Description of
Preferred Stock," “Description of Depositary Shares,” “Restrictions on Transfer
of Capital Stock” and "Certain U.S. Federal Income Tax Considerations" (as
modified by the information in the Prospectus Supplement), to the extent that
it
constitutes statements of law, descriptions of statutes, rules or regulations,
or summaries of documents or legal conclusions, has been reviewed by us and
is
correct in all material respects and presents fairly the information required
to
be disclosed therein.
(xii) To
such
counsel's knowledge, there is no document or contract of a character required
to
be described or referred to in the Registration Statement and the
24
Prospectus
by the Securities Act other than those described or referred to therein, and
the
descriptions thereof or references thereto are accurate in all material
respects; and to such counsel’s knowledge, there is no document or contract of a
character required to be filed as an exhibit to the Registration Statement
which
is not filed as required.
(xiii) The
partnership agreement of each of the Operating Partnership, Securities, L.P.
and
the Financing Partnership has been duly authorized, validly executed and
delivered by each of the Company and the Partnership Subsidiaries, to the extent
they are parties thereto, and is valid, legally binding and enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xiv) The
Company and the Operating Partnership satisfied all conditions and requirements
for filing the Registration Statement on Form S-3 under the Securities
Act.
(xv) None
of
the Company or the Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(xvi) Commencing
with the Company's taxable year ended December 31, 1994, the Company has been
organized and operated in conformity with the requirements for qualification
and
taxation as a REIT under the Code, and the Company's current and proposed method
of operation (as represented by the Company to us in a written
certificate) will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
In
addition, Cahill Gordon & Reindel llp
shall
state, in a separate letter, that they have participated in conferences with
officers and other representatives of the Company and the Operating Partnership,
representatives of the independent registered public accounting firm for the
Company and representatives of the Underwriters at which the contents of the
Registration Statement, the Applicable Time Information and the Prospectus
and
related matters were discussed. On the basis thereof, (relying to the extent
such counsel deems appropriate upon the opinions of officers and other
representatives of the Company as to the materiality to the Company of the
matters discussed) but without independent verification by such counsel of,
and without passing upon or assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Applicable Time Information or the Prospectus or any amendments
or supplements thereto, no facts have come to the attention of such counsel
that
lead them to believe that (i) the Registration Statement, including the
documents incorporated therein by reference, at the time the Registration
Statement became effective, contained any untrue statement of a material fact
or
omitted to state any material fact required to be stated therein or necessary
in
order to make the statements therein not misleading, (ii) the Prospectus,
as of its date or as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (iii) the
Applicable
Time Information,
as of
the Applicable Time, contained any untrue statement of a material fact or
omitted to state material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it
being
understood that such counsel need express no comment with respect to the
financial statements, including the notes and schedules thereto, or any other
financial or statistical data that is found in or derived from the internal
accounting records of the Company or the Operating Partnership, in each case
as
set forth in or incorporated by reference into the
25
Registration
Statement, the Prospectus, the Applicable Time Information or the information
under the caption “Notice to Canadian Residents”).
In
giving
its opinion, such counsel may rely (i) as to all matters of fact, upon
representations, statements or certificates of public officials and statements
of officers, directors, partners, employees and representatives of and
accountants for each of the Company and its Subsidiaries, (ii) as to
matters of Maryland law, on the opinion of McGuireWoods LLP, Baltimore,
Maryland, (iii) as to matters of Illinois law, on the opinion of Barack
Ferrazzano Kirschbaum Perlman & Nagelberg LLP, Chicago, Illinois, and
(iv) as to the good standing and qualification of the Company and the
Operating Partnership to do business in any state or jurisdiction, upon
certificates of appropriate government officials and letters from Corporation
Service Company, copies of which have been furnished to you.
(g) You
shall
have received on the Closing Date, an opinion (satisfactory to you and counsel
for the Underwriters), dated as of the Closing Date, of McGuireWoods LLP,
special Maryland counsel for the Company, to the effect that:
(i) Each
of
the Company and the Corporate Subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation.
(ii) Each
of
the Company and the Corporate Subsidiaries has corporate power and authority
to
own, lease and operate its properties and other assets and to conduct the
business in which it is engaged or proposes to engage, in each case, as
described in the Prospectus, and the Company has the corporate power and
authority to enter into and perform its obligations under this Agreement and
the
Deposit Agreement.
(iii) The
Company's authorized capitalization consists of 10,000,000 shares of preferred
stock, par value $.01 per share, 100,000,000 shares of common stock, par value
$.01 per share and 65,000,000 shares of excess stock, par value $.01 per share.
All of the issued and outstanding shares of capital stock of the Company have
been duly authorized and are validly issued, fully paid and non-assessable.
All
the issued and outstanding shares of capital stock of the Corporate Subsidiaries
have been duly authorized and are validly issued, fully paid and non-assessable
and are owned by the Company.
(iv) Each
of
the Securities has been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and the Deposit Agreement, when validly
issued and delivered pursuant to this Agreement against payment of the Purchase
Price, will be duly authorized, validly issued, fully paid and non-assessable.
To the extent Maryland law provides the basis for determination, each of the
Underwriters is receiving good, valid and marketable title to the Securities,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities if the Underwriters acquire such Securities
in
good faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities. The terms of the Securities
conform in all material respects to all statements and descriptions related
thereto contained in the Registration Statement, the Series J Articles
Supplementary and the Prospectus. The form of depositary receipts used to
evidence the Securities are in due and proper form and comply in all material
respects with all applicable legal requirements. The issuance of the Securities
is not subject to any preemptive or other similar rights arising under Maryland
General Corporation Law, the Company's charter or by-laws, as amended to date,
or any agreement of which such counsel is aware.
26
(v) Each
of
this Agreement, the Series J Articles Supplementary and the Deposit Agreement
was duly and validly authorized by the Company, on behalf of itself and the
Operating Partnership.
(vi) The
execution and delivery of this Agreement, the Series J Articles Supplementary
and the Deposit Agreement, the performance of the obligations and the
consummation of the transaction set forth herein and therein by the Company
will
not require, to the knowledge of such counsel, any consent, approval,
authorization or other order of any Maryland court, regulatory body,
administrative agency or other governmental body (except as such may be required
under the Securities Act or other securities or blue sky or real estate
syndication laws) and did not and do not conflict with or constitute a
breach or violation of or default under: (A) the charter or by-laws, as the
case may be, of the Company; and (B) any applicable Maryland law, rule or
administrative regulation or any order or administrative or court decree of
which such counsel is aware, except in the case of clause (B) above for
conflicts, breaches, violations or defaults that in the aggregate would not
have
a Material Adverse Effect.
(vii) To
the
knowledge of such counsel, no Material authorization, approval, consent or
order
of any Maryland court, governmental authority, agency or other entity is
required in connection with the offering, issuance or sale of the Securities
hereunder, except such as may be required under Maryland securities, blue sky
or
real estate syndication laws.
(viii) The
information in the Prospectus under "Certain
Provisions of Maryland Law and First Industrial Realty Trust, Inc.'s Articles
of
Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock",
and
"Description of Preferred Stock" and in Part II of the Registration Statement
under Item 15, to the extent that it constitutes statements of law, descriptions
of statutes, rules or regulations, summaries of documents or legal conclusions,
has been reviewed by such counsel and, as to Maryland law, is correct in all
material respects and presents fairly the information required to be disclosed
therein.
(ix) The
Company and each of the Corporate Subsidiaries was authorized to enter into
the
partnership agreement of each Partnership Subsidiary for which the Company,
the
Operating Partnership or such Corporate Subsidiary, as the case may be, is
the
general partner.
(h) You
shall
have received on the Closing Date, an opinion (satisfactory to you and counsel
for the Underwriters), dated as of the Closing Date, of Barack Ferrazzano
Kirschbaum Perlman & Nagelberg LLP, special Illinois counsel for the
Company, to the effect that:
(i) To
the
knowledge of such counsel, none of the Company or the Operating Partnership,
FIMC, the Mortgage Partnership, FIPC or FIP is in violation of, or default
in
connection with the performance or observance of any obligation, agreement,
covenant or condition contained in any or all of that certain Fourth
Amended Restated Unsecured Revolving Credit Facility, dated as of August 23,
2005, among the Operating Partnership, as Borrower, the Company, as Guarantor
and General Partner, JPMorgan Chase Bank, N.A., and certain other banks as
lenders, J.P. Morgan Securities Inc., as Lead Arranger and Sole Book Runner,
Wachovia Bank, National Association, as Syndication Agent, Commerzbank AG,
PNC
Bank, National Association and Wells Fargo Bank, N.A., as Documentation Agents,
and AmSouth Bank, The Bank of New
27
York,
The
Bank of Nova Scotia, Bank of Montreal and SunTrust Bank as Co-Agents (all such
indebtedness collectively, the "Credit
Documents"),
except in each case for defaults that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
(ii) The
execution and delivery of this Agreement, the performance of the obligations
and
consummation of transactions set forth herein and therein by the Company and
the
Operating Partnership did not and do not conflict with, or constitute a breach
or violation of, or default under: (A) any or all of the Credit Documents;
(B) any applicable law, rule or administrative regulation of the federal
government (or agency thereof) of the United States; or (C) any order
or administrative or court decree issued to or against, or concerning any or
all
of the Company, the Operating Partnership, the Partnership Subsidiaries and
the
Corporate Subsidiaries, of which, in the cases of clauses (B) and
(C) above, such counsel is aware, except in each case for conflicts,
breaches, violations or defaults that, in the aggregate, would not have a
Material Adverse Effect.
(iii) To
the
knowledge of such counsel, there are no legal or governmental proceedings
pending or threatened against the Company, the Operating Partnership, the
Partnership Subsidiaries, the Corporate Subsidiaries or the Additional
Subsidiaries that do, or are likely to, have a Material Adverse
Effect.
(iv) The
information in the Company’s Annual Report on Form 10-K for the year ending
December 31, 2004 filed with the Commission under Item 7 "Management's
Discussion and Analysis of Financial Condition and Results of
Operations—Mortgage Loans Payable" (other than information relating to a certain
mortgage loan made available to First Industrial Financing Partnership, L.P.
by
Nomura Asset Capital Corporation) to the extent that it constitutes
statements of law, descriptions of statutes, summaries of principal financing
terms of Credit Documents or legal conclusions, has been reviewed by such
counsel and is correct in all material respects and presents fairly the
information disclosed therein.
(i) On
the
date hereof, the Accountants shall have furnished to the Underwriters a letter,
dated the date of its delivery, addressed to the Underwriters and in form and
substance satisfactory to the Underwriters (and to its counsel), confirming
that
they are independent registered public accountants with respect to the Company,
the Operating Partnership and the Subsidiaries as required by the Securities
Act
and with respect to the financial and other statistical and numerical
information contained in the Registration Statement and the Prospectus and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" as set forth in the AICPA's Statement on Auditing
Standards 72. At the Closing Date, the Accountants shall have furnished to
the
Underwriters a letter, dated the date of its delivery, which shall confirm,
on
the basis of a review in accordance with the procedures set forth in the letter
from it, that nothing has come to its attention during the period from the
date
of the letter referred to in the prior sentence to a date (specified in the
letter) not more than five days prior to the Closing Date, which would
require any change in its letter dated the date hereof if it were required
to be
dated and delivered at the Closing Date.
(j) You
shall
have received on the Closing Date an opinion, dated as of the Closing Date,
of
Clifford Chance US LLP ("CC"),
counsel for the Underwriters, as to the matters referred to in clauses
(ii) (with respect to the Operating Partnership and the first sentence
only), (v), (vi), (ix) and (x) of Section 8(f), and to clause
(i) (with respect to the Company only) of Section 8(g) and,
in addition, CC shall make statements similar to those contained in the second
paragraph following
28
Section 8(f)(xvi) hereto
and shall be entitled to rely on those persons described in the third paragraph
following Section 8(f)(xvi) hereto with respect to the matters
described therein.
In
giving
its opinion, such counsel may rely (A) as to matters of Maryland law, on
the opinion of McGuireWoods LLP, Baltimore Maryland, which opinion shall be
in
form and substance reasonably satisfactory to counsel for the Underwriters
and
(B) as to the good standing and qualification of the Company, the Corporate
Subsidiaries and the Partnership Subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate governmental officials or
opinions of counsel in such jurisdictions.
(k) At
the
Closing Date, the Securities shall have the ratings accorded by any “nationally
recognized statistical organization,” as defined by the Commission for purposes
of Rule 436(g)(2) under the Securities Act if and as specified in
Schedule III
hereto,
and the Company shall have delivered to the Underwriters a letter, dated as
of
such date, from each such rating organization, or other evidence satisfactory
to
the Underwriters, confirming that the Securities have such ratings. Since the
date hereof, there shall not have occurred a downgrading in the rating assigned
to the Securities or any of the Company's securities or the Operating
Partnership's other securities by any such rating organization, and no such
rating organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Securities
or
any of the Company's other securities or the Operating Partnership's
securities.
(l) If
the
Registration Statement or an offering of Securities has been filed with the
NASD
for review, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(m) The
Company and its Subsidiaries shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements pursuant to Section 4
herein contained or required to be performed or complied with by the Company
at
or prior to the Closing Date.
(n) At
the
Closing Date, the Deposit Agreement shall have been duly and validly authorized,
executed and delivered by each of the Company and the Operating Partnership,
to
the extent they are a party thereto.
(o) The
Depositary Shares shall be approved for listing on the New York Stock Exchange,
Inc.
(p) At
the
Closing Date, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities, as herein
contemplated and related proceedings, or in order to evidence the accuracy
of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Operating
Partnership and the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form
and
substance to the Underwriters and counsel for the Underwriters.
Except
to
the extent the text of such is as set forth herein, the opinions and
certificates mentioned in this Agreement shall be deemed to be in compliance
with the provisions hereof only if they are in all material respects
satisfactory to you and to CC, counsel for the Underwriters.
9. Notwithstanding
anything herein contained, this Agreement may be terminated in your absolute
discretion by notice given to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (a) the Company and the
Operating Partnership shall have failed, refused or
29
been
unable, at or prior to the Closing Date, to perform any agreements on its part
to be performed hereunder, (b) any other conditions to the Underwriters'
obligations hereunder are not fulfilled, (c) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASD, the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of
Trade, (d) trading of any securities of or guaranteed by the Company and
the Operating Partnership shall have been suspended on any exchange or in any
over-the-counter market, (e) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities; (f) there shall have occurred any major disruption of
settlements of securities or clearance services in the United States; or
(g) there shall have occurred any outbreak or escalation of hostilities or
act of terrorism involving the United States or any change in financial markets
or any calamity or crisis that, in the judgment of the Representatives is
material and adverse and which, in the judgment of the Representatives makes
it
impracticable or inadvisable to proceed with the offer, sale or delivery of
the
Securities on the terms and in the manner contemplated, by this Agreement,
the
Applicable Time Information, and the Prospectus.
10. If,
on
the Closing Date, any one or more of the Underwriters shall fail or refuse
to
purchase Securities which it or they have agreed to purchase under this
Agreement, and the number of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the number of the Securities to be sold on the Closing Date, the other
Underwriters shall be obligated severally in the proportions that the amount
of
Securities set forth opposite their respective names in Schedule
I
hereto
bears to the number of Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the non-defaulting
Underwriters may specify, provided that,
such
Securities of the defaulting Underwriters are purchased, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 10 be increased pursuant to this Section 10 by an amount
in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities, and the number of
Securities with respect to which such default occurs is more than one-tenth
of
the number of Securities to be purchased, and arrangements satisfactory to
the
Underwriters and the Company for the purchase of such Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriters or the Company. In
any
such case either you or the Company and the Operating Partnership shall have
the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriters
from liability in respect of any default of such Underwriters under this
Agreement.
11. If
this
Agreement shall be terminated by the Underwriters, or any of them, because
of
any failure or refusal on the part of the Company and the Operating Partnership
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company and the Operating Partnership shall be unable
to perform their obligations under this Agreement or any condition of the
Underwriters' obligations cannot be fulfilled, the Company and the Operating
Partnership agree to reimburse the Underwriters or such Underwriters as have
so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering of Securities contemplated hereunder, and the Company
and the Operating Partnership shall then be under no further liability to any
Underwriters pursuant to this Agreement except as provided in Sections
4(i) and 7 of this Agreement.
30
12. In
the
event of termination of this Agreement, the provisions of
Sections 4(i) and 7 remain operative and in full force and
effect.
13. This
Agreement shall inure to the benefit of and be legally binding upon the Company,
the Operating Partnership, the Underwriters, any controlling persons referred
to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of Securities from any Underwriters shall be deemed to be a successor by reason
merely of such purchase.
14. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form
of
telecommunication. Notices to the Underwriters shall be given to the
Underwriters, c/o Wachovia Capital Markets LLC at One Wachovia Center, 301
South
College Street, Charlotte, North Carolina 28288 hereto, with a copy to Clifford
Chance US LLP, 31 West 52nd
Street,
New York, New York 10019, Attention: Larry P. Medvinsky, Esq. Notices to the
Company shall be given to it at First Industrial Realty Trust, Inc., 311 South
Wacker Drive, Suite 4000, Chicago, Illinois, 60606, Attention: John H. Clayton,
Esq., with a copy to Cahill Gordon & Reindel llp,
80 Pine
Street, New York, New York, 10005, Attention: Gerald S. Tanenbaum,
Esq.
15. Absence
of Fiduciary Relationship.
The
Company acknowledges and agrees that:
(a) The
Underwriters have been retained solely to act as underwriters in connection
with
the sale of the Company's securities and that no fiduciary, advisory or agency
relationship between the Company and the Underwriters has been created in
respect of any of the transactions contemplated by this Agreement, irrespective
of whether the Underwriters have advised or is advising the Company on other
matters;
(b) the
price
of the securities set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Underwriters, and
the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by
this
Agreement;
(c) it
has
been advised that the Underwriters and its affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of
Company and that the Underwriters have no obligation to disclose such interests
and transactions to Company by virtue of any fiduciary, advisory or agency
relationship; and
(d) it
waives, to the fullest extent permitted by law, any claims it may have against
the Underwriters for breach of fiduciary duty or alleged breach of fiduciary
duty in respect of the transactions contemplated by this Agreement and agrees
that the Underwriters shall have no liability (whether direct or
indirect) to Company in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the Company.
16. This
Agreement may be signed in counterparts, each of which shall be an original
and
all of which together shall constitute one and the same instrument.
17. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to the conflicts of laws provisions
thereof.
[Signatures
begin on following page.]
31
Very
truly yours,
FIRST
INDUSTRIAL REALTY TRUST, INC.
By: _/s/
John H. Clayton_____
Name: John
H.
Clayton
Title: Vice
President - Corporate Legal & Secretary
FIRST
INDUSTRIAL, L.P.
|
By:
|
First
Industrial Realty Trust, Inc., as its sole general
partner
|
By: _/s/
John H. Clayton_____
Name: John
H.
Clayton
Title: Vice
President - Corporate Legal & Secretary
Accepted:
January 10, 2006
WACHOVIA
CAPITAL MARKETS, LLC
MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED
CREDIT
SUISSE FIRST BOSTON LLC
As
representatives of the several Underwriters
By:
WACHOVIA CAPITAL MARKETS, LLC
By: __/s/
Teresa Hee___________
Name: __Teresa
Hee______________
Title: __Director________________
SCHEDULE
I
|
Underwriters
|
Number
of Depositary Shares to be Purchased
|
|
Wachovia
Capital Markets, LLC
|
1,500,000
|
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
1,500,000
|
|
Credit
Suisse First Boston LLC
|
1,500,000
|
|
J.P.
Morgan Securities Inc.
|
900,000
|
|
BB&T
Capital Markets, a Division of Scott & Stringfellow, Inc.
|
300,000
|
|
Raymond
James & Associates, Inc.
|
300,000
|
SI-1
SCHEDULE
II
Term
Sheet dated January 10, 2006
SII-1
SCHEDULE
III
|
Underwriters:
|
Wachovia
Capital Markets, LLC
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
Credit
Suisse First Boston LLC
J.P.
Morgan Securities Inc.
BB&T
Capital Markets,
a
Division of Scott & Stringfellow, Inc.
Raymond
James & Associates Inc.
|
|
Underwriting
Agreement dated:
|
January
10, 2006
|
|
Registration
Statement No.:
|
333
- 117842
|
|
Title
of Securities
|
Depositary
Shares Each Representing 1/10,000 of a Share of 7.25% Series J Cumulative
Redeemable Preferred Stock
|
|
Aggregate
Number of Shares:
|
6,000,000
shares
|
|
Price
to Public:
|
$25.0000
|
|
Purchase
Price:
|
$24.2125
|
|
Significant
Provisions
|
As
set forth in the Prospectus
|
|
Ratings:
|
Standard
& Poor’s “BBB-”
Moody’s
Investors Service : “Baa3”
|
|
Closing
Date and Time of
Delivery:
|
The
Closing will be held at [9:00 a.m.]
(New York City time) on January 13, 2006, with the Securities being
delivered through the book-entry facilities of The Depository Trust
Company and made available for review by DTC at least 24 hours prior
to
the First Closing Date
|
|
Closing
Location:
|
Clifford
Chance US LLP
31
West 52nd
Street
New
York, NY 10019
|
SIII-1
SCHEDULE
IV
JURISDICTIONS
OF FOREIGN QUALIFICATION OF THE COMPANY
AND
THE
OPERATING PARTNERSHIP
|
ENTITY:
|
JURISDICTION
|
|
First
Industrial Realty Trust, Inc.
|
California
Florida
Georgia
Illinois
Indiana
Michigan
Minnesota
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Utah
|
|
First
Industrial, L.P.
|
Arizona
California
Colorado
Connecticut
Florida
Georgia
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maryland
Michigan
Minnesota
Missouri
New
Jersey
New
York
North
Carolina
Ohio
Oregon
Pennsylvania
Tennessee
Texas
Utah
Virginia
Wisconsin
|
SIV-1
7.25%
Series J Cumulative Redeemable Preferred Stock
(Liquidation
Preference $250,000.00 Per Share)
ARTICLES
SUPPLEMENTARY
FIRST
INDUSTRIAL REALTY TRUST, INC.
____________________________
Articles
Supplementary of Board of Directors Classifying
and
Designating a Series of Preferred Stock as
7.25%
Series J Cumulative Redeemable Preferred Stock
and
Fixing Distribution and
Other
Preferences and Rights of Such Series
____________________________
Dated
as
of January 12, 2006
FIRST
INDUSTRIAL REALTY TRUST, INC.
__________
Articles
Supplementary of Board of Directors Classifying
and
Designating a Series of Preferred Stock as
7.25%
Series J Cumulative Redeemable Preferred Stock
and
Fixing Distribution and
Other
Preferences and Rights of Such Series
__________
First
Industrial Realty Trust, Inc., a Maryland corporation, having its principal
office in the State of Maryland in the City of Baltimore (the “Company”),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
Pursuant
to authority conferred upon the Board of Directors by the Charter and Bylaws
of
the Company, the Board of Directors on December 3, 1996, December 4, 1997,
December 3, 1998, May 12, 2004 and July 28, 2004 adopted resolutions appointing
certain members of the Board of Directors to a committee (the “Special
Committee”)
with
power to cause the Company to issue, among other things, certain series of
Preferred Stock and to determine the number of shares which shall constitute
such series and the Dividend Rate (as defined herein) and other terms of such
series. As used herein, the term “Board
of Directors”
shall
mean the board of directors of the Company and any committee duly and validly
authorized by such board of directors to perform any of its responsibilities
with respect to the matters addressed herein. The Special Committee pursuant
to
a resolution dated December 1, 2005 (i) authorized the creation and issuance
of
up to 1,000 shares of Series J Cumulative Redeemable Preferred Stock which
stock
was previously authorized but not issued and (ii) determined the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemption of the shares
of such series and authorized the Dividend Rate (which rate shall be 7.25%
as
adjusted as provided herein) payable on such series. Such preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of redemption and number
of
shares, as determined by such duly authorized committee, as applicable, are
as
follows:
Section
1. Number
of Shares and Designation.
This
class of Preferred Stock shall be designated 7.25% Series J Cumulative
Redeemable Preferred Stock (the “Series
J Preferred Shares”)
and
the number of shares which shall constitute such series shall be 1,000 shares,
par value $.01 per share, which number may be decreased (but not below the
number thereof then outstanding) from time to time by the Board of
Directors.
-2-
Section
2. Dividend
Rights.
(1)
Dividends shall be payable in cash on the Series J Preferred Shares when, as
and
if declared by the Board of Directors, out of assets legally available therefor:
(i) for the period (the “Initial
Dividend Period”)
from
the Deemed Original Issue Date (as defined below) to but excluding April 1,
2006, and (ii) for each quarterly dividend period thereafter (the Initial
Dividend Period and each quarterly dividend period being hereinafter
individually referred to as a “Dividend
Period”
and
collectively referred to as “Dividend
Periods”),
which
quarterly Dividend Periods shall commence on January 1, April 1,
July 1, and October 1 in each year (each, a “Dividend
Period Commencement Date”),
commencing on April 1, 2006, and shall end on and include the day next preceding
the next Dividend Period Commencement Date, at a rate per annum equal to 7.25%
of the liquidation preference thereof (the “Dividend
Rate”);
provided, however, that during any period of time (each a “Special
Dividend Rate Period”)
that
any Series J Preferred Shares remain outstanding and both (i) the Series J
Preferred Shares (or any depositary shares evidencing a fractional interest
therein) are not listed on the New York Stock Exchange or the American Stock
Exchange, or quoted on the NASDAQ/National Association of Securities Dealers
Automated Quotation System, and (ii) the Company is not subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”),
the
Dividend Rate shall be a rate per annum equal to 8.25% of the liquidation
preference thereof. Dividends on each Series J Preferred Share shall be
cumulative from the Deemed Original Issue Date of such share and shall be
payable, without interest thereon, when, as and if declared by the Board of
Directors, on March 31, June 30, September 30 and December 31 of each year,
commencing on March 31, 2006 or, in the case of Series J Preferred Shares with
a
Deemed Original Issue Date after March 31, 2006, the first such dividend payment
date following such Deemed Original Issue Date; provided,
that if
any such day shall be a Saturday, Sunday, or a day on which banking institutions
in the State of New York are authorized or obligated by law to close, or a
day
which is or is declared a national or a New York state holiday (any of the
foregoing a “Non-Business
Day”),
then
the payment date shall be the next succeeding day which is not a Non-Business
Day. Each such dividend shall be paid to the holders of record of Series J
Preferred Shares as they appear on the stock register of the Company on such
record date, not more than 45 days nor less than 15 days preceding the payment
date thereof, as shall be fixed by the Board of Directors. Dividends on account
of arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any regular dividend payment date, to holders of record
on
such date, not more than 45 days nor less than 15 days preceding the payment
date thereof, as may be fixed by the Board of Directors. After an amount equal
to full cumulative dividends on this series, including for all past dividend
periods, if any, and the then current Dividend Period, has been paid to holders
of record of Series J Preferred Shares entitled to receive dividends as set
forth above by the Company, or such dividends have been declared and funds
therefor set aside for payment, the holders of Series J Preferred Shares will
not be entitled to any further dividends with respect to that Dividend
Period.
“Deemed
Original Issue Date”
means
(a) in the case of any share which is part of the first issuance of Series
J Preferred Shares or part of a subsequent issuance of Series J Preferred Shares
prior to April 1, 2006, the date of such first issuance and (b) in the case
of any share which is part of a subsequent issuance of Series J Preferred Shares
on or after April 1, 2006, the later of (x) April 1, 2006 and (y) the
latest Dividend Period
-3-
Commencement
Date which precedes the date of issuance of such share and which succeeds the
last Dividend Period for which full cumulative dividends have been paid;
provided
that, in
the case of any share which is part of a subsequent issuance on or after April
1, 2006, the date of issuance of which falls between (i) the record date
for dividends payable on the first succeeding dividend payment date and
(ii) such dividend payment date, the “Deemed
Original Issue Date”
means
the date of the Dividend Period Commencement Date that immediately follows
the
date of issuance.
(2)
Dividends
payable on Series J Preferred Shares for any period greater or less than a
full
Dividend Period, including the Initial Dividend Period, shall be computed on
the
basis of a 360-day year consisting of twelve 30-day months. Dividends payable
on
Series J Preferred Shares for each full Dividend Period shall be computed by
dividing the Dividend Rate by four.
(3)
When
dividends are not paid in full upon the Series J Preferred Shares and any other
series of capital stock of the Company ranking on a parity therewith as to
dividends, all dividends declared upon the Series J Preferred Shares and any
other series of capital stock of the Company ranking on a parity therewith
as to
dividends shall be declared pro rata so that the amount of dividends declared
per share on the Series J Preferred Shares and such other series of capital
stock shall in all cases bear to each other that same ratio that the accumulated
dividends per share on the Series J Preferred Shares and such other series
of
capital stock bear to each other. Except as provided in the preceding sentence,
unless an amount equal to full cumulative dividends on the Series J Preferred
Shares has been paid to holders of record of Series J Preferred Shares entitled
to receive dividends as set forth above by the Company for all past Dividend
Periods, no dividends (other than in shares of the Company’s common stock, par
value $.01 per share (together with any other shares of capital stock of the
Company into which such shares shall be reclassified or changed “Common
Stock”),
or
other shares of capital stock of the Company ranking junior to the Series J
Preferred Shares as to dividends and upon liquidation) shall be declared or
paid
or set aside for payment nor shall any other distribution be made upon the
Common Stock or any other Shares of capital stock of the Company ranking junior
to or on a parity with the Series J Preferred Shares as to dividends or upon
liquidation. Except as provided in clause (9) of Section 4 below, unless an
amount equal to full cumulative dividends on the Series J Preferred Shares
has
been paid to holders of record of Series J Preferred Shares entitled to receive
dividends as set forth above by the Company for all past Dividend Periods,
no
Common Stock or any other Shares of capital stock of the Company ranking junior
to or on a parity with the Series J Preferred Shares as to dividends or upon
liquidation shall be redeemed, purchased, or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for
the redemption of any shares of any such stock) by the Company or any subsidiary
of the Company, except by conversion into or exchange for shares of capital
stock of the Company ranking junior to the Series J Preferred Shares as to
dividends and upon liquidation.
Section
3. Liquidation.
(1) In
the event of any voluntary or involuntary liquidation, dissolution, or winding
up of the Company, the holders of Series J Preferred Shares are entitled to
receive out of the assets of the Company available for distribution
to
-4-
stockholders,
before any distribution of assets is made to holders of Common Stock or any
other shares of capital stock of the Company ranking junior to the Series J
Preferred Shares upon liquidation, liquidating distributions in the amount
of
the stated value of $250,000 per share, plus all accumulated and unpaid
dividends (whether or not earned or declared) for the then current and all
past
Dividend Periods. If, upon any voluntary or involuntary liquidation,
dissolution, or winding up of the Company, the amounts payable with respect
to
the Series J Preferred Shares and any other shares of the Company ranking as
to
any such distribution on a parity with the Series J Preferred Shares are not
paid in full, the holders of Series J Preferred Shares and of such other shares
will share ratably in any such distribution of assets of the Company in
proportion to the full respective preferential amounts to which they are
entitled. After payment of the full amount of the liquidating distribution
to
which they are entitled, the holders of Series J Preferred Shares will not
be
entitled to any further participation in any distribution of assets by the
Company.
(2)
Written
notice of any such liquidation, dissolution or winding up of the Company,
stating the payment date or dates when, and the place or places where, the
amounts distributable in such circumstances shall be payable, shall be given
by
first class mail, postage prepaid, not less than 30 nor more than 60 days prior
to the payment date stated therein, to each record holder of the Series J
Preferred Shares at the respective addresses of such holders as the same shall
appear on the stock transfer records of the Company.
(3)
For
purposes of liquidation rights, a consolidation or merger of the Company with
or
into any other corporation or corporations or a sale of all or substantially
all
of the assets of the Company shall be deemed not to be a liquidation,
dissolution or winding up of the Company.
Section
4. Redemption.
(1)
Except as provided in clause (2) or (9) below, the Series J Preferred Shares
are
not redeemable prior to January 15, 2011. On and after such date, the Series
J
Preferred Shares are redeemable at the option of the Company, by resolution
of
the Board of Directors, in whole or in part, from time to time upon not less
than 30 nor more than 60 days’ notice, at a cash redemption price of the stated
value of $250,000 per share, plus all accrued and unpaid dividends (whether
or
not earned or declared) to the date of redemption (the “Redemption
Price”).
(2)
At
any
time within the first 90 days of any Special Dividend Rate Period, the Series
J
Preferred Shares are redeemable at the option of the Company, by resolution
of
the Board of Directors, in whole but not in part, from time to time upon not
less than 30 nor more than 60 days’ notice, at a cash redemption price equal to
the Redemption Price (each, a “Special
Redemption”).
Except as otherwise provided in Section 4 hereof, any Special Redemption shall
be subject to the provisions of Section 4 hereof.
(3)
If
fewer
than all of the outstanding Series J Preferred Shares are to be redeemed, the
number of shares to be redeemed will be determined by the Board of Directors
and
such shares shall be redeemed pro rata from the holders of record of such shares
in proportion to the number of such shares held by such holders (with
adjustments to
-5-
avoid
redemption of fractional shares) or by lot in a manner determined by the Board
of Directors.
(4)
Notwithstanding
the foregoing, if an amount equal to full dividends for any Dividend Period
on
the Series J Preferred Shares has not been paid to holders of record of Series
J
Preferred Shares entitled to receive dividends as set forth above by the
Company, no Series J Preferred Shares or any other series of capital stock
issued by the Company ranking on a parity with, or junior to, the Series J
Preferred Shares as to the payment of dividends or as to distribution of assets
upon liquidation, dissolution or winding up of the Company, as applicable
(whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof are different from those of the
Series J Preferred Shares) shall be redeemed, except as provided in clause
(9) below, unless all outstanding Series J Preferred Shares are simultaneously
redeemed, and the Company shall not otherwise purchase or acquire, directly
or
indirectly, any Series J Preferred Shares or shares of any series of capital
stock issued by the Company ranking on a parity with, or junior to, the
Series J Preferred Shares as to the payment of dividends or as to
distribution of assets upon liquidation, dissolution or winding up of the
Company, as applicable (whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof are different from
those of the Series J Preferred Shares); provided,
however,
that
the foregoing shall not prevent the purchase or acquisition of Series J
Preferred Shares pursuant to a purchase or exchange offer if such offer is
made
on the same terms to all holders of Series J Preferred Shares.
(5)
Notice
of
redemption hereunder shall be given by publication in a newspaper of general
circulation in The City of New York, such publication to be made once a week
for
two successive weeks, commencing not less than 30 nor more than 60 days prior
to
the date fixed for redemption thereof. A similar notice will be mailed by the
Company by first class mail, postage prepaid, to each record holder of the
Series J Preferred Shares to be redeemed, not less than 30 nor more than 60
days
prior to such redemption date, to the respective addresses of such holders
as
the same shall appear on the stock transfer records of the Company. Each notice
shall state: (i) the redemption date; (ii) the number of Series J
Preferred Shares to be redeemed; (iii) the Redemption Price; (iv) the
place or places where certificates for such shares are to be surrendered for
payment of the Redemption Price; and (v) that dividends on the shares to be
redeemed will cease to accrue on such redemption date. If fewer than all the
Series J Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Series J Preferred Shares
to be redeemed from such holder.
(6)
In
order
to facilitate the redemption of Series J Preferred Shares, the Board of
Directors may fix a record date for the determination of the shares to be
redeemed, such record date to be not less than 30 nor more than 60 days prior
to
the date fixed for such redemption.
(7)
Notice
having been given as provided above, from and after the date fixed for the
redemption of Series J Preferred Shares by the Company (unless the Company
shall
fail to make available the money necessary to effect such redemption), the
holders of shares selected for redemption shall cease to be stockholders with
respect to such shares
-6-
and
shall
have no interest in or claim against the Company by virtue thereof and shall
have no voting or other rights with respect to such shares, except the right
to
receive the moneys payable upon such redemption from the Company, less any
required tax withholding amount, without interest thereon, upon surrender (and
endorsement or assignment of transfer, if required by the Company and so stated
in the notice) of their certificates, and the shares represented thereby shall
no longer be deemed to be outstanding. If fewer than all the shares represented
by a certificate are redeemed, a new certificate shall be issued, without cost
to the holder thereof, representing the unredeemed shares. The Company may,
at
its option, at any time after a notice of redemption has been given, deposit
the
redemption price for the Series J Preferred Shares designated for redemption
and
not yet redeemed, plus any accumulated and unpaid dividends thereon to the
date
fixed for redemption, with the transfer agent or agents for the Series J
Preferred Shares, as a trust fund for the benefit of the holders of the Series
J
Preferred Shares designated for redemption, together with irrevocable
instructions and authority to such transfer agent or agents that such funds
be
delivered upon redemption of such shares and to pay, on and after the date
fixed
for redemption or prior thereto, the redemption price of the shares to their
respective holders upon the surrender of their share certificates. From and
after the making of such deposit, the holders of the shares designated for
redemption shall cease to be stockholders with respect to such shares and shall
have no interest in or claims against the Company by virtue thereof and shall
have no voting or other rights with respect to such shares, except the right
to
receive from such trust fund the moneys payable upon such redemption, less
any
required tax withholding amount, without interest thereon, upon surrender (and
endorsement, if required by the Company) of their certificates, and the shares
represented thereby shall no longer be deemed to be outstanding. Any balance
of
such moneys remaining unclaimed at the end of the five-year period commencing
on
the date fixed for redemption shall be repaid to the Company upon its request
expressed in a resolution of its Board of Directors.
(8)
Any
Series J Preferred Shares that shall at any time have been redeemed shall,
after
such redemption, have the status of authorized but unissued preferred stock,
without designation as to series until such shares are once more designated
as
part of a particular series by the Board of Directors.
(9) The
Series J Preferred Shares are subject to the provisions of Article IX of
the Charter, including, without limitation, the provisions for the redemption
of
Excess Stock (as defined in such Article). Notwithstanding the provisions of
Article IX of the Charter, Series J Preferred Shares which have been
exchanged pursuant to such Article for Excess Stock may also be redeemed, in
whole or in part, and, if in part, pro rata from the holders of record of such
shares in proportion to the number of such shares held by such holders (with
adjustments to avoid redemption of fractional shares) or by lot in a manner
determined by the Board of Directors, at any time when outstanding Series J
Preferred Shares are being redeemed.
Section
5. Voting
Rights.
The
Series J Preferred Shares shall not have any voting powers either general or
special, except as required by law and except that:
-7-
(1) If
and
whenever full cumulative dividends on the Series J Preferred Shares, or any
other series of capital stock of the Company ranking on a parity with the Series
J Preferred Shares as to dividends or upon liquidation (any such series, a
“Parity
Preferred Series”),
for
six quarterly dividend payment periods, whether or not consecutive, are in
arrears and unpaid, (such failure to pay by the Company, a “Dividend
Default”),
the
holders of all outstanding Series J Preferred Shares and any Parity Preferred
Series, voting as a single class without regard to series, will be entitled
to
elect two additional Directors until all dividends in arrears and unpaid on
the
Series J Preferred Shares and any Parity Preferred Series have been paid or
declared and funds therefor set apart for payment. At any time when such right
to elect Directors separately as a class shall have so vested, the Company
may,
and upon the written request of the holders of record of not less than 20%
of
the total number of Series J Preferred Shares and shares of any Parity Preferred
Series of the Company then outstanding shall, call a special meeting of
stockholders for the election of such Directors. In the case of such a written
request, such special meeting shall be held within 90 days after the delivery
of
such request and, in either case, at the place and upon the notice provided
by
law and in the Bylaws of the Company, provided
that the
Company shall not be required to call such a special meeting if such request
is
received less than 120
days
before the date fixed for the next ensuing Annual Meeting of Stockholders of
the
Company and the holders of all outstanding Series J Preferred Shares and shares
of any series of outstanding preferred stock are afforded the opportunity to
elect such Directors (or fill any vacancy) at such Annual Meeting of
Stockholders. Directors elected as aforesaid shall serve until the next Annual
Meeting of Stockholders of the Company or until their respective successors
shall be elected and qualified, or, if sooner, until an amount equal to all
dividends in arrears and unpaid have been paid or declared and funds therefor
set apart for payment. If, prior to the end of the term of any Director elected
as aforesaid, a vacancy in the office of such Director shall occur during the
continuance of a Dividend Default by reason of death, resignation, or
disability, such vacancy shall be filled for the unexpired term by the
appointment of a new Director for the unexpired term of such former Director,
such appointment to be made by the remaining Director or Directors elected
as
aforesaid.
(2)
The
affirmative vote or consent of the holders of at least two-thirds of the
outstanding Series J Preferred Shares and any Parity Preferred Series, voting
as
a single class without regard to series, will be required to issue, authorize
or
increase the authorized amount of any class or series of shares ranking prior
to
the Series J Preferred Shares and shares of each Parity Preferred Series as
to
dividends or upon liquidation or to issue
or
authorize any obligation or security convertible into or evidencing a right
to
purchase any such security. Subject to the preceding sentence, the affirmative
vote or consent of the holders of at least two-thirds of the outstanding Series
J Preferred Shares, voting separately as a class, will be required to amend
or
repeal any provision of, or add any provision to, the Charter if such action
would materially and adversely alter or change the powers, preferences,
privileges or rights of the outstanding Series J Preferred Shares.
(3)
Nothing
herein shall be taken to require a class vote or consent in connection with
the
authorization, designation, increase or issuance of shares of any class or
series (including additional preferred stock of any series) that rank junior
to
or on a parity with the Series J Preferred Shares as to dividends and
liquidation rights or in
-8-
connection
with the authorization, designation, increase or issuance of any bonds,
mortgages, debentures or other debt obligations of the Company.
Section
6. Conversion.
The
Series J Preferred Shares are not convertible into shares of any other class
or
series of the capital stock of the Company.
Section
7. Ranking.
The
Series J Preferred Shares shall, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Company, rank (a) senior
to all classes or series of Common Stock and all equity securities issued by
the
Company ranking junior to the Series J Preferred Shares as to the payment
of dividends or as to the distribution of assets upon liquidation, dissolution
or winding up of the Company, as applicable; (b) on a parity with all
Series C Preferred Shares, Series F Preferred Shares, Series G
Preferred Shares, Series I Preferred Shares and any other series of capital
stock issued by the Company ranking on a parity with the Series J Preferred
Shares as to the payment of dividends or as to distribution of assets upon
liquidation, dissolution or winding up of the Company, as applicable, whether
or
not the dividend rates, dividend payment dates or redemption or liquidation
prices per share thereof are different from those of the Series J Preferred
Shares; and (c) junior to all equity securities issued by the Company, the
terms of which specifically provide that such equity securities rank senior
to
the Series J Preferred Shares as to the payment of dividends or as to
distribution of assets upon liquidation, dissolution or winding up of the
Company.
Section
8. Information
Rights.
During
any Special Dividend Period, the Company will (i) transmit by mail or other
permissible means under the Exchange Act to all holders of any Series J
Preferred Share(s) (or any depositary share(s) evidencing a fractional interest
therein), without cost to such holders, copies of the annual reports on Form
10-K and quarterly reports on form 10-Q that the Company would have been
required to file with the Securities and Exchange Commission (“SEC”),
pursuant to Rule 13 or Rule 15(d) of the Exchange Act if the Company were
subject to such rules (other than any exhibits that would have been required),
and (ii) within 15 days following written request, supply copies of such reports
to any prospective holder of the Series J Preferred Shares or any such
depositary shares identified adequately in such written request. The Company
will mail (or otherwise provide) the reports to the holders of Series J
Preferred Shares or any such depositary shares within 15 days after the
respective dates by which the Company would have been required to file such
reports with the SEC if it were subject to Section 13 or 15(d) of the Exchange
Act.
Section
9. Severability
of Provisions.
If any
preference, right, voting power, restriction, limitation as to dividends or
other distributions, qualification or term or condition of redemption of the
Series J Preferred Shares set forth herein is invalid, unlawful or
incapable of being enforced by reason of any rule of law or public policy,
all
other preferences, rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of the Series J Preferred Shares set forth herein which can be
given effect without the invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect, and no preferences,
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of the
Series J Preferred
-9-
Shares
herein set forth shall be deemed dependent upon any other provision thereof
unless so expressed therein.
Section
10. Effective
Time.
These
Articles Supplementary will become effective at 12:01 a.m. on January 13,
2006.
-10-
IN
WITNESS WHEREOF, the Company has caused these Articles Supplementary to be
signed in its name and on its behalf and attested to by the undersigned on
this
12th day of January, 2006 and the undersigned acknowledges under the penalties
of perjury that these Articles Supplementary are the corporate act of said
Company and that to the best of his knowledge, information and belief, the
matters and facts set forth herein are true in all material
respects.
FIRST
INDUSTRIAL REALTY TRUST, INC.
By:
/s/
Scott A. Musil
Name:
Scott A. Musil
Title:
Senior Vice President
Attest:
By: _/s/
John H. Clayton______________
Name:
John H. Clayton
Title:
Vice President- Corporate Legal & Secretary
-11-
FIRST
INDUSTRIAL REALTY TRUST, INC.,
COMPUTERSHARE
SHAREHOLDER SERVICES, INC. AND COMPUTERSHARE TRUST COMPANY, N.A.,
AS
DEPOSITARY,
AND
THE
HOLDERS FROM TIME TO TIME OF
THE
DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING
TO SERIES J CUMULATIVE REDEEMABLE PREFERRED STOCK
DEPOSIT
AGREEMENT
Dated
as
of January 13, 2006
TABLE
OF
CONTENTS
Page
ARTICLE
I
DEFINITIONS
ARTICLE
II
FORM
OF
RECEIPTS, DEPOSIT OF STOCK,
EXECUTION
AND DELIVERY, TRANSFER,
SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION
2.1. Form
and
Transfer of
Receipts 2
SECTION
2.2. Deposit
of Stock; Execution and Delivery of Receipts in Respect
Thereof
4
SECTION
2.3. Registration
of Transfer of
Receipts
4
SECTION
2.4. Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of
Stock
5
SECTION
2.5. Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts
6
SECTION
2.6. Lost
Receipts,
etc. 6
SECTION
2.7. Cancellation
and Destruction of Surrendered
Receipts
6
SECTION
2.8. Redemption
of
Stock
6
SECTION
2.9. Stock
Constituting Excess
Stock
8
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
OF
RECEIPTS AND THE COMPANY
SECTION
3.1. Filing
Proofs, Certificates and Other
Information 8
SECTION
3.2. Payment
of Taxes or Other Governmental
Charges
8
SECTION
3.3. Warranty
as to
Stock
9
ARTICLE
IV
THE
DEPOSITED SECURITIES; NOTICES
SECTION
4.1. Cash
Distributions
9
SECTION
4.2. Distributions
Other than Cash, Rights, Preferences or
Privileges
10
SECTION
4.3. Subscription
Rights, Preferences or
Privileges
10
SECTION
4.4. Notice
of
Dividends, etc.; Fixing Record Date for Holders of
Receipts
11
SECTION
4.5. Voting
Rights
11
SECTION
4.6. Changes
Affecting Deposited Securities and Reclassifications, Recapitalizations,
etc.
11
SECTION
4.7. Delivery
of
Reports
12
SECTION
4.8. List
of
Receipt
Holders
12
ARTICLE
V
THE
DEPOSITARY, THE DEPOSITARY’S
AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION
5.1. Maintenance
of Offices, Agencies and Transfer Books by the Depositary;
Registrar
12
SECTION
5.2. Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar or the
Company
13
SECTION
5.3. Obligation
of the Depositary, the Depositary’s Agents, the Registrar and the
Company 15
SECTION
5.4. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
16
SECTION
5.5. Corporate
Notices and
Reports
16
SECTION
5.6. Indemnification
by the
Company
16
SECTION
5.7. Charges
and
Expenses
16
SECTION
5.8. Tax
Compliance
16
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1. Amendment
17
SECTION
6.2. Termination
0;
17
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1. Counterparts
60;
18
SECTION
7.2. Exclusive
Benefit of
Parties
18
SECTION
7.3. Invalidity
of
Provisions
18
SECTION
7.4. Notices &#
160;
18
SECTION
7.5. Appointment
of
Registrar
19
SECTION
7.6. Holders
of Receipts Are
Parties
19
SECTION
7.7. Governing
Law
19
SECTION
7.8. Inspection
of Deposit
Agreement 19
SECTION
7.9. Headings &
#160;
19
-ii-
DEPOSIT
AGREEMENT, dated as of January 13, 2006, among FIRST INDUSTRIAL REALTY
TRUST, INC., a Maryland corporation (the “Company”), COMPUTERSHARE
SHAREHOLDER SERVICES, INC., a Delaware corporation and its wholly-owned
subsidiary COMPUTERSHARE
TRUST COMPANY, N.A. (individually
“CSS” and the “Trust Company” respectively, or collectively
the “Depositary”),
and the
holders from time to time of the Receipts described herein.
WHEREAS,
it is desired to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of shares of Stock of the Company with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder
of
Receipts evidencing Depositary Shares in respect of the Stock so deposited;
and
WHEREAS,
the Receipts are to be substantially in the form of Exhibit A annexed hereto,
with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall, for all purposes, unless otherwise indicated,
apply
to the respective terms used in this Deposit Agreement:
“Articles
Supplementary” shall mean the Articles Supplementary filed with the Secretary of
State of the State of Maryland establishing the Stock as a series of preferred
stock of the Company.
“Deposit
Agreement” shall mean this Deposit Agreement, as amended or supplemented from
time to time.
“Depositary”
shall have the meaning set forth in the preamble hereto.
“Depositary
Shares” shall mean Depositary Shares, each representing 1/10,000 of a share of
Stock and evidenced by a Receipt.
“Depositary’s
Agent” shall mean one
or
more agents
appointed by the Depositary pursuant to Section 5.1 and shall include the
Registrar if such Registrar is not the Depositary.
“Depositary’s
Office” shall mean any office of the Depositary at which at any particular time
its depositary receipt business shall be administered.
“Excess
Stock” shall mean Excess Stock as defined in Section 7.4 of the Company’s
Amended and Restated Articles of Incorporation.
“Receipt”
shall mean one of the Depositary Receipts, substantially in the form set forth
as Exhibit A hereto, issued hereunder, whether in definitive or temporary form
and evidencing the number of Depositary Shares held of record by the record
holder of such Depositary Shares. If the context so requires, the term “Receipt”
shall be deemed to include the DTC Receipt (as defined in Section 2.1(c)
hereof).
“record
holder” or “holder” as applied to a Receipt shall mean the person in whose name
a Receipt is registered on the books of the Depositary maintained for such
purpose.
“Registrar”
shall mean the Depositary or such other bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein
provided.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Stock”
shall mean shares of the Company’s 7.25% Series J Cumulative Redeemable
Preferred Stock, $.0l par value per share.
ARTICLE
II
FORM
OF
RECEIPTS, DEPOSIT OF STOCK,
EXECUTION
AND DELIVERY, TRANSFER,
SURRENDER
AND REDEMPTION OF RECEIPTS
SECTION
2.1. Form
and Transfer of Receipts.
The
Company and the Depositary shall make application to The Depository Trust
Company (“DTC”) for acceptance of all or a portion of the Receipts for its
book-entry settlement system. The Company hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, with full power
to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility. So long as the Receipts are
eligible for book-entry settlement with DTC, unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with
book-entry settlement through DTC shall be represented by a single receipt
(the
“DTC Receipt”), which shall be deposited with DTC (or its designee) evidencing
all such Depositary Shares and registered in the name of the nominee of DTC
(initially expected to be Cede & Co.). The Depositary or such other entity
as is agreed to by DTC may hold the DTC Receipt as custodian for DTC. Ownership
of beneficial interests in the DTC Receipt shall be shown on, and the transfer
of such ownership shall be effected through, records maintained by (i) DTC
or
its nominee for such DTC Receipt or (ii) institutions that have accounts with
DTC.
If
DTC
subsequently ceases to make its book-entry settlement system available for
the
Receipts, the Company may instruct the Depositary regarding making other
arrangements for book-entry settlement. In the event that the Receipts are
not
eligible for book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of
the
Depositary Shares previously evidenced by the DTC definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive receipts shall
be in substantially the form annexed hereto as Exhibit A, with appropriate
insertions, modifications and omissions, as hereafter provided.
-2-
The
beneficial owners of Depositary Shares shall, except as stated above with
respect to Depositary Shares in book-entry form represented by the DTC Receipt,
be entitled to receive Receipts in physical, certificated form as herein
provided.
The
definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders, with appropriate insertions, modifications and
omissions, as hereinafter provided, if and to the extent required by any
securities exchange on which the Receipts are listed. The DTC Receipt shall
bear
such legend or legends as may be required by DTC in order for it to accept
the
Depositary Shares for its book-entry settlement system. Pending the preparation
of definitive Receipts or if definitive Receipts are not required by any
securities exchange on which the Receipts are listed, the Depositary, upon
the
written order of the Company, delivered in compliance with Section 2.2 hereof,
shall execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary
will
cause definitive Receipts to be prepared without unreasonable delay. After
the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Depositary’s Office or at such other place or places as the Depositary shall
determine, without charge to the holder. Upon surrender for cancellation of
any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company’s expense and without any charge to the
holder therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and
with
respect to the Stock, as definitive Receipts.
Receipts
shall be executed by the Depositary by the manual and/or facsimile signature
of
a duly authorized officer of the Depositary. No Receipt shall be entitled to
any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed in accordance with the foregoing sentence.
The Depositary shall record on its books each Receipt so signed and delivered
as
hereinafter provided.
Receipts
shall be in denominations of any number of whole Depositary Shares. The Company
shall deliver to the Depositary from time to time such quantities of Receipts
as
the Depositary may request to enable the Depositary to perform its obligations
under this Deposit Agreement.
Receipts
may be endorsed with or have incorporated in the text thereof such legends
or
recitals or changes not inconsistent with the provisions of this Deposit
Agreement as may be required by the Company
or
required to comply with any applicable law or any regulation thereunder or
with
the rules and regulations of any securities exchange upon which the Stock,
the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions
to
which any particular Receipts are subject, all
as
directed by the Company.
-3-
Title
to
Depositary Shares evidenced by a Receipt which is properly endorsed or
accompanied by a properly executed instrument of transfer shall be transferable
by delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until transfer of a Receipt shall be registered on
the
books of the Depositary as provided in Section 2.3, the Depositary may,
notwithstanding any notice to the contrary, treat the record holder thereof
at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to
any
notice provided for in this Deposit Agreement and for all other
purposes.
SECTION
2.2. Deposit
of Stock; Execution and Delivery of Receipts in Respect Thereof. Subject
to the terms and conditions of this Deposit Agreement, the Company may from
time
to time deposit shares of Stock under this Deposit Agreement by delivery to
the
Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by
the Depositary in accordance with the provisions of this Deposit
Agreement,
including the resolutions of the Board of Directors of the Company, as certified
by the Secretary or any Assistant Secretary of the Company on the date thereof
as being as being complete, accurate and in effect, relating to issuance and
sale of the Preferred Stock, (ii) a letter of counsel to the Company authorizing
reliance on such counsel’s opinions delivered to the underwriters named therein
relating to (A) the existence and good standing of the Company, (B) the due
authorization of the Depositary Shares and the status of the Depositary Shares
as validly issued, fully paid and non-assessable, and (C) the effectiveness
of
any registration statement under the Securities Act relating to the Depositary
Shares, and (iii) a written letter of instruction
of the
Company or such holder, as the case may be, directing the Depositary to execute
and deliver to, or upon the written order of, the person or persons stated
in
such order a Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock. Deposited Stock shall be held by the
Depositary at the Depositary’s Office or at such other place or places as the
Depositary shall determine.
Upon
receipt by the Depositary of a certificate or certificates for Stock deposited
in accordance with the provisions of this Section, together with the other
documents required as above specified, and upon recordation of the Stock on
the
books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
execute and deliver, to or upon the order of the person or persons named in
the
written order delivered to the Depositary referred to in the first paragraph
of
this Section 2.2, a Receipt or Receipts for the whole number of Depositary
Shares representing, in the aggregate, the Stock so deposited and registered
in
such name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary’s Office or
such other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such
delivery.
SECTION
2.3. Registration
of Transfer of Receipts.
Subject
to the terms and conditions of applicable law and of this Deposit Agreement,
the
Depositary shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by a duly authorized
attorney,
agent or
representative,
properly endorsed or accompanied by a properly executed instrument of
transfer
including a guarantee of the signature thereon by a participant in a signature
guarantee medallion program approved by the Securities Transfer
Associa-
-4-
tion
(“Signature Guarantee”).
Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing
the
same aggregate number of Depositary Shares as those evidenced by the Receipt
or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION
2.4. Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of
Stock.
Upon
surrender of a Receipt or Receipts at the Depositary’s Office or at such other
offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, and subject to the terms and conditions
of this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denomination or denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt
or
Receipts surrendered; provided, however, that the Depositary shall not issue
any
Receipt evidencing a fractional Depositary Share.
Any
holder of a Receipt or Receipts representing any number of whole shares of
Stock
may (unless the related Depositary Shares have previously been called for
redemption) withdraw the Stock and all money and other property, if any,
represented thereby by surrendering such Receipt or Receipts at the Depositary’s
Office or at such other offices as the Depositary may designate for such
withdrawals and paying any unpaid amount due the Depositary. If such holder’s
Depositary Shares are being held by DTC or its nominee pursuant to Section
2.1
hereof, such holder shall request withdrawal from the book-entry system of
Receipts representing any number of whole shares. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder or to the person
or persons designated by such holder as hereinafter provided the number of
whole
shares of Stock and all money and other property, if any, represented by the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of Stock will not thereafter be entitled to deposit such Stock hereunder
or to receive Depositary Shares therefor. If a Receipt delivered by the holder
to the Depositary in connection with such withdrawal shall evidence a number
of
Depositary Shares in excess of the number of Depositary Shares representing
the
number of whole shares of Stock to be so withdrawn, the Depositary shall at
the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
upon
his order, a new Receipt evidencing such excess number of Depositary Shares;
provided, however, that the Depositary shall not issue any Receipt evidencing
a
fractional Depositary Share.
Delivery
of the Stock and money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as
the
Depositary may deem appropriate, which, if required by the Depositary, shall
be
properly endorsed or accompanied by proper instruments of transfer.
If
the
Stock and the money and other property being withdrawn are to be delivered
to a
person or persons other than the record holder of the Receipt or Receipts being
surrendered for withdrawal of Stock, such holder shall execute and deliver
to
the Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such holder for
withdrawal of such shares of Stock be properly endorsed in blank or accompanied
by a properly executed instrument of transfer in blank.
-5-
Delivery
of the Stock and the money and other property, if any, represented by Receipts
surrendered for withdrawal shall be made by the Depositary at the Depositary’s
Office, except that, at the request, risk and expense of the holder surrendering
such Receipt or Receipts and for the account of the holder thereof, such
delivery may be made at such other place as may be designated by such
holder.
SECTION
2.5. Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of
Receipts.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the Depositary,
any
of the Depositary’s Agents or the Company may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any charges or
expenses payable by the holder of a Receipt pursuant to Sections 3.2 and 5.7
hereof, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature
including a Signature Guarantee,
and may
also require compliance with such regulations, if any, as the Depositary or
the
Company may establish consistent with the provisions of this Deposit
Agreement.
The
deposit of Stock may be refused, the delivery of Receipts against Stock may
be
suspended, the registration of transfer of Receipts may be refused and the
registration of transfer, surrender or exchange of outstanding Receipts may
be
suspended (i) during any period when the register of stockholders of the Company
is closed, or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary’s Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION
2.6. Lost
Receipts, etc.
In
case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in
its
reasonable discretion may execute and deliver a Receipt of like form and tenor
in exchange and substitution for such mutilated Receipt, or in lieu of and
in
substitution for such destroyed, lost or stolen Receipt, upon (i) the filing
by
the holder thereof with the Depositary of evidence reasonably satisfactory
to
the Depositary of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof, (ii) the
furnishing of the Depositary with reasonable indemnification and
the
provision of an open penalty surety bond satisfactory
to the Depositary and holding
it and the
Company
harmless,
and
(iii)
the payment of any reasonable expense (including reasonable fees, charges and
expenses of the Depositary) in connection with such execution and
delivery.
SECTION
2.7. Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary or any Depositary’s Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Company is authorized to destroy all Receipts so
cancelled.
SECTION
2.8. Redemption
of Stock.
Whenever the Company shall be permitted and shall elect to redeem shares of
Stock in accordance with the provisions of the Company’s Articles of
Incorporation or Articles Supplementary, it shall (unless otherwise agreed
to in
writing with the Depositary) give or cause to be given to the Depositary not
less than 45 days notice of the date of such proposed redemption or exchange
of
Stock and of the number of such shares held by the Depositary to be so redeemed
and the applicable redemption price, as set forth
-6-
in
the
Articles Supplementary, which notice shall be accompanied by a certificate
from
the Company stating that such redemption of Stock is in accordance with the
provisions of the Company’s Articles of Incorporation or Articles Supplementary.
On the date of such redemption, provided that the Company shall then have paid
or caused to be paid in full to the Depositary the redemption price of the
Stock
to be redeemed, plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption, in accordance with the provisions of the
Articles Supplementary, the Depositary shall redeem the number of Depositary
Shares representing such Stock. The Depositary shall mail notice of the
Company’s redemption of Stock and the proposed simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed by first-class
mail, postage prepaid, not less than 30 and not more than 60 days prior to
the
date fixed for redemption of such Stock and Depositary Shares (the “Redemption
Date”) to the record holders of the Receipts evidencing the Depositary Shares to
be so redeemed, at the address of such holders as they appear on the records
of
the Depositary; but neither failure to mail any such notice of redemption of
Depositary Shares to one or more such holders nor any defect in any notice
of
redemption of Depositary Shares to one or more such holders shall affect the
sufficiency of the proceedings for redemption as to the other holders. The
Company will provide the Depositary with the information necessary for the
Depositary to prepare such notice and each such notice shall state: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed;
(iii) the redemption price per Depositary Share; (iv) the place or places where
Receipts evidencing Depositary Shares are to be surrendered for payment of
the
redemption price; and (v) that dividends in respect of the Stock represented
by
the Depositary Shares to be redeemed will cease to accrue on such Redemption
Date and will bear no interest. In case fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed
shall be determined pro rata or by lot in a manner required by any exchange
upon
which the Depositary Shares are listed or as otherwise determined by the Board
of Directors.
Notice
having been mailed by the Depositary as aforesaid, from and after the Redemption
Date (unless the Company shall have failed to provide the funds necessary to
redeem the Stock evidenced by the Depositary Shares called for redemption)
(i) dividends on the shares of Stock so called for redemption shall cease
to accrue from and after such date, (ii) the Depositary Shares being redeemed
from such proceeds shall be deemed no longer to be outstanding, (iii) all rights
of the holders of Receipts evidencing such Depositary Shares (except the right
to receive the redemption price) shall, to the extent of such Depositary Shares,
cease and terminate and (iv) upon surrender in accordance with such
redemption; notice of the Receipts evidencing any such Depositary Shares called
for redemption (properly endorsed or assigned for transfer, if the Depositary
or
applicable law shall so require), such Depositary Shares shall be redeemed
by
the Depositary at a redemption price per Depositary Share equal to the same
fraction of the redemption price per share paid with respect to the shares
of
Stock as the fraction each Depositary Share represents of a share of Stock
plus
the same fraction of all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid. Any funds deposited by
the
Company with the Depositary for any Depositary Shares that the holders thereof
fail to redeem will, upon the written request of the Company, be returned to
the
Company after a period of five years from the date such funds are so
deposited.
-7-
If
fewer
than all of the Depositary Shares evidenced by a Receipt are called for
redemption, the Depositary will deliver to the holder of such Receipt upon
its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption; provided, however, that the Depositary shall not issue any
Receipt evidencing a fractional Depositary Share.
SECTION
2.9. Stock
Constituting Excess Stock.
As
provided in the Articles of Incorporation or Articles Supplementary, upon the
happening of certain events, shares of Stock shall be deemed to automatically
constitute Excess Stock. In the event of such a conversion, the Receipt
representing the deposited Stock so converted shall no longer represent, to
the
extent of the shares so converted, such deposited Stock. Promptly upon its
knowledge of the conversion of such deposited Stock into Excess Shares, the
Company shall notify the Depositary of such conversion, the number of shares
of
deposited Stock so converted, and the identity of the holder of the Receipt
so
affected, whereupon the Depositary shall promptly notify the holder of such
Receipt as to the foregoing information and the requirement for the holder
to
surrender such Receipt to the Depositary for cancellation of the number of
Depositary Shares evidenced thereby equal to the deposited Stock constituting
Excess Shares represented thereby.
If
fewer
than all of the Depositary Shares evidenced by a Receipt are required to be
surrendered for cancellation, the Depositary will deliver to the holder of
such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not required to be
surrendered for cancellation. Upon the conversion of the deposited Stock and
cancellation of the Depositary Shares represented thereby, the Depositary will
make appropriate adjustments in its records to reflect such conversion and
cancellation (including the reduction of any fractional share of deposited
Stock
and the issuance of any Excess Shares).
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS
OF
RECEIPTS AND THE COMPANY
SECTION
3.1. Filing
Proofs, Certificates and Other Information.
Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper or otherwise reasonably request. Subject
to applicable law, the Depositary or the Company may withhold the delivery,
or
delay the registration of transfer, redemption or exchange, of any Receipt
or
the withdrawal or conversion of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION
3.2. Payment
of Taxes or Other Governmental Charges.
Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7 hereof. Subject to applicable
law, registration of transfer of any Receipt or any withdrawal of Stock and
all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused until any such payment due is made, and
any
-8-
dividends,
interest payments or other distributions may be withheld or any part of or
all
the Stock or other property represented by the Depositary Shares evidenced
by
such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to
such sale), and such dividends, interest payments or other distributions or
the
proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any
deficiency.
SECTION
3.3. Warranty
as to Stock.
The
Company hereby represents and warrants that the Stock, when issued, will be
duly
authorized, validly issued, fully paid and nonassessable. Such representation
and warranty shall survive the deposit of the Stock and the issuance of
Receipts.
ARTICLE
IV
THE
DEPOSITED SECURITIES; NOTICES
SECTION
4.1. Cash
Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Sections 3.1 and 3.2
hereof, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.4 hereof such amounts of such dividend or distribution
as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that, in case the Company or the Depositary shall be required to
withhold and shall withhold from any cash dividend or other cash distribution
in
respect of the Stock an amount on account of taxes or as otherwise required
by
law, regulation or court process, the amount made available for distribution
or
distributed in respect of Depositary Shares shall be reduced accordingly. In
the
event that the calculation of any such cash dividend or other cash distribution
to be paid to any record holder on the aggregate number of Depositary Receipts
held by such holder results in an amount which is a fraction of a cent, the
amount the Depositary shall distribute to such record holder shall be rounded
to
the next highest whole cent if such fraction of a cent is equal to or greater
than $.005; otherwise such fractional interest shall be disregarded; and, upon
request of the Depositary, the Company shall pay the additional amount to the
Depositary for distribution.
SECTION
4.2. Distributions
Other than Cash, Rights, Preferences or Privileges.
Whenever the Depositary shall receive any distribution other than cash, rights,
preferences or privileges upon Stock, the Depositary shall, subject to Sections
3.1 and 3.2 hereof, distribute to record holders of Receipts on the record
date
fixed pursuant to Section 4.4 hereof such amounts of the securities or property
received by it as are, as nearly as may be practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such record holders, or if
for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems (after consultation
with the Company) such distribution not to be feasible, the Depositary may,
with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or
any
part thereof, at such place or places and upon such
-9-
terms
as
it may deem equitable and appropriate. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2 hereof, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.1 in the case of a distribution received
in
cash.
SECTION
4.3. Subscription
Rights, Preferences or Privileges.
If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences
or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, the
offering of such
rights, preferences or privileges shall in each such instance be communicated
to the Depositary and thereafter
made
available by the Depositary to the record holders of Receipts in such manner
as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer
of
any such rights, preferences or privileges the Depositary determines that it
is
not lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to execute such rights, preferences or privileges,
then CI, in its discretion (with approval of the Company, in any case where
the
Depositary has determined that it is not feasible to make such rights,
preferences or privileges available), may, if applicable laws or the terms
of
such rights, preferences or privileges permit such transfer, sell such rights,
preferences or privileges at public or private sale, at such place or places
and
upon such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2 hereof, be distributed by CI to the record
holders of Receipts entitled thereto as provided by Section 4.1 hereof in the
case of a distribution received in cash.
If
registration under the Securities Act of the securities to which any rights,
preferences or privileges relate is required in order for holders of Receipts
to
be offered or sold the securities to which such rights, preferences or
privileges relate, the Company will file promptly a registration statement
pursuant to the Securities Act with respect to such rights, preferences or
privileges and securities and use its best efforts and take all steps available
to it to cause such registration statement to become effective sufficiently
in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges. In no event
shall the Depositary make available to the holders of Receipts any right,
preference or privilege to subscribe for or to purchase any securities unless
and until it has received written notice from the Company that such registration
statement shall have become effective, or that the offering and sale of such
securities to such holders are exempt from registration under the provisions
of
the Securities Act and the Company shall have provided to the Depositary an
opinion of counsel reasonably satisfactory to the Depositary to such
effect.
If
any
other action under the laws of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company will use its reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the expiration
of such rights, preferences or privileges to enable such holders to exercise
such rights, preferences or privileges.
-10-
SECTION
4.4. Notice
of
Dividends, etc.; Fixing Record Date for Holders of Receipts.
Whenever any cash dividend or other cash distribution shall become payable
or
any distribution other than cash shall be made, or if rights, preferences or
privileges shall at any time be offered, with respect to Stock, or whenever
the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice, or
whenever the Depositary and the Company shall decide it is appropriate, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to or otherwise
in accordance with the terms of the Stock) for the determination of the holders
of Receipts who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof,
or to
give instructions for the exercise of voting rights at any such meeting, or
who
shall be entitled to notice of such meeting or for any other appropriate
reasons.
SECTION
4.5. Voting
Rights.
Upon
receipt of notice of any meeting at which the holders of Stock are entitled
to
vote, the Depositary shall, as soon as practicable thereafter, mail to the
record holders of Receipts a notice which shall contain (i) such information
as
is contained in such notice of meeting and (ii) a statement that the holders
may, subject to any applicable restrictions, instruct the Depositary as to
the
exercise of the voting rights pertaining to the amount of Stock represented
by
their respective Depositary Shares (including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to
a
person designated by the Company) and a brief statement as to the manner in
which such instructions may be given. Upon the written request of the holders
of
Receipts on the relevant record date, the Depositary shall use its best efforts
to vote or cause to be voted, in accordance with the instructions set forth
in
such requests, the maximum number of whole shares of Stock represented by the
Depositary Shares evidenced by all Receipts as to which any particular voting
instructions are received. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary
to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will not vote to
the
extent of the Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION
4.6. Changes
Affecting Deposited Securities and Reclassifications, Recapitalizations,
etc.
Upon
any
change in par value or liquidation preference, split-up, combination or any
other reclassification of the Stock, or upon any recapitalization,
reorganization, merger or consolidation affecting the Company or to which it
is
a party, the Depositary may in its discretion with the approval (not to be
unreasonably withheld) of, and shall upon the instructions of, the Company,
and
(in either case) in such manner as the Depositary may deem equitable, (i) make
such adjustments in the fraction of an interest in one share of Stock
represented by one Depositary Share as may be necessary (as certified by the
Company) fully to reflect the effects of such change in par value or liquidation
preference, split-up, combination or other reclassification of Stock, or of
such
recapitalization, reorganization, merger or consolidation and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such
case, the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities. Anything to the contrary herein notwithstanding,
holders of Receipts
-11-
shall
have the right from and after the effective date of any such change in par
value
or liquidation preference, split-up, combination or other reclassification
of
the Stock or any such recapitalization, reorganization, merger or consolidation
to surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts would have
been converted or for which such Stock would have been exchanged or surrendered
had such Receipt been surrendered immediately prior to the effective date of
such transaction.
SECTION
4.7. Delivery
of Reports.
The
Depositary shall furnish to holders of Receipts any reports and communications
received from the Company which are received by the Depositary as the holder
of
Stock.
SECTION
4.8. List
of Receipt Holders.
Promptly upon request from time to time by the Company, the Depositary shall
furnish to it a list, as of the most recent practicable date, of the names,
addresses and holdings of Depositary Shares of all record holders of Receipts.
The Company shall be entitled to receive such list four times
annually.
ARTICLE
V
THE
DEPOSITARY, THE DEPOSITARY’S
AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION
5.1. Maintenance
of Offices, Agencies and Transfer Books by the Depositary;
Registrar.
Upon
execution of this Deposit Agreement, the Depositary shall maintain at the
Depositary’s Office facilities for the execution and delivery, registration and
registration of transfer, surrender and exchange of Receipts, and at the offices
of the Depositary’s Agents, if any, facilities for the delivery, registration of
transfer, surrender and exchange of Receipts, all in accordance with the
provisions of this Deposit Agreement, provided that, to the extent provisions
of
this Deposit Agreement regarding transfer or registrar functions of the
Depositary conflict with the terms of any transfer agency agreement into which
the Company and the Depositary may enter, the transfer agency agreement shall
control.
The
Depositary shall keep books at the Depositary’s Office for the registration and
registration of transfer of Receipts, which books during normal business hours
shall be open for inspection by the record holders of Receipts subject to
applicable laws; provided that any such holder requesting to exercise such
right
shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person’s interest as an owner of Depositary
Shares evidenced by the Receipts.
Books
kept hereunder by the Depositary may be maintained in electronic
form.
The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties
hereunder.
The
Depositary may, with the approval of the Company, appoint a Registrar for
registration of the Receipts or the Depositary Shares evidenced thereby. If
the
Receipts or the Depositary Shares evidenced thereby or the Stock represented
by
such Depositary Shares shall be listed on
-12-
one
or
more national securities exchanges, the Depositary will appoint a Registrar
(acceptable to the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such exchange. Such Registrar
(which may be the Depositary if so permitted by the requirements of any such
exchange) may be removed and a substitute registrar appointed by the Depositary
upon the request or with the approval of the Company. If the Receipts, such
Depositary Shares or such Stock is listed on one or more other stock exchanges,
the Depositary will, at the request and at the expense of the Company, arrange
such facilities for the delivery, registration, registration of transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock
as
may be required by law or applicable securities exchange
regulation.
The
Depositary may from time to time appoint Depositary’s Agents to act in any
respect for the Depositary for the purposes of this Deposit Agreement and may
at
any time appoint additional Depositary’s Agents and vary or terminate the
appointment of such Depositary’s Agents. The Depositary will notify the Company
of any such action.
SECTION
5.2. Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the
Registrar or the Company.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt if by reason of any
provision of any present or future law, or regulation thereunder, of the United
States of America or of any other governmental authority or, in the case of
the
Depositary, the Depositary’s Agent or the Registrar, by reason of any provision,
present or future, of the Company’s Amended and Restated Articles of
Incorporation or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary’s Agent, the
Registrar or the Company shall be prevented, delayed or forbidden from, or
subjected to any penalty on account of, doing or performing any act or thing
which the terms of this Deposit Agreement provide shall be done or performed;
nor shall the Depositary, any Depositary’s Agent, the Registrar or the Company
incur liability to any holder of a Receipt (i) by reason of any nonperformance
or delay, caused as aforesaid, in the performance of any act or thing which
the
terms of this Deposit Agreement shall provide shall or may be done or performed,
or (ii) by reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement except, in the case of any such exercise
or failure to exercise discretion not caused as aforesaid, if caused by the
gross negligence or willful misconduct of the party charged with such exercise
or failure to exercise.
SECTION
5.3. Obligation
of the Depositary, the Depositary’s Agents, the Registrar and the
Company.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement or any Receipt to holders of Receipts other than for its gross
negligence, willful misconduct or bad faith.
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit
or other proceeding in respect of the Stock, the Depositary Shares or the
Receipts which in its reasonable opinion may involve it in expense or liability
unless indemnity reasonably satisfactory to it against expense and liability
be
furnished as often as may be reasonably required.
-13-
Neither
the Depositary nor any Depositary’s Agent nor the Registrar nor the Company
shall be liable for any action or any failure to act by it in reliance upon
the
written advice of legal counsel or accountants, or information from any person
presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such information. The
Depositary, any Depositary’s Agent, the Registrar and the Company may each rely
and shall each be protected in acting upon any written notice, request,
direction or other document reasonably believed by it to be genuine and to
have
been signed or presented by the proper party or parties.
In
the
event the Depositary shall receive conflicting claims, requests or instructions
from any holders of Receipts, on the one hand, and the Company, on the other
hand, the Depositary shall be entitled to act on such claims, requests or
instructions received from the Company, and shall be entitled to the full
indemnification set forth in Section 5.6 hereof fin connection with any action
so take.
The
Depositary shall not be responsible for any failure to carry out any instruction
to vote any of the shares of Stock or for the manner or effect of any such
vote
made, as long as any such action or inaction is in good faith. The Depositary
will indemnify the Company and hold it harmless from any loss, liability or
expense (including the reasonable costs and expenses of defending itself) which
arises from its negligence, wilful misconduct or bad faith. The Depositary
undertakes and any Registrar shall be required to undertake only such duties
as
specifically set forth herein and no implied covenants or obligations shall
be
read into this Deposit Agreement against the Depositary or Registrar. In no
event shall the Depositary’s aggregate liability during the term of this Deposit
Agreement with respect to, arising from, or arising in connection with this
Deposit Agreement, or from all services provided or omitted to be provided
under
this Deposit Agreement, whether in contract, or in tort, or otherwise, exceed
an
amount equal to three (3) times the amounts paid by the Company to Depositary
as
fees and charges, but not including reimbursable expenses. The indemnification
obligations of the Depositary set forth in this Section 5.3 hereof shall
survive any termination of this Deposit Agreement and any succession of any
Depositary.
The
Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents and
the Registrar may own, buy, sell and deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to any such person or otherwise
act as fully or as freely as if it were not the Depositary, parent, affiliate
or
subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also
act as trustee, transfer agent or registrar of any of the securities of the
Company and its affiliates.
It
is
intended that neither the Depositary nor any Depositary’s Agent nor the
Registrar, acting as the Depositary’s Agent or Registrar, as the case may be,
shall be deemed to be an “issuer” of the securities under the federal securities
laws or applicable state securities laws, it being expressly understood and
agreed that the Depositary, any Depositary’s Agent and the Registrar are acting
only in a ministerial capacity as Depositary or Registrar for the
Stock.
Neither
the Depositary (or its officers, directors, employees or agents) nor any
Depositary’s Agent nor the Registrar makes any representation or has any
responsibility as to the validity of the registration statement pursuant to
which the Depositary Shares are registered under the
-14-
Securities
Act, the Stock, the Depositary Shares or the Receipts (except for its
counter-signatures thereon) or any instruments referred to therein or herein,
or
as to the correctness of any statement made therein or herein.
The
Depositary assumes no responsibility for the correctness of the description
that
appears in the Receipts. Notwithstanding any other provision herein or in the
Receipts, the Depositary makes no warranties or representations as to the
validity or genuineness of any Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or sufficiency of
this
Deposit Agreement, as to the value of the Depositary Shares or as to any right,
title or interest of the record holders of Receipts in and to the Depositary
Shares. The Depositary shall not be accountable for the use or application
by
the Company of the Depositary Shares or the Receipts or the proceeds
thereof.
The
Depositary shall not be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not limited
to,
loss of anticipated profits, occasioned by breach of any provisions of this
Agreement even if apprised of the possibility of such damages.
SECTION
5.4. Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by delivering notice
of its election to do so to the Company, such resignation to take effect upon
the appointment of a successor Depositary and its acceptance of such appointment
as hereinafter provided.
The
Depositary may at any time be removed by the Company by notice of such removal
delivered to the Depositary, such removal to take effect upon the appointment
of
a successor Depositary and its acceptance of such appointment as hereinafter
provided.
In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall, within 60 days after the delivery of the notice of resignation
or
removal, as the case may be, appoint a successor Depositary, which shall be
a
bank or trust company having its principal office in the United States of
America and having a combined capital and surplus of at least $150,000,000.
If
no successor Depositary shall have been so appointed and have accepted
appointment within 60 days after delivery of such notice, the resigning or
removed Depositary may at the expense of the Company petition any court of
competent jurisdiction for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor Depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Stock and any moneys or property held hereunder to such successor, and
shall deliver to such successor a list of the record holders of all outstanding
Receipts and such records, books and other information in its possession
relating thereto. Any successor Depositary shall promptly mail notice of its
appointment to the record holders of Receipts.
-15-
Any
corporation into or with which the Depositary may be merged, consolidated or
converted shall be the successor of such Depositary without the execution or
filing of any document or any further act, and notice thereof shall not be
required hereunder. Such successor Depositary may authenticate the Receipts
in
the name of the predecessor Depositary or in the name of the successor
Depositary.
SECTION
5.5. Corporate
Notices and Reports.
The
Company agrees that it will deliver to the Depositary, and the Depositary will,
promptly after receipt thereof, transmit to the record holders of Receipts,
in
each case at the addresses recorded in the Depositary’s books, copies of all
notices and reports (including without limitation financial statements) required
by law or by the rules of any national securities exchange upon which the Stock,
the Depositary Shares or the Receipts are listed, to be furnished to the record
holders of Receipts. Such transmission will be at the Company’s expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request.
SECTION
5.6. Indemnification
by the Company.
The
Company shall indemnify the Depositary, any Depositary’s Agent and the Registrar
against, and hold each of them harmless from, any loss, liability or expense
(including the reasonable costs and expenses of defending itself) which may
arise out of acts performed or omitted in connection with this Deposit Agreement
and the Receipts by the Depositary, any Registrar or any of their respective
agents (including any Depositary’s Agent), except for any liability arising out
of gross negligence, willful misconduct or bad faith on the respective parts
of
any such person or persons, subject to the provisions of Section 5.3, above.
The
obligations of the Company set forth in this Section 5.6 hereof shall survive
any termination of this Deposit Agreement or any succession of any Depositary
or
Depositary’s Agent.
SECTION
5.7. Charges
and Expenses.
The
Company shall pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The Company shall
pay
charges of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Shares, all withdrawals of shares
of
the Stock by owners of Depositary Shares, and any redemption of the Stock at
the
option of the Company. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses
for
which it is not otherwise liable hereunder, such holder will be liable for
such
charges and expenses. All other charges and expenses of the Depositary and
any
Depositary’s Agent hereunder (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
at such intervals as the Company and the Depositary may agree.
SECTION
5.8. Tax
Compliance.
CSS
and, where applicable, the Depositary, on its own behalf and on behalf of the
Company, will comply with all applicable certification, information reporting
and withholding (including “backup” withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to
(i)
any payments made with respect to the Depositary Shares or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Depositary Receipts or the Depositary Shares. Such
-16-
compliance
shall include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
The
Depositary shall comply with any direction received from the Company with
respect to the application of such requirements to particular payments or
holders or in other particular circumstances, and may for purposes of this
Deposit Agreement rely on any such direction in accordance with the provisions
of Section 5.3 hereof.
The
Depositary shall maintain all appropriate records documenting compliance with
such requirements, and shall make such records available on request to the
Company or to its authorized representatives.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.1. Amendment.
The
form of the Receipts and any provisions of this Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and
the
Depositary in any respect which they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in the fees) which shall
materially adversely alter the rights of the holders of Receipts shall be
effective unless such amendment shall have been approved by the holders of
at
least a majority of the Depositary Shares then outstanding. Every holder of
an
outstanding Receipt at the time any such amendment becomes effective shall
be
deemed, by continuing to hold such Receipt, to be bound by the Deposit Agreement
as amended thereby. Subject to Section 2.9 hereof, notwithstanding the
foregoing, in no event may any amendment impair the right of any holder of
any
Depositary Shares, upon surrender of the Receipts evidencing such Depositary
Shares and subject to any conditions specified in this Deposit Agreement, to
receive shares of Stock and any money or other property, if any, represented
thereby, except in order to comply with mandatory provisions of applicable
law.
SECTION
6.2. Termination.
This
Deposit Agreement may be terminated by the Company (provided (i) the consent
of
holders of a majority of the Depositary Shares has been obtained (such consent
not to be unreasonably withheld, delayed or conditioned) or (ii) termination
is
necessary to preserve the Company’s status as a real estate investment trust),
at any time upon not less than 30 days’ prior written notice to the Depositary,
in which case, on a date that is not later than 30 days after the date of such
notice, the Depositary shall deliver or make available for delivery to holders
of Depositary Shares, upon surrender of the Receipts evidencing such Depositary
Shares, such number of whole or fractional shares of Stock as are represented
by
such Depositary Shares. This Deposit Agreement will automatically terminate
after (i) all outstanding Depositary Shares have been redeemed pursuant to
Section 2.8 hereof or (ii) there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed
to
the holders of Depositary Receipts pursuant to Section 4.1 or 4.2 hereof, as
applicable.
In
the
event that the transfer agency relationship in effect between the Company and
the Depositary terminates, the Depositary will be deemed to resign automatically
with acceptance of
-17-
such
resignation by the Company on the effective date of such termination and any
required notice will be sent by the Company.
Upon
the
termination of this Deposit Agreement, the Company shall be discharged from
all
obligations under this Deposit Agreement except for its obligations to the
Depositary, the Registrar and any Depositary’s Agent under Sections 5.6 and 5.7
hereof.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1. Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, and by each
of
the parties hereto on separate counterparts, each of which counterparts, when
so
executed and delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
SECTION
7.2. Exclusive
Benefit of Parties.
This
Deposit Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or
equitable right, remedy or claim to any other person whatsoever.
SECTION
7.3. Invalidity
of Provisions.
In case
any one or more of the provisions contained in this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4. Notices.
Any and
all notices to be given to the Company hereunder or under the Receipts shall
be
in writing and shall be deemed to have been duly given if personally delivered
or sent by mail, or by telegram or facsimile transmission confirmed by letter,
addressed to the Company at:
First
Industrial Realty Trust, Inc.
311
S.
Wacker Drive, Suite 4000
Chicago,
Illinois 60606
Attn:
John Clayton, Esq.
Facsimile
No.: (312) 922-6320
or
at any
other address of which the Company shall have notified the Depositary in
writing.
Any
and
all notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telegram or facsimile transmission confirmed
by
letter, addressed to the Depositary at the Depositary’s Office, at:
-18-
Computershare
Trust Company, N.A.
c/o
Computershare Shareholder Services, Inc.
150
Royall Street
Canton,
Massachusetts 02021
Attn:
General Counsel
Facsimile
No.: 781-575-4210
or
at any
other address of which the Depositary shall have notified the Company in
writing.
Any
and
all notices to be given to any record holder of a Receipt hereunder or under
the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended
for
such holder be mailed to some other address, at the address designated in such
request.
Delivery
of a notice sent by mail or by telegram or facsimile transmission shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or facsimile
transmission) is deposited for mailing by first class mail, postage prepaid.
The
Depositary or the Company may, however, act upon any telegram or facsimile
transmission received by it from the other or from any holder of a Receipt,
notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION
7.5. Appointment
of Registrar.
The
Company hereby also appoints the Depositary as Registrar in respect of the
Receipts and the Depositary hereby accepts such appointments.
SECTION
7.6. Holders
of Receipts Are Parties.
The
holders of Receipts from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance of delivery thereof.
SECTION
7.7. Governing
Law.
THIS
DEPOSIT AGREEMENT AND THE RECEIPTS AND ALL RIGHTS HEREUNDER AND THEREUNDER
AND
PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS APPLICABLE TO CONTRACTS MADE IN AND TO BE PERFORMED IN THE STATE
OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION
7.8. Inspection
of Deposit Agreement.
Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary’s Agent and shall be open to inspection during business hours at the
Depositary’s office or respective offices of the Depositary’s Agent, if any, by
any holder of a Receipt.
SECTION
7.9. Headings.
The
headings of articles and sections in this Deposit Agreement have been inserted
for convenience only and are not to be regarded as a part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
-19-
[Signature
Page Follows]
-20-
IN WITNESS
WHEREOF, the Company and the Depositary have duly executed this Agreement as
of
the day and year first above set forth, and all holders of Receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts issued
in
accordance with the terms hereof.
FIRST
INDUSTRIAL REALTY TRUST, INC.
By: /s/
John H. Clayton
Name: John H. Clayton
Title: Vice President - Corporate Legal & Secretary
COMPUTERSHARE
TRUST COMPANY, N.A.
By: /s/
John H. Ruocco
Name: John H. Ruocco
Title: Senior Account Manager
COMPUTERSHARE
SHAREHOLDER SERVICES, INC..
By: /s/
Thomas F. Lindeman
Name: Thomas F. Lindeman
Title: Senior Managing Director
-21-
EXHIBIT
A
[FORM
OF
FACE OF RECEIPT]
NUMBER
0;
SHARES
DR-[ ]
(CUSIP
_____________)
see
reverse for certain definitions
THIS
CERTIFICATE IS TRANSFERABLE
IN
NEW
YORK, NY
[Logo]
RECEIPT
FOR DEPOSITARY SHARES,
EACH
REPRESENTING 1/10,000 OF A SHARE OF
SERIES
J
CUMULATIVE REDEEMABLE PREFERRED STOCK
FIRST
INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED
UNDER THE LAWS OF THE STATE OF MARYLAND)
Computershare
Trust Company, N.A., a national banking association duly organized and existing
under the laws of the United States of America, and Computershare Shareholder
Services, Inc., a Delaware corporation, with an office at the time of execution
of the Deposit Agreement (as defined below) at 150 Royall Street, Canton,
Massachusetts 02021, as Depositary (the “Depositary”), hereby certifies that
_____________is a registered owner of ___________________ DEPOSITARY SHARES
(“Depositary Shares”), each Depositary Share representing 1/10,000 of one fully
paid and non-assessable share of Series J Cumulative Redeemable Preferred Stock,
$.01 par value per share (the “Shares”), of First Industrial Realty Trust, Inc.,
a Maryland corporation (the “Company”), on deposit with the Depositary, subject
to the terms and entitled to the benefits of the Deposit Agreement dated as
of
January 13, 2006 (the “Deposit Agreement”), among the Company, the
Depositary and the holders from time to time of Receipts for Depositary Shares.
By accepting this Receipt, the holder hereof becomes a party to and agrees
to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or be entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized officer or, if a
Registrar in respect of the Receipts (other than the Depositary) shall have
been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
Dated:
Countersigned
and Registered:
COMPUTERSHARE
TRUST COMPANY, N.A.
Depositary
and Registrar
By:
____________________________________
By:
___________________________________
SECRETARY
By:
___________________________________
PRESIDENT
A-1
[FORM
OF
REVERSE OF RECEIPT]
FIRST
INDUSTRIAL REALTY TRUST, INC.
THE
SHARES OF STOCK REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO
RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION’S MAINTENANCE OF ITS
QUALIFICATION AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE
CODE
OF 1986, AS AMENDED. NO PERSON MAY BENEFICIALLY OWN SHARES OF STOCK IN EXCESS
OF
9.9% (OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS
OF THE CORPORATION) OF THE OUTSTANDING STOCK OF THE CORPORATION. ANY PERSON
WHO
ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF THE ABOVE LIMITATION
MUST IMMEDIATELY NOTIFY THE CORPORATION. ALL CAPITALIZED TERMS IN THIS LEGEND
HAVE THE MEANINGS DEFINED IN THE CORPORATION’S ARTICLES OF INCORPORATION, A COPY
OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER, WILL BE SENT WITHOUT CHARGE
TO
EACH STOCKHOLDER WHO SO REQUESTS. IF THE RESTRICTIONS ON TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY MAY BE AUTOMATICALLY EXCHANGED FOR SHARES
OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE CORPORATION.
THE
CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT CHARGE A
FULL
STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSIONS AND OTHER RIGHTS,
VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE AND, WITH RESPECT TO ANY PREFERRED OR SPECIAL
CLASS IN A SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES
BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE BEEN SET AND THE
AUTHORITY OF THE BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND PREFERENCES
OF SUBSEQUENT SERIES.
The
following abbreviations, when used in the inscription on the face of this
Depositary Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
|
TEN
COM —
|
as
tenants in common
|
UNIF
GIFT MIN ACT -. . . Custodian . . . .
|
|
TEN
ENT —
|
tenants
by the entireties
|
(Cust)
|
|
JT
TEN —
|
as
joint tenants with right of survivorship and not as tenants in
common
|
Minor
under Uniform Gifts to Minors Act . . . . .
(State)
|
Additional
abbreviations may also be used though not in the above list.
For
Value
Received, _____________________ hereby sells, assigns and transfers
unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
Depositary
Shares represented by the within Depositary Receipt, and do hereby irrevocably
constitute and appoint ________________ Attorney to transfer the said Depositary
Shares on the books of the within named Depositary with full power of
substitution in the premises.
Dated Signed
A-2
NOTICE:
THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT ALTERATION
OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
SIGNATURE(S)
GUARANTEED
By:
___________________
THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
A-3
EXECUTION COPY
FIRST
INDUSTRIAL, L.P.
TENTH
AMENDED AND RESTATED
LIMITED
PARTNERSHIP AGREEMENT
|
THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE
AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS
PURSUANT
TO A REGISTRATION OR EXEMPTION
THEREFROM.
|
TABLE
OF CONTENTS
Page
|
ARTICLE
I - INTERPRETIVE PROVISIONS
|
||
|
Section
1.1
|
Certain
Definitions
|
1
|
|
Section
1.2
|
Rules
of Construction
|
12
|
|
ARTICLE
II - CONTINUATION
|
||
|
Section
2.1
|
Continuation
|
13
|
|
Section
2.2
|
Name
|
13
|
|
Section
2.3
|
Place
of Business; Registered Agent
|
13
|
|
ARTICLE
III - BUSINESS PURPOSE
|
||
|
Section
3.1
|
Business
|
13
|
|
Section
3.2
|
Authorized
Activities
|
13
|
|
ARTICLE
IV - CAPITAL CONTRIBUTIONS
|
||
|
Section
4.1
|
Capital
Contributions
|
14
|
|
Section
4.2
|
Additional
Partnership Interests
|
14
|
|
Section
4.3
|
No
Third Party Beneficiaries
|
15
|
|
Section
4.4
|
Capital
Accounts
|
15
|
|
Section
4.5
|
Return
of Capital Account; Interest
|
16
|
|
Section
4.6
|
Preemptive
Rights
|
16
|
|
Section
4.7
|
REIT
Share Purchases
|
16
|
|
ARTICLE
V - ALLOCATIONS AND DISTRIBUTIONS
|
||
|
Section
5.1
|
Limited
Liability
|
16
|
|
Section
5.2
|
Profits,
Losses and Distributive Shares
|
17
|
|
Section
5.3
|
Distributions
|
22
|
|
Section
5.4
|
Distribution
upon Redemption
|
23
|
|
Section
5.5
|
Distributions
upon Liquidation
|
23
|
|
Section
5.6
|
Amounts
Withheld
|
23
|
|
ARTICLE
VI - PARTNERSHIP MANAGEMENT
|
||
|
Section
6.1
|
Management
and Control of Partnership Business
|
24
|
|
Section
6.2
|
No
Management by Limited Partners; Limitation of
Liability
|
24
|
|
Section
6.3
|
Limitations
on Partners
|
25
|
|
Section
6.4
|
Business
with Affiliates
|
25
|
|
Section
6.5
|
Compensation;
Reimbursement of Expenses
|
25
|
|
Section
6.6
|
Liability
for Acts and Omissions
|
26
|
|
Section
6.7
|
Indemnification
|
26
|
|
ARTICLE
VII - ADMINISTRATIVE, FINANCIAL AND TAX MATTERS
|
||
|
Section
7.1
|
Books
and Records
|
27
|
|
Section
7.2
|
Annual
Audit and Accounting
|
27
|
|
Section
7.3
|
Partnership
Funds
|
27
|
|
Section
7.4
|
Reports
and Notices
|
27
|
|
Section
7.5
|
Tax
Matters
|
27
|
|
Section
7.6
|
Withholding
|
28
|
|
ARTICLE
VIII - TRANSFER OF PARTNERSHIP INTERESTS; ADMISSIONS OF
PARTNERS
|
||
|
Section
8.1
|
Transfer
by General Partner
|
28
|
|
Section
8.2
|
Obligations
of a Prior General Partner
|
29
|
-i-
|
Section
8.3
|
Successor
General Partner
|
29
|
|
Section
8.4
|
Restrictions
on Transfer and Withdrawal by Limited Partner
|
29
|
|
Section
8.5
|
Substituted
Limited Partner
|
30
|
|
Section
8.6
|
Timing
and Effect of Transfers
|
31
|
|
Section
8.7
|
Additional
Limited Partners
|
31
|
|
Section
8.8
|
Amendment
of Agreement and Certificate
|
31
|
|
ARTICLE
IX - REDEMPTION
|
||
|
Section
9.1
|
Right
of Redemption
|
31
|
|
Section
9.2
|
Timing
of Redemption
|
32
|
|
Section
9.3
|
Redemption
Price
|
32
|
|
Section
9.4
|
Assumption
of Redemption Obligation
|
32
|
|
Section
9.5
|
Further
Assurances; Certain Representations
|
33
|
|
Section
9.6
|
Effect
of Redemption
|
33
|
|
Section
9.7
|
Registration
Rights
|
33
|
|
Section
9.8
|
Redemption
upon REIT Share Repurchases by the General
Partner.
|
33
|
|
ARTICLE
X - DISSOLUTION AND LIQUIDATION
|
||
|
Section
10.1
|
Term
and Dissolution
|
34
|
|
Section
10.2
|
Liquidation
of Partnership Assets
|
34
|
|
Section
10.3
|
Effect
of Treasury Regulations
|
35
|
|
Section
10.4
|
Time
for Winding-Up
|
36
|
|
ARTICLE
XI - AMENDMENTS AND MEETINGS
|
||
|
Section
11.1
|
Amendment
Procedure
|
36
|
|
Section
11.2
|
Meetings
and Voting
|
37
|
|
Section
11.3
|
Voting
of LB Units
|
37
|
|
ARTICLE
XII - MISCELLANEOUS PROVISIONS
|
||
|
Section
12.1
|
Title
to Property
|
37
|
|
Section
12.2
|
Other
Activities of Limited Partners
|
37
|
|
Section
12.3
|
Power
of Attorney
|
38
|
|
Section
12.4
|
Notices
|
39
|
|
Section
12.5
|
Further
Assurances
|
39
|
|
Section
12.6
|
Titles
and Captions
|
39
|
|
Section
12.7
|
Applicable
Law
|
39
|
|
Section
12.8
|
Binding
Agreement
|
39
|
|
Section
12.9
|
Waiver
of Partition
|
39
|
|
Section
12.10
|
Counterparts
and Effectiveness
|
39
|
|
Section
12.11
|
Survival
of Representations
|
39
|
|
Section
12.12
|
Entire
Agreement
|
39
|
-ii-
Exhibit
1A - First
Highland Partners
Exhibit
1B - Schedule
of Partners
Exhibit
1C - LB
Partners
Exhibit
1D - Contributor
Partners
Exhibit
2 - Form
of
Redemption Notice
Exhibit
3 - Form
of
Registration Rights Agreement
-iii-
FIRST
INDUSTRIAL, L.P.
TENTH
AMENDED AND RESTATED
LIMITED
PARTNERSHIP AGREEMENT
The
undersigned, being the sole general partner of First Industrial, L.P. (the
“Partnership”), a limited partnership formed under the Delaware Revised Uniform
Limited Partnership Act, does hereby amend and restate the Ninth Amended and
Restated Partnership Agreement (as described below) this 13th day of January,
2006 as follows:
R
E C I T A L S:
A. The
Partnership was formed pursuant to a Certificate of Limited Partnership filed
on
November 23, 1993 with the Secretary of State of the State of Delaware
under the name “ProVest, L.P.” and a Limited Partnership Agreement dated
November 23, 1993 (the “Original Partnership Agreement”).
B. The
Original Partnership Agreement was amended and restated as of January 28, 1994
(such amended and restated partnership agreement, the “Prior Partnership
Agreement”).
C. A
Second
Amended and Restated Limited Partnership Agreement was executed as of June
30,
1994, a Third Amended and Restated Partnership Agreement was executed as of
May
14, 1997, a Fourth Amended and Restated Partnership Agreement was executed
as of
June 6, 1997, a Fifth Amended and Restated Partnership Agreement was executed
as
of February 4, 1998, a Sixth Amended and Restated Partnership Agreement was
executed as of March 18, 1998, a Seventh Amended and Restated Partnership
Agreement was executed as of May 26, 2004, an Eighth Amended and Restated
Partnership Agreement was executed as of June 2, 2004, a Ninth Amended and
Restated Partnership Agreement was executed as of November 8, 2005 (the “Ninth
Partnership Agreement”).
D. The
General Partner desires to amend and restate the Ninth Partnership Agreement
to
(i) reflect the interests granted to the Class J Limited Partner (as
hereinafter defined) and (ii) set forth the understandings and agreements,
including certain rights and obligations, among the Partners (as hereinafter
defined) with respect to the Partnership.
ARTICLE
I -
INTERPRETIVE PROVISIONS
Section
1.1 Certain
Definitions.
The
following terms have the definitions hereinafter indicated whenever used in
this
Agreement with initial capital letters:
Act:
The
Delaware Revised Uniform Limited Partnership Act, Sections 17-101 to 17-1109
of
the Delaware Code Annotated, Title 6, as amended from time to time.
Additional
Limited Partner:
A Person
admitted to the Partnership as a Limited Partner in accordance with Section
8.7
hereof and who is shown as such on the books and records of the
Partnership.
Adjusted
Capital Account:
With
respect to any Partner, such Partner’s Capital Account maintained in accordance
with Section 4.4 hereof, as of the end of the relevant Fiscal Year of the
Partnership, after giving effect to the following adjustments:
(A) Credit
to
such Capital Account such Partner’s share of Partnership Minimum Gain determined
in accordance with Treasury Regulations Section 1.704-2(g)(1) and such Partner’s
share of Partner Minimum Gain determined in accordance with Treasury Regulations
Section 1.704-2(i)(5).
(B) Debit
to
such Capital Account the items described in Treasury Regulations Section 1.704-
1(b)(2)(ii)(d)(4), (5) and (6).
The
foregoing definition of “Adjusted Capital Account” is intended to comply with
the provisions of Treasury Regulations Sections 1.704-1(b)(2)(ii) and 1.704-2
and shall be interpreted consistently therewith.
Adjusted
Capital Account Deficit:
With
respect to any Partner, the deficit balance, if any, in that Partner’s Adjusted
Capital Account as of the end of the relevant Fiscal Year of the
Partnership.
Affiliate:
With
respect to any referenced Person, (i) a member of such Person’s immediate
family; (ii) any Person who directly or indirectly owns, controls or holds
the
power to vote ten percent (10%) or more of the outstanding voting securities
of
the Person in question; (iii) any Person ten percent (10%) or more of whose
outstanding securities are directly or indirectly owned, controlled, or held
with power to vote by the Person in question; (iv) any Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with the Person in question; (v) if the Person in question is a
corporation, any executive officer or director of such Person or of any
corporation directly or indirectly controlling such Person; and (vi) if the
Person in question is a partnership, any general partner of the partnership
or
any limited partner owning or controlling ten percent (10%) or more of either
the capital or profits interest in such partnership. As used herein, “control”
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise.
Aggregate
Protected Amount:
With
respect to the Contributor Partners, as a group, the aggregate balances of
the
Protected Amounts, if any, of the Contributor Partners, as determined on the
date in question.
Agreed
Value: In
the
case of any (i) Contributed Property acquired pursuant to a Contribution
Agreement, the value of such Contributed Property as set forth in such
Contribution Agreement or, if no such value is set forth for such Contributed
Property, the portion of the consideration provided for under such Contribution
Agreement allocable to such Contributed Property, as determined by the General
Partner in its reasonable discretion, (ii) Contributed Property acquired other
than pursuant to a Contribution Agreement, the fair market value of such
property at the time of contribution, as determined by the General Partner
using
such method of valuation as it may adopt in its reasonable discretion and (iii)
property distributed to a Partner by the Partnership, the Partnership’s Book
Value of such property at the time such property is distributed without taking
into account, in the case of each of (i), (ii) and (iii), the amount of any
related indebtedness assumed by the Partnership (or the Partner in the case
of
clause (iii)) or to which the Contributed Property (or distributed property
in
the case of clause (iii)) is taken subject.
Agreement:
This
Tenth Amended and Restated Limited Partnership Agreement and all Exhibits
attached hereto, as the same may be amended or restated and in effect from
time
to time.
Assignee:
Any
Person to whom one or more Partnership Units have been Transferred as permitted
under this Agreement but who has not become a Substituted Limited Partner in
accordance with the provisions hereof.
Bankruptcy:
Either
(i) a referenced Person’s making an assignment for the benefit of creditors,
(ii) the filing by a referenced Person of a voluntary petition in bankruptcy,
(iii) a referenced Person’s being adjudged insolvent or having entered against
him an order for relief in any bankruptcy or insolvency proceeding, (iv) the
filing by a referenced Person of an answer seeking any reorganization,
composition, readjustment, liquidation, dissolution, or similar relief under
any
law or regulation, (v) the filing by a referenced Person of an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against him in any proceeding of
-2-
reorganization,
composition, readjustment, liquidation, dissolution, or for similar relief
under
any statute, law or regulation or (vi) a referenced Person’s seeking, consenting
to, or acquiescing in the appointment of a trustee, receiver or liquidator
for
all or substantially all of his property (or court appointment of such trustee,
receiver or liquidator).
Book-Tax
Disparity:
With
respect to any item of Contributed Property, or property the Book Value of
which
has been adjusted in accordance with Section 4.4(D), as of the date of
determination, the difference between the Book Value of such property and the
adjusted basis of such property for federal income tax purposes.
Book
Value:
With
respect to any Contributed Property, the Agreed Value of such property reduced
(but not below zero) by all Depreciation with respect to such property properly
charged to the Partners’ Capital Accounts, and with respect to any other asset,
the asset’s adjusted basis for federal income tax purposes; provided,
however,
(a) the
Book Value of all Partnership Assets shall be adjusted in the event of a
revaluation of Partnership Assets in accordance with Section 4.4(D) hereof,
(b)
the Book Value of any Partnership Asset distributed to any Partner shall be
the
fair market value of such asset on the date of distribution as determined by
the
General Partner and (c) such Book Value shall be adjusted by the Depreciation
taken into account with respect to such asset for purposes of computing Profits
and Losses.
Capital
Account:
The
account maintained by the Partnership for each Partner described in Section
4.4
hereof.
Capital
Contribution:
The
total amount of cash or cash equivalents and the Agreed Value (reduced to take
into account the amount of any related indebtedness assumed by the Partnership,
or to which the Contributed Property is subject) of Contributed Property which
a
Partner contributes or is deemed to contribute to the Partnership pursuant
to
the terms of this Agreement.
Cash
Payment:
The
payment to a Redeeming Party of a cash amount determined by multiplying (i)
the
number of Partnership Units tendered for redemption by such Redeeming Party
pursuant to a validly proffered Redemption Notice by (ii) the Unit Value on
the
date the Redemption Notice is received by the General Partner.
Certificate:
The
Partnership’s Certificate of Limited Partnership filed in the office of the
Secretary of State of the State of Delaware, as amended from time to
time.
Class
C Deemed Original Issue Date:
(i) In
the case of any Class C Unit which is part of the first issuance of such units
or part of a subsequent issuance of such units prior to October 1, 1997, the
date of such first issuance and (ii) in the case of any such unit which is
part
of a subsequent issuance of such units on or after October 1, 1997, the later
of
(x) October 1, 1997 and (y) the last Class C Distribution Period Commencement
Date which precedes the date of issuance of such unit and which succeeds the
last Class C Distribution Period for which full cumulative Class C Priority
Return Amounts have been paid; provided,
however,
that,
in the case of any such unit which is part of a subsequent issuance on or after
October 1, 1997, the date of issuance of which falls between (a) the record
date
for dividends payable on the Series C Preferred Shares on the first succeeding
dividend payment date on such stock and (b) such dividend payment date, the
“Class C Deemed Original Issue Date” means the date of the Class C Distribution
Period Commencement Date that immediately follows the date of issuance of such
unit.
Class
C Distribution Period:
The
Class C Initial Distribution Period and each quarterly distribution period
thereafter, commencing on January 1, April 1, July 1 and October 1 of each
year
and ending on and including the day preceding the next Class C Distribution
Period Commencement Date.
Class
C Distribution Period Commencement Date:
January
1, April 1, July 1 and October 1 of each year commencing October 1,
1997.
-3-
Class
C Initial Distribution Period:
The
period from the Class C Deemed Original Issue Date for a Class C Unit to, but
excluding, October 1, 1997.
Class
C Limited Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, in its capacity as a
limited partner in the Partnership holding Class C Units.
Class
C Priority Return Amount:
With
respect to each Class C Unit, (i) for the Class C Initial Distribution Period,
the pro rata portion of the amount referred to in clause (ii) of this
definition, computed in accordance with the last sentence of Section 5.3(A)
hereof, and (ii) for each Class C Distribution Period thereafter, an amount
equal to 2.15625% of that portion of the Capital Contribution of the Class
C
Limited Partner allocable to each such unit. Class C Priority Return Amounts
on
each Class C Unit that are not distributed as provided in Section 5.3(A) shall
be cumulative from the Class C Deemed Original Issue Date of such
unit.
Class
C Redemption:
As
defined in Section 9.1(C) hereof.
Class
C Redemption Price:
As
defined in Section 9.1(C) hereof.
Class
C Unit:
The
Partnership Interest held by the Class C Limited Partner, each full Class C
Unit
representing a $2,500 Capital Contribution.
Class
F Distribution Date:
Each
dividend payment date for the Series F Preferred Shares.
Class
F Limited Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, in its capacity as a
limited partner in the Partnership holding Class F Units.
Class
F Priority Return Amount:
With
respect to each Class F Unit, that portion of the Capital Contribution of the
Class F Limited Partner, allocable to each such unit, multiplied by the Dividend
Rate in effect for the Series F Preferred Shares, in each case during the period
with respect to which the Class F Priority Return Amount is to be
determined.
Class
F Redemption:
As
defined in Section 9.1(D) hereof.
Class
F Redemption Price:
As
defined in Section 9.1(D) hereof.
Class
F Unit: The
Partnership Interest held by the Class F Limited Partner, each full Class F
Unit
representing a $100,000 Capital Contribution.
Class
G Distribution Date:
Each
dividend payment date for the Series G Preferred Shares.
Class
G Limited Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, in its capacity as a
limited partner in the Partnership holding Class G Units.
Class
G Priority Return Amount:
With
respect to each Class G Unit, that portion of the Capital Contribution of the
Class G Limited Partner, allocable to each such unit, multiplied by the Dividend
Rate in effect for the Series G Preferred Shares, in each case during the period
with respect to which the Class G Priority Return Amount is to be
determined.
Class
G Redemption:
As
defined in Section 9.1(E) hereof.
Class
G Redemption Price:
As
defined in Section 9.1(E) hereof.
-4-
Class
G Unit: The
Partnership Interest held by the Class G Limited Partner, each full Class G
Unit
representing a $100,000 Capital Contribution.
Class
I Distribution Date:
Each
dividend payment date for the Series I Preferred Shares.
Class
I Limited Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, in its capacity as a
limited partner in the Partnership holding Class I Units.
Class
I Priority Return Amount:
With
respect to each Class I Unit, that portion of the Capital Contribution of the
Class I Limited Partner, allocable to each such unit, multiplied by the Dividend
Rate in effect for the Series I Preferred Shares, in each case during the period
with respect to which the Class I Priority Return Amount is to be
determined.
Class
I Redemption:
As
defined in Section 9.1(F) hereof.
Class
I Redemption Price:
As
defined in Section 9.1(F) hereof.
Class
I Unit: The
Partnership Interest held by the Class I Limited Partner, each full Class I
Unit
representing a $250,000 Capital Contribution.
Class
J Distribution Date:
Each
dividend payment date for the Series J Preferred Shares.
Class
J Limited Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, in its capacity as a
limited partner in the Partnership holding Class J Units.
Class
J Priority Return Amount:
With
respect to each Class J Unit, that portion of the Capital Contribution of the
Class J Limited Partner, allocable to each such unit, multiplied by the Dividend
Rate in effect for the Series J Preferred Shares, in each case during the period
with respect to which the Class J Priority Return Amount is to be
determined.
Class
J Redemption:
As
defined in Section 9.1(G) hereof.
Class
J Redemption Price:
As
defined in Section 9.1(G) hereof.
Class
J Unit: The
Partnership Interest held by the Class J Limited Partner, each full Class J
Unit
representing a $250,000 Capital Contribution.
Code:
The
Internal Revenue Code of 1986, as amended from time to time.
Consent:
Either
the written consent of a Person or the affirmative vote of such Person at a
meeting duly called and held pursuant to this Agreement, as the case may be,
to
do the act or thing for which the consent is required or solicited, or the
act
of granting such consent, as the context may require.
Contributed
Property:
Each
property or other asset (excluding cash and cash equivalents) contributed or
deemed contributed to the Partnership.
Contribution
Agreements:
Those
certain agreements among one or more of the Initial Limited Partners (or Persons
in which such Initial Limited Partners have direct or indirect interests) and
the Partnership pursuant to which, inter
alia,
the
Initial Limited Partners (or such Persons), directly or indirectly, are
contributing property to the Partnership on the Effective Date in exchange
for
Partnership Units.
-5-
Contributor
Partner(s):
That or
those Limited Partner(s) listed as Contributor Partner(s) on Exhibit
1D
attached
hereto and made a part hereof, as such Exhibit may be amended from time to
time
by the General Partner, whether by express amendment to this Partnership
Agreement or by execution of a written instrument by and between any additional
Contributor Partner(s) being affected thereby and the General Partner, acting
on
behalf of the Partnership and without the prior consent of the Limited Partners
(whether or not Contributor Partners other than the Contributor Partner(s)
being
affected thereby). For purposes hereof, any successor, assignee, or transferee
of the Interest of a Contributor Partner (other than the Partnership in
connection with a redemption pursuant to Article IX hereof) shall be considered
a Contributor Partner for purposes hereof.
Conversion
Factor:
The
factor applied for converting Partnership Units to REIT Shares, which shall
initially be 1.0; provided,
however,
in the
event that the REIT (i) declares or pays a dividend on its outstanding REIT
Shares in REIT Shares or makes a distribution to all holders of its outstanding
REIT Shares in REIT Shares, (ii) subdivides its outstanding REIT Shares or
(iii)
combines its outstanding REIT Shares into a smaller number of REIT Shares,
the
Conversion Factor shall be adjusted by multiplying the Conversion Factor by
a
fraction, the numerator of which shall be the number of REIT Shares issued
and
outstanding on the record date (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time), and
the
denominator of which shall be the actual number of REIT Shares (determined
without the above assumption) issued and outstanding on the record date for
such
dividend, distribution, subdivision or combination; provided,
further,
in the
event that the Partnership (a) declares or pays a distribution on the
outstanding Partnership Units in Partnership Units or makes a distribution
to
all Partners in Partnership Units, (b) subdivides the outstanding Partnership
Units or (c) combines the outstanding Partnership Units into a smaller number
of
Partnership Units, the Conversion Factor shall be adjusted by multiplying the
Conversion Factor by a fraction, the numerator of which shall be the actual
number of Partnership Units issued and outstanding on the record date
(determined without giving effect to such dividend, distribution, subdivision
or
combination), and the denominator of which shall be the actual number of
Partnership Units (determined after giving effect to such dividend,
distribution, subdivision or combination) issued and outstanding on such record
date. Any adjustment to the Conversion Factor shall become effective immediately
after the effective date of such event retroactive to the record date, if any,
for such event.
Depreciation:
For each
Fiscal Year or other period, an amount equal to the depreciation, amortization
or other cost recovery deduction allowable with respect to an asset for such
year or other period, except that if the Book Value of an asset differs from
its
adjusted basis for federal income tax purposes at the beginning of such year
or
other period, Depreciation shall be adjusted as necessary so as to be an amount
which bears the same ratio to such beginning Book Value as the federal income
tax depreciation, amortization, or other cost recovery deduction for such year
or other period bears to the beginning adjusted tax basis; provided,
however,
that if
the federal income tax depreciation, amortization or other cost recovery
deduction for such year or other period is zero, Depreciation for such year
or
other period shall be determined with reference to such beginning Book Value
using any reasonable method approved by the General Partner.
Distributable
Cash:
With
respect to any period, and without duplication:
(i) all
cash
receipts of the Partnership during such period from all sources;
(ii) less
all cash
disbursements of the Partnership during such period, including, without
limitation, disbursements for operating expenses, taxes, debt service
(including, without limitation, the payment of principal, premium and interest),
redemption of Partnership Interests and capital expenditures;
(iii) less
amounts
added to reserves in the sole discretion of the General Partner, plus
amounts
withdrawn from reserves in the reasonable discretion of the General
Partner.
Effective
Date:
June 30,
1994.
-6-
ERISA:
The
Employee Retirement Income Security Act of 1976, as amended from time to
time.
First
Highland Limited Partners:
Those
Limited Partners identified on Exhibit
1A
hereto.
First
Highland Properties:
Those
certain properties acquired by the Partnership pursuant to that certain
Contribution Agreement, dated as of March 19, 1996.
First
Highland Units:
The
Partnership Units issued to the First Highland Limited Partners in connection
with the acquisition of the First Highland Properties by the
Partnership.
Fiscal
Year:
The
calendar year or in the event of a termination of the Partnership pursuant
to
Code Section 708, an appropriate portion of such year.
General
Partner:
First
Industrial Realty Trust, Inc., a Maryland corporation, and its respective
successor(s) who or which become Successor General Partner(s) in accordance
with
the terms of this Agreement.
General
Partner Interest:
A
Partnership Interest held by the General Partner including both its General
Partner and Limited Partner Interests. A General Partner Interest may be
expressed as a number of Partnership Units.
Involuntary
Withdrawal:
As to
any (i) individual shall mean such individual’s death, incapacity or
adjudication of incompetence, (ii) corporation shall mean its dissolution or
revocation of its charter (unless such revocation is promptly corrected upon
notice thereof), (iii) partnership shall mean the dissolution and commencement
of winding up of its affairs, (iv) trust shall mean the termination of the
trust
(but not the substitution of trustees), (v) estate shall mean the distribution
by the fiduciary of the estate’s complete interest in the Partnership and (vi)
any Partner shall mean the Bankruptcy of such Partner.
IRS:
The
Internal Revenue Service, which administers the internal revenue laws of the
United States.
LB
Closing Date:
January
31, 1997.
LB
Partners:
The
persons identified on Exhibit
1C
hereto,
following their admission to the Partnership as Additional Limited
Partners.
LB
Units:
The
Partnership Units issued to the LB Partners in connection with the acquisition
by the Partnership of certain properties on the LB Closing Date.
Limited
Partner:
Those
Persons listed as such on Exhibit
1B
attached
hereto and made a part hereof, as such Exhibit may be amended from time to
time,
including any Person who becomes a Substituted Limited Partner or an Additional
Limited Partner in accordance with the terms of this Agreement; provided such
term shall not include the Class C Limited Partner, the Class F Limited Partner,
the Class G Limited Partner, the Class I Limited Partner or the Class J Limited
Partner.
Limited
Partner Interest:
A
Partnership Interest held by a Limited Partner that is a limited partner
interest. A Limited Partner Interest may be expressed as a number of Partnership
Units.
Nonrecourse
Liability:
A
liability as defined in Treasury Regulations Section 1.704-2(b)(3).
Notice:
A
writing containing the information required by this Agreement to be communicated
to a Person and delivered to such Person in accordance with Section 12.4;
provided,
however,
that
any written communication containing such information actually received by
such
Person shall constitute Notice for all purposes of this Agreement.
-7-
Partner
Minimum Gain:
The gain
(regardless of character) which would be realized by the Partnership if property
of the Partnership subject to a partner nonrecourse debt (as such term is
defined in Treasury Regulations Section 1.704-2(b)(4)) were disposed of in
full
satisfaction of such debt on the relevant date. The adjusted basis of property
subject to more than one partner nonrecourse debt shall be allocated in a manner
consistent with the allocation of basis for purposes of determining Partnership
Minimum Gain hereunder. Partner Minimum Gain shall be computed hereunder using
the Book Value, rather than the adjusted tax basis, of the Partnership property
in accordance with Treasury Regulations Section 1.704-2(d)(3).
Partner
Nonrecourse Deductions:
With
respect to any partner nonrecourse debt (as such term is defined in Treasury
Regulations Section 1.704-2(b)(4)), the increase in Partner Minimum Gain during
the tax year plus any increase in Partner Minimum Gain for a prior tax year
which has not previously generated a Partner Nonrecourse Deduction hereunder.
The determination of which Partnership items constitute Partner Nonrecourse
Deductions shall be made in a manner consistent with the manner in which
Partnership Nonrecourse Deductions are determined hereunder.
Partners:
The
General Partner, the Class C Limited Partner, the Class F Limited Partner,
the
Class G Limited Partner, the Class I Limited Partner and the Limited Partners
as
a group. The term “Partner” shall mean a General Partner, the Class C Limited
Partner, the Class F Limited Partner, the Class G Limited Partner, the Class
I
Limited Partner, the Class J Limited Partner or a Limited Partner. Such terms
shall be deemed to include such other Persons who become Partners pursuant
to
the terms of this Agreement.
Partnership:
The
Delaware limited partnership referred to herein as First Industrial, L.P.,
as
such partnership may from time to time be constituted.
Partnership
Assets:
At any
particular time, any assets or property (tangible or intangible, choate or
inchoate, fixed or contingent) owned by the Partnership.
Partnership
Interest or Interest:
As to
any Partner, such Partner’s ownership interest in the Partnership and including
such Partner’s right to distributions under this Agreement and any other rights
or benefits which such Partner has in the Partnership, together with any and
all
obligations of such Person to comply with the terms and provisions of this
Agreement. A Partnership Interest may be expressed as a number of Partnership
Units.
Partnership
Minimum Gain:
The
aggregate gain (regardless of character) which would be realized by the
Partnership if all of the property of the Partnership subject to nonrecourse
debt (other than partner nonrecourse debt as such term is defined in Treasury
Regulations Section 1.704-2(b)(4)) were disposed of in full satisfaction of
such
debt and for no other consideration on the relevant date. In the case of any
Nonrecourse Liability of the Partnership which is not secured by a mortgage
with
respect to any specific property of the Partnership, any and all property of
the
Partnership to which the holder of said liability has recourse shall be treated
as subject to such Nonrecourse Liability for purposes of the preceding sentence.
Partnership Minimum Gain shall be computed separately for each Nonrecourse
Liability of the Partnership. For this purpose, the adjusted basis of property
subject to two or more liabilities of equal priority shall be allocated among
such liabilities in proportion to the outstanding balance of such liabilities,
and the adjusted basis of property subject to two or more liabilities of unequal
priority shall be allocated to the liability of inferior priority only to the
extent of the excess, if any, of the adjusted basis of such property over the
outstanding balance of the liability of superior priority. Partnership Minimum
Gain shall be computed hereunder using the Book Value, rather than the adjusted
tax basis, of the Partnership property in accordance with Treasury Regulations
Section 1.704-2(d)(3).
Partnership
Nonrecourse Deductions:
The
amount of Partnership deductions equal to the increase, if any, in the amount
of
the aggregate Partnership Minimum Gain during the tax year (plus any increase
in
Partnership Minimum Gain for a prior tax year which has not previously generated
a Partnership Nonrecourse Deduction) reduced (but not below zero) by the
aggregate distributions made during the tax year of the proceeds of
a
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Nonrecourse
Liability of the Partnership which are attributable to an increase in
Partnership Minimum Gain within the meaning of Treasury Regulations Section
1.704-2(d). The Partnership Nonrecourse Deductions for a Partnership tax year
shall consist first of depreciation or cost recovery deductions with respect
to
each property of the Partnership giving rise to such increase in Partnership
Minimum Gain on a pro rata basis to the extent of each such increase, with
any
excess made up pro rata of all items of deduction.
Partnership
Unit:
A
fractional, undivided share of the Partnership Interests of all Partners (other
than the Class C Limited Partner, the Class F Limited Partner, the Class G
Limited Partner, the Class I Limited Partner and the Class J Limited Partner)
issued pursuant to Section 4.1 hereof.
Percentage
Interest:
As to
any Partner, the percentage in the Partnership, as determined by dividing the
Partnership Units then owned by such Partner by the total number of Partnership
Units then outstanding, as the same may be automatically adjusted from time
to
time to reflect the issuance and redemption of Partnership Units in accordance
with this Agreement, without requiring the amendment of Exhibit
1B
to
reflect any such issuance or redemption.
Person:
Any
individual, partnership, corporation, trust or other entity.
Profits
and Losses:
For each
Fiscal Year or other period, an amount equal to the Partnership’s taxable income
or loss (as the case may be) for such year or period, determined in accordance
with Code Section 703(a) (for this purpose, all items of income, gain, loss
or
deduction required to be stated separately pursuant to Code Section 703(a)(1)
shall be included in taxable income or loss), with the following
adjustments:
a. Any
income of the Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Profits or Losses pursuant to this
definition shall be added to such taxable income or loss;
b. Any
expenditures of the Partnership described in Code Section 705(a)(2)(B) or
treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Profits or Losses pursuant to this definition, shall be subtracted
from such taxable income or loss;
c. Gain
or
loss resulting from any disposition of Partnership property with respect to
which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Book Value of the property disposed of
notwithstanding that the adjusted tax basis of such property differs from such
Book Value;
d. In
lieu
of the depreciation, amortization, and other cost recovery deductions taken
into
account in computing such taxable income or loss, there shall be taken into
account Depreciation for such Fiscal Year or other period, computed in
accordance with the definition of “Depreciation” herein; and
e. In
the
event that any item of income, gain, loss or deduction that has been included
in
the initial computation of Profit or Loss is subject to the special allocation
rules of Sections 5.2(C), 5.2(D) and 5.2(I) through 5.2(L), Profit or Loss
shall
be recomputed without regard to such item.
Protected
Amount:
With
respect to any Contributor Partner, the amount set forth or otherwise described
opposite the name of such Contributor Partner on Exhibit
1D
attached
hereto and made a part hereof, as such Exhibit may be modified from time to
time
by an amendment to the Partnership Agreement or by execution of a written
instrument by and between the Contributor Partner being affected thereby and
the
General Partner, acting on behalf of the Partnership and without the prior
written consent of the Limited Partners (whether or not Contributor Partners
other than the Contributor Partner being affected thereby); provided,
however,
that no
Contributor Partner shall be
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considered
to have a Protected Amount from and following the first date upon which such
Partner is no longer a Partner of the Partnership.
Record
Date:
The
record date established by the General Partner for distributions pursuant to
Section 5.3 hereof, which record date shall be the same as the record date
established by the General Partner for a distribution to its stockholders of
some or all of its portion of such distribution.
Recourse
Liabilities:
The
amount of liabilities owed by the Partnership (other than nonrecourse
liabilities and liabilities to which Partner Nonrecourse Deductions are
attributable in accordance with Treasury Regulations Section
1.704-2(i)).
Redeeming
Party:
A
Limited Partner or Assignee (other than the General Partner) who tenders
Partnership Units for redemption pursuant to a Redemption Notice.
Redemption
Date:
The date
for redemption of Partnership Units as set forth in Section 9.2.
Redemption
Effective Date:
The
first date on which a Redeeming Party may elect to redeem Partnership Units,
which date shall be the later of (i) the first anniversary of the date such
Partnership Units are issued and (ii) the effective date of any registration
statement filed by the Partnership with respect to the REIT Shares to be issued
upon redemption of Partnership Units by a Redeeming Party.
Redemption
Notice:
A Notice
to the General Partner by a Redeeming Party, substantially in the form attached
as Exhibit 2,
pursuant to which the Redeeming Party requests the redemption of Partnership
Units in accordance with Article IX.
Redemption
Obligation:
The
obligation of the Partnership to redeem the Partnership Units as set forth
in
Section 9.1(A).
Redemption
Period:
The
45-day period immediately following the filing with the SEC by the General
Partner of an annual report of the General Partner on Form 10-K or a quarterly
report of the General Partner on Form 10-Q or such other period or periods
as
the General Partner may otherwise determine.
Redemption
Restriction:
A
restriction on the ability of the Partnership to redeem the Partnership Units
as
set forth in Section 9.1(A).
Registration
Rights Agreement:
A
Registration Rights Agreement, substantially in the form of Exhibit
3
hereto,
pursuant to which First Industrial will agree to register under the Securities
Act of 1933, as amended, REIT Shares issued in connection with Share Payments
made under Article IX hereof.
REIT:
A real
estate investment trust, as defined in Code Section 856.
REIT
Charter:
The
Articles of Incorporation of First Industrial filed with the Department of
Assessments and Taxation of the State of Maryland on August 10, 1993, as the
same may be amended or restated and in effect from time to time.
REIT
Share:
A share
of common stock representing an ownership interest in the General
Partner.
REIT
Share Rights:
Rights
to acquire additional REIT Shares issued to all holders of REIT Shares, whether
in the form of rights, options, warrants or convertible or exchangeable
securities, to the extent the same have been issued without additional
consideration after the initial acquisition of such REIT Shares.
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SEC:
The
Securities and Exchange Commission.
Series
C Preferred Shares:
8 5/8%
Series C Cumulative Preferred Stock of First Industrial Realty Trust,
Inc.
Series
F Preferred Shares:
Series F
Flexible Cumulative Redeemable Preferred Stock of First Industrial Realty Trust,
Inc.
Series
G Preferred Shares:
Series G
Flexible Cumulative Redeemable Preferred Stock of First Industrial Realty Trust,
Inc.
Series
I Preferred Shares:
Series I
Flexible Cumulative Redeemable Preferred Stock of First Industrial Realty Trust,
Inc.
Series
J Preferred Shares:
Series J
Cumulative Redeemable Preferred Stock of First Industrial Realty Trust,
Inc.
Share
Payment:
The
payment to a Redeeming Party of a number of REIT Shares determined by
multiplying (i) the number of Partnership Units tendered for redemption by
such
Redeeming Party pursuant to a validly proffered Redemption Notice by (ii) the
Conversion Factor. In the event the General Partner grants any REIT Share Rights
prior to such payment, any Share Payment shall include for the Redeeming Party
his ratable share of such REIT Share Rights other than REIT Share Rights which
have expired.
Subsidiary:
With
respect to any Person, any corporation or other entity of which a majority
of
(i) the voting power of the voting equity securities or (ii) the outstanding
equity interests is owned, directly or indirectly, by such Person.
Substituted
Limited Partner:
That
Person or those Persons admitted to the Partnership as substitute Limited
Partner(s), in accordance with the provisions of this Agreement. A Substituted
Limited Partner, upon his admission as such, shall succeed to the rights,
privileges and liabilities of his predecessor in interest as a Limited
Partner.
Successor
General Partner:
Any
Person who is admitted to the Partnership as substitute General Partner pursuant
to this Agreement. A Successor General Partner, upon its admission as such,
shall succeed to the rights, privileges and liabilities of its predecessor
in
interest as General Partner, in accordance with the provisions of the
Act.
Tax
Matters Partner:
The
General Partner or such other Partner who becomes Tax Matters Partner pursuant
to the terms of this Agreement.
Terminating
Capital Transaction:
The sale
or other disposition of all or substantially all of the Partnership Assets
or a
related series of transactions that, taken together, result in the sale or
other
disposition of all or substantially all of the Partnership Assets.
Threshold
Percentage:
A
percentage equal to 85% on the LB Closing Date and thereafter adjusted upwards
(but not downwards) immediately prior to each solicitation of any vote of,
or
the seeking of any consent, approval or waiver from, the Limited Partners
generally, to the sum of (i) 85% and (ii) the number of percentage points equal
to the positive difference, if any, between (a) the aggregate Percentage
Interest represented by the LB Units immediately following the LB Closing Date
and (b) the aggregate Percentage Interest represented by the LP Units
immediately prior to any such solicitation. For example, if on the LB Closing
Date the LB Units represent a 10% aggregate Percentage Interest, and if
immediately prior to a solicitation the Threshold Percentage is 85% and
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the
aggregate Percentage Interest represented by the LB Units is 8%, the Threshold
Percentage would be increased to 87% (85% + (10% - 8%)).
Transfer:
With
respect to any Partnership Unit shall mean a transaction in which a Partner
assigns his Partnership Interest to another Person and includes any sale,
assignment, gift, pledge, mortgage, exchange, hypothecation, encumbrance or
other disposition by law or otherwise; provided,
however,
the
redemption of any Partnership Interest pursuant to Article IX hereof shall
not
constitute a “Transfer” for purposes hereof.
Transfer
Restriction Date:
June 23,
1995.
Treasury
Regulations:
The
Income Tax Regulations promulgated under the Code, as such regulations may
be
amended from time to time (including corresponding provisions of succeeding
regulations).
Unit
Value:
With
respect to any Partnership Unit, the average of the daily market price for
a
REIT Share for the ten (10) consecutive trading days immediately preceding
the
date of receipt of a Redemption Notice by the General Partner multiplied by
the
Conversion Factor. If the REIT Shares are traded on a securities exchange or
the
NASDAQ-National Market System, the market price for each such trading day shall
be the reported last sale price on such day or, if no sales take place on such
day, the average of the closing bid and asked prices on such day. If the REIT
Shares are not traded on a securities exchange or the NASDAQ-National Market
System, the market price for each such trading day shall be determined by the
General Partner using any reasonable method of valuation. If a Share Payment
would include any REIT Share Rights, the value of such REIT Share Rights shall
be determined by the General Partner using any reasonable method of valuation,
taking into account the Unit Value determined hereunder and the factors used
to
make such determination and the value of such REIT Share Rights shall be
included in the Unit Value.
Voting
Termination Date:
The
first date after the LB Closing Date on which either (i) the General Partner
holds 90% or more of all Partnership Units or (ii) the aggregate number of
Partnership Units held by the General Partner and the LB Partners is less than
the product of the Threshold Percentage and the total number of Partnership
Units then outstanding.
Section
1.2 Rules
of Construction.
The
following rules of construction shall apply to this Agreement:
(A) All
section headings in this Agreement are for convenience of reference only and
are
not intended to qualify the meaning of any section.
(B) All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders, the singular shall
include the plural, and vice versa, as the context may require.
(C) Each
provision of this Agreement shall be considered severable from the rest, and
if
any provision of this Agreement or its application to any Person or
circumstances shall be held invalid and contrary to any existing or future
law
or unenforceable to any extent, the remainder of this Agreement and the
application of any other provision to any Person or circumstances shall not
be
affected thereby and shall be interpreted and enforced to the greatest extent
permitted by law so as to give effect to the original intent of the parties
hereto.
(D) Unless
otherwise specifically and expressly limited in the context, any reference
herein to a decision, determination, act, action, exercise of a right, power
or
privilege, or other procedure by the General Partner shall mean and refer to
the
decision, determination, act, action, exercise or other procedure by the General
Partner in its sole and absolute discretion.
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ARTICLE
II -
CONTINUATION
Section
2.1 Continuation.
The
Partners hereby continue the Partnership as a limited partnership under the
Act.
The General Partner shall take all action required by law to perfect and
maintain the Partnership as a limited partnership under the Act and under the
laws of all other jurisdictions in which the Partnership may elect to conduct
business, including but not limited to the filing of amendments to the
Certificate with the Delaware Secretary of State, and qualification of the
Partnership as a foreign limited partnership in the jurisdictions in which
such
qualification shall be required, as determined by the General Partner. The
General Partner shall also promptly register the Partnership under applicable
assumed or fictitious name statutes or similar laws.
Section
2.2 Name.
The
name of the Partnership is First Industrial, L.P. The General Partner may adopt
such assumed or fictitious names as it deems appropriate in connection with
the
qualifications and registrations referred to in Section 2.1.
Section
2.3 Place
of Business; Registered Agent.
The
principal office of the Partnership is located at 311 S. Wacker Drive, Suite
4000, Chicago, Illinois 60606, which office may be changed to such other place
as the General Partner may from time to time designate. The Partnership may
establish offices for the Partnership within or without the State of Delaware
as
may be determined by the General Partner. The initial registered agent for
the
Partnership in the State of Delaware is The Corporation Trust Company, whose
address is c/o Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
ARTICLE
III -
BUSINESS PURPOSE
Section
3.1 Business.
The
business of the Partnership shall be (i) conducting any business that may be
lawfully conducted by a limited partnership pursuant to the Act including,
without limitation, acquiring, owning, managing, developing, leasing, marketing,
operating and, if and when appropriate, selling, industrial properties, (ii)
entering into any partnership, joint venture or other relationship to engage
in
any of the foregoing or the ownership of interests in any entity engaged in
any
of the foregoing, (iii) making loans, guarantees, indemnities or other financial
accommodations and borrowing money and pledging its assets to secure the
repayment thereof, (iv) to do any of the foregoing with respect to any Affiliate
or Subsidiary and (v) doing anything necessary or incidental to the foregoing;
provided,
however,
that
business of the Partnership shall be limited so as to permit the General Partner
to elect and maintain its status as a REIT (unless the General Partner
determines no longer to qualify as a REIT).
Section
3.2 Authorized
Activities.
In
carrying out the purposes of the Partnership, but subject to all other
provisions of this Agreement, the Partnership is authorized to engage in any
kind of lawful activity, and perform and carry out contracts of any kind,
necessary or advisable in connection with the accomplishment of the purposes
and
business of the Partnership described herein and for the protection and benefit
of the Partnership; provided that the General Partner shall not be obligated
to
cause the Partnership to take, or refraining from taking, any action which,
in
the judgment of the General Partner, (i) could adversely affect the ability
of the General Partner to qualify and continue to qualify as a REIT,
(ii) could subject the General Partner to additional taxes under Code
Section 857 or 4981 or (iii) could violate any law or regulation of any
governmental body or agency having jurisdiction over the General Partner or
its
securities.
ARTICLE
IV -
CAPITAL CONTRIBUTIONS
Section
4.1 Capital
Contributions.
(A) Upon
the
contribution to the Partnership of property in accordance with a Contribution
Agreement, Partnership Units shall be issued in accordance with, and as
contemplated by, such Contribution Agreement, and the Persons receiving such
Partnership Units shall become Partners and shall be deemed to have made a
Capital Contribution as set forth on Exhibit 1.
Exhibit 1
also
sets forth the initial number of Partnership Units owned by each Partner and
the
Percentage Interest of each Partner, which Percentage Interest shall be adjusted
from time to time by the General Partner to reflect the issuance of additional
Partnership Units, the redemption of Partnership Units, additional Capital
Contributions and similar events having an effect on a Partner’s Percentage
Interest. Except as set forth in Section 4.2 (regarding issuance of additional
Partnership Units) or Section 7.6 (regarding withholding obligations), no
Partner shall be required under any circumstances to contribute to the capital
of the Partnership any amount beyond that sum required pursuant to this Article
IV.
(B) Anything
in the foregoing Section 4.1(A) or elsewhere in this Agreement notwithstanding,
the Partnership Units held by the General Partner shall, at all times, be deemed
to be General Partner units and shall constitute the General Partner
Interest.
Section
4.2 Additional
Partnership Interests.
(A) The
Partnership may issue additional limited partnership interests in the form
of
Partnership Units for any Partnership purpose at any time or from time to time,
to any Partner or other Person (other than the General Partner, except in
accordance with Section 4.2(B) below).
(B) The
Partnership also may from time to time issue to the General Partner additional
Partnership Units or other Partnership Interests in such classes and having
such
designations, preferences and relative rights (including preferences and rights
senior to the existing Limited Partner Interests) as shall be determined by
the
General Partner in accordance with the Act and governing law. Except as provided
in Article IX, any such issuance of Partnership Units or Partnership Interests
to the General Partner shall be conditioned upon (i) the undertaking by the
General Partner of a related issuance of its capital stock (with such shares
having designations, rights and preferences such that the economic rights of
the
holders of such capital stock are substantially similar to the rights of the
additional Partnership Interests issued to the General Partner) and the General
Partner making a Capital Contribution (a) in an amount equal to the net proceeds
raised in the issuance of such capital stock, in the event such capital stock
is
sold for cash or cash equivalents or (b) the property received in consideration
for such capital stock, in the event such capital stock is issued in
consideration for other property or (ii) the issuance by the General Partner
of
capital stock under any stock option or bonus plan and the General Partner
making a Capital Contribution in an amount equal to the exercise price of the
option exercised pursuant to such stock option or other bonus plan.
(C) Except
as
contemplated by Article IX (regarding redemptions) or Section 4.2(B), the
General Partner shall not issue any (i) additional REIT Shares, (ii) rights,
options or warrants containing the right to subscribe for or purchase REIT
Shares or (iii) securities convertible or exchangeable into REIT Shares
(collectively, “Additional REIT Securities”) other than to all holders of REIT
Shares, pro rata, unless (x) the Partnership issues to the General Partner
(i)
Partnership Interests, (ii) rights, options or warrants containing the right
to
subscribe for or purchase Partnership Interests or (iii) securities convertible
or exchangeable into Partnership Interests such that the General Partner
receives an economic interest in the Partnership substantially similar to the
economic interest in the General Partner represented by the Additional REIT
Securities and (y)
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the
General Partner contributes to the Partnership the net proceeds from, or the
property received in consideration for, the issuance of the Additional REIT
Securities and the exercise of any rights contained in any Additional REIT
Securities.
Section
4.3 No
Third Party Beneficiaries.
The
foregoing provisions of this Article IV are not intended to be for the
benefit of any creditor of the Partnership or other Person to whom any debts,
liabilities or obligations are owed by (or who otherwise has any claim against)
the Partnership or any of the Partners and no such creditor or other Person
shall obtain any right under any such foregoing provision against the
Partnership or any of the Partners by reason of any debt, liability or
obligation (or otherwise).
Section
4.4 Capital
Accounts.
(A) The
Partnership shall establish and maintain a separate Capital Account for each
Partner in accordance with Code Section 704 and Treasury Regulations Section
1.704-1(b)(2)(iv). The Capital Account of each Partner shall be credited
with:
(1) the
amount of all Capital Contributions made to the Partnership by such Partner
in
accordance with this Agreement; plus
(2) all
income and gain of the Partnership computed in accordance with this Section
4.4
and allocated to such Partner pursuant to Article V (including for purposes
of
this Section 4.4(A), income and gain exempt from tax);
and
shall
be debited with the sum of:
(1) all
losses or deductions of the Partnership computed in accordance with this Section
4.4 and allocated to such Partner pursuant to Article V,
(2) such
Partner’s distributive share of expenditures of the Partnership described in
Code Section 705(a)(2)(B), and
(3) all
cash
and the Agreed Value (reduced to take into account the amount of any related
indebtedness assumed by the Partner, or to which the distributed property is
subject) of any property actually distributed or deemed distributed by the
Partnership to such Partner pursuant to the terms of this
Agreement.
Any
reference in any section or subsection of this Agreement to the Capital Account
of a Partner shall be deemed to refer to such Capital Account as the same may
be
credited or debited from time to time as set forth above.
(B) For
purposes of computing the amount of any item of income, gain, deduction or
loss
to be reflected in the Partners’ Capital Accounts, the determination,
recognition and classification of each such item shall be the same as its
determination, recognition and classification for federal income tax purposes,
determined in accordance with Code Section 703(a) and accounting for those
adjustments set forth in the definition of Profits and Losses, with the
following additional adjustments:
(1) the
computation of all items of income, gain, loss and deduction shall be made
without regard to any Code Section 754 election that may be made by the
Partnership, except to the extent required in accordance with the provisions
of
Treasury Regulations Section 1.704-1(b)(2)(iv)(m); and
(2) in
the
event the Book Value of any Partnership Asset is adjusted pursuant to Section
4.4(D) below, the amount of such adjustment shall be treated as gain or loss
from the disposition of such asset.
(C) Any
transferee of a Partnership Interest shall succeed to a pro
rata
portion
of the transferor’s Capital Account transferred.
(D) Consistent
with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv)(f),
(i) immediately prior to the acquisition of an additional Partnership
Interest by any new or existing Partner in connection with the contribution
of
money or other property (other than a de
minimis
amount)
to the Partnership, (ii) immediately prior to the distribution by the
Partnership to a Partner of Partnership property (other than a de
minimis
amount)
as consideration for a Partnership Interest, (iii) immediately prior to the
liquidation of the Partnership as defined in Treasury Regulations Section
1.704-1(b)(2)(ii)(g) and (iv) immediately prior to any other event for which
the
Treasury Regulation Section 1.704-1(b)(2)(iv)(f) permits an adjustment to book
value, the Book Value of all Partnership Assets shall be revalued upward or
downward to reflect the fair market value of each such Partnership Asset as
determined by the General Partner using such reasonable method of valuation
as
it may adopt.
(E) The
foregoing provisions of this Section 4.4 are intended to comply with Treasury
Regulations Section 1.704-1(b) and shall be interpreted and applied in a manner
consistent with such Treasury Regulations. In the event the General Partner
shall determine that it is prudent to modify the manner in which the Partners’
Capital Accounts are computed hereunder in order to comply with such Treasury
Regulations, the General Partner may make such modification if such modification
is not likely to have a material effect on the amount distributable to any
Partner under the terms of this Agreement and the General Partner notifies
the
other Partners in writing of such modification prior to making such
modification.
Section
4.5 Return
of Capital Account; Interest.
Except
as otherwise specifically provided in this Agreement, (i) no Partner shall
have
any right to withdraw or reduce its Capital Contributions or Capital Account,
or
to demand and receive property other than cash from the Partnership in return
for its Capital Contributions or Capital Account; (ii) no Partner shall have
any
priority over any other Partners as to the return of its Capital Contributions
or Capital Account; (iii) any return of Capital Contributions or Capital
Accounts to the Partners shall be solely from the Partnership Assets, and no
Partner shall be personally liable for any such return; and (iv) no interest
shall be paid by the Partnership on Capital Contributions or on balances in
Partners’ Capital Accounts.
Section
4.6 Preemptive
Rights.
No
Person shall have any preemptive or similar rights with respect to the issuance
or sale of additional Partnership Units.
Section
4.7 REIT
Share Purchases.
If the
General Partner acquires additional REIT Shares pursuant to Article IX of the
REIT Charter, the Partnership shall purchase from the General Partner that
number of Partnership Units determined by applying the Conversion Multiple
to
the number of REIT Shares purchased by the General Partner at the same price
and
on the same terms as those upon which the General Partner purchased such REIT
Shares.
ARTICLE
V -
ALLOCATIONS AND DISTRIBUTIONS
Section
5.1 Limited
Liability.
For
bookkeeping purposes, the Profits of the Partnership shall be shared, and the
Losses of the Partnership shall be borne, by the Partners as provided in Section
5.2 below; provided,
however,
that
except as expressly provided in this Agreement, neither any Limited Partner
(in
its capacity as a Limited Partner), the Class C Limited Partner (in its capacity
as Class C Limited Partner), the Class F Limited Partner (in its capacity as
Class F Limited Partner), the Class G Limited Partner (in its capacity as Class
G Limited Partner), the Class I Limited Partner (in its capacity as Class I
Limited Partner) nor the Class J Limited Partner (in its capacity as Class
J
Limited Partner shall be personally liable for losses, costs, expenses,
liabilities or obligations of the Partnership in excess of its Capital
Contribution required under Article IV hereof.
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Section
5.2 Profits,
Losses and Distributive Shares.
(A) Profits.
After
giving effect to the special allocations, if any, provided in Section 5.2(C),
(D), (I), (J), (K) and (L), Profits in each Fiscal Year shall be allocated
in
the following order:
(1) First,
to
the General Partner until the cumulative Profits allocated to the General
Partner under this Section 5.2(A)(1), whether in the current or in any prior
Fiscal Year equal the cumulative Losses allocated to such Partner under Section
5.2(B)(6), whether in the current or in any prior Fiscal Year;
(2) Second,
to the Class C Limited Partner, Class F Limited Partner, Class G Limited
Partner, Class I Limited Partner and Class J Limited Partner, in proportion
to
the cumulative Losses allocated to each such Partner under Section 5.2(B)(5),
whether in the current or in any prior Fiscal Year until the cumulative Profits
allocated to each such Partner under this Section 5.2(A)(2) equal the cumulative
Losses allocated to each such Partner under Section 5.2(B)(5), whether in the
current or in any prior Fiscal Year;
(3) Third,
to
each Partner in proportion to the cumulative Losses allocated to such Partner
under Section 5.2(B)(4), whether in the current or in any prior Fiscal Year,
until the cumulative Profits allocated to such Partner under this Section
5.2(A)(3) equal the cumulative Losses allocated to such Partner under Section
5.2(B)(4), whether in the current or in any prior Fiscal Year;
(4) Fourth,
to the General Partner until the cumulative Profits allocated to the General
Partner under this Section 5.2(A)(4), whether in the current or in any prior
Fiscal Year equal the cumulative Losses allocated to such Partner under Section
5.2(B)(3), whether in the current or in any prior Fiscal Year;
(5) Fifth,
to
each Partner in proportion to the cumulative Losses allocated to such Partner
under Section 5.2(B)(2), whether in the current or in any prior Fiscal Year,
until the cumulative Profits allocated to such Partner under this Section
5.2(A)(5) equal the cumulative Losses allocated to such Partner under Section
5.2(B)(2), whether in the current or in any prior Fiscal Year;
(6) Sixth,
to
each Partner in proportion to the cumulative Losses allocated to such Partner
under Section 5.2(B)(1), whether in the current or in any prior Fiscal Year,
until the cumulative Profits allocated to such Partner under this Section
5.2(A)(6) equal the cumulative Losses allocated to such Partner under Section
5.2(B)(1), whether in the current or in any prior Fiscal Year; and
(7) Then,
the
balance, if any, to the Partners in proportion to their respective Percentage
Interests.
(B) Losses.
After
giving effect to the special allocations, if any, provided in Section 5.2(C),
(D), (I), (J), (K) and (L), Losses in each Fiscal Year shall be allocated in
the
following order of priority:
(1) First,
to
the Partners (other than the Class C Limited Partner, the Class F Limited
Partner, the Class G Limited Partner, the Class I Limited Partner and the Class
J Limited Partner), in proportion to their respective Percentage Interests,
but
not in excess of the positive Adjusted Capital Account balance of any Partner
prior to the allocation provided for in this Section 5.2(B)(1);
(2) Second,
to the Partners (other than the Class C Limited Partner, the Class F Limited
Partner, the Class G Limited Partner, the Class I Limited Partner and the Class
J Limited Partner) with positive Adjusted Capital Account balances prior to
the
allocation provided for in this Section 5.2(B)(2), in proportion to the amount
of such balances until all such balances are reduced to zero;
(3) Third,
to
the General Partner until (i) the excess of (a) the cumulative Losses allocated
under this Section 5.2(B)(3), whether in the current or in any prior Fiscal
Year, over (b) the cumulative Profits allocated under Section 5.2(A)(4), whether
in the current or in any prior Fiscal Year, equals (ii) the excess of (a) the
amount of Recourse Liabilities over (b) the Aggregate Protected
Amount;
(4) Fourth,
to and among the Contributor Partners, in accordance with their respective
Protected Amounts, until the excess of (a) the cumulative Losses allocated
under
this Section 5.2(B)(4), whether in the current or in any prior Fiscal Year,
over
(b) the
cumulative Profits allocated under 5.2(A)(3), whether in the current or in
any
prior Fiscal Year, equals the Aggregate Protected Amount (as of the close of
the
Fiscal Year to which such allocation relates);
(5) Fifth,
to
the Class C Limited Partner, the Class F Limited Partner, the Class G Limited
Partner, the Class I Limited Partner and the Class J Limited Partner, in
accordance with their respective Adjusted Capital Accounts, until their Adjusted
Capital Accounts are reduced to zero; and
(6) Thereafter,
to the General Partner;
provided,
however,
(i)
that, from and following the first Fiscal Year upon which a Contributor Partner
is no longer a Partner of the Partnership, the provisions of this Section 5.2(B)
shall be null, void and without further force and effect with respect to such
Contributor Partner; (ii) that this Section 5.2(B) shall control,
notwithstanding any reallocation or adjustment of taxable income, loss or other
items by the Internal Revenue Service or any other taxing authority;
provided,
however,
that
neither the Partnership nor the General Partner (nor any of their respective
affiliates) is required to indemnify any Contributor Partner (or its affiliates)
for the loss of any tax benefit resulting from any reallocation or adjustment
of
taxable income, loss or other items by the Internal Revenue Service or other
taxing authority; and (iii) that, during such period as there are Contributor
Partners in the Partnership, the provisions of Section 5.2(B)(4) shall not
be
amended in a manner which adversely affects the Contributor Partners (without
the consent of each Contributor Partner so affected).
(C) Special
Allocations.
Except
as otherwise provided in this Agreement, the following special allocations
will
be made in the following order and priority:
(1) Partnership
Minimum Gain Chargeback.
Notwithstanding any other provision of this Article V, if there is a net
decrease in Partnership Minimum Gain during any tax year or other period for
which allocations are made, each Partner will be specially allocated items
of
Partnership income and gain for that tax year or other period (and, if
necessary, subsequent periods) in an amount equal to such Partner’s share of the
net decrease in Partnership Minimum Gain during such tax year or other period
determined in accordance with Treasury Regulations Section 1.704-2(g).
Allocations pursuant to the preceding sentence shall be made in proportion
to
the respective amounts required to be allocated to each Partner pursuant
thereto. The items to be so allocated shall be determined in accordance with
Treasury Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section
5.2(C)(1) is intended to comply with the minimum gain chargeback requirements
set forth in Treasury Regulations Section 1.704-2(f) and shall be interpreted
consistently therewith, including the exceptions to the minimum gain chargeback
requirement set forth in Treasury Regulations Section 1.704-2(f) and (3). If
the
General Partner concludes, after consultation with tax counsel, that the
Partnership meets the requirements for a waiver of the minimum gain chargeback
requirement as set forth in Treasury Regulations Section 1.704-2(f)(4), the
General Partner may take steps reasonably necessary or appropriate in order
to
obtain such waiver.
(2) Partner
Nonrecourse Debt Minimum Gain Chargeback.
Notwithstanding any other provision of this Section (other than Section
5.2(C)(1) which shall be applied before this Section 5.2(C)(2)), if there is
a
net decrease in Partner Minimum Gain during any tax year or other period for
which allocations are made, each Partner with a share of Partner Minimum Gain
determined in accordance with Treasury Regulations Section 1.704-2(i)(5) shall
be specially allocated items of Partnership income and gain for that period
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(and,
if
necessary, subsequent periods) in an amount equal to such Partner’s share of the
net decrease in Partner Minimum Gain determined in accordance with Treasury
Regulations Section 1.704-2(i)(4). The items to be so allocated shall be
determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and
1.704-2(j)(2)(ii). This Section 5.2(C)(2) is intended to comply with the minimum
gain chargeback requirements of Treasury Regulations Section and shall be
interpreted consistently therewith, including the exceptions set forth in
Treasury Regulations Section 1.704-2(f)(2) and (3) to the extent such exceptions
apply to Treasury Regulations Sections 1.704-2(i)(4). If the General Partner
concludes, after consultation with tax counsel, that the Partnership meets
the
requirements for a waiver of the Partner Minimum Gain chargeback requirement
set
forth in Treasury Regulation 1.704-2(f), but only to the extent such exception
applies to Treasury Regulations Section 1.704-2(i)(4), the General Partner
may
take steps necessary or appropriate to obtain such waiver.
(3) Qualified
Income Offset.
A
Partner who unexpectedly receives any adjustment, allocation or distribution
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6)
will be specially allocated items of Partnership income and gain in an amount
and manner sufficient to eliminate, to the extent required by Treasury
Regulations 1.704-1(b)(2)(ii)(d), the Adjusted Capital Account Deficit of the
Partner as quickly as possible, provided that an allocation pursuant to this
Section 5.2(C)(3) shall be made if and only to the extent that such Partner
would have an Adjusted Capital Account Deficit after all other allocations
provided for in this Article V have been tentatively made as if this Section
5.2(C)(3) were not contained in this Agreement.
(4) Partnership
Nonrecourse Deductions.
Partnership Nonrecourse Deductions for any taxable year or other period for
which allocations are made will be allocated among the Partners in proportion
to
their respective Percentage Interests.
(5) Partner
Nonrecourse Deductions.
Notwithstanding anything to the contrary in this Agreement, any Partner
Nonrecourse Deductions for any taxable year or other period for which
allocations are made will be allocated to the Partner who bears the economic
risk of loss with respect to the liability to which the Partner Nonrecourse
Deductions are attributable in accordance with Treasury Regulations Section
1.704-2(i).
(6) Code
Section 754 Adjustments.
To the
extent an adjustment to the adjusted tax basis of any Partnership asset under
Code Section 734(b) or 743(b) is required to be taken into account in
determining Capital Accounts under Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(2) or (4), the amount of the adjustment to the Capital
Accounts will be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases the basis of the
asset), and the gain or loss will be specially allocated to the Partners in
a
manner consistent with the manner in which their Capital Accounts are required
to be adjusted under Treasury Regulations Section
1.704-1(b)(2)(iv)(m).
(7) Depreciation
Recapture.
In the
event there is any recapture of Depreciation or investment tax credit, the
allocation thereof shall be made among the Partners in the same proportion
as
the deduction for such Depreciation or investment tax credit was
allocated.
(8) Interest
in Partnership.
Notwithstanding any other provision of this Agreement, no allocation of Profit
or Loss (or item of Profit or Loss) will be made to a Partner if the allocation
would not have “economic effect” under Treasury Regulations Section
1.704-1(b)(2)(ii)(a) or otherwise would not be in accordance with the Partner’s
interest in the Partnership within the meaning of Treasury Regulations Section
1.704-1(b)(3).
(D) Curative
Allocations.
The
allocations set forth in Section 5.2(C)(1) through (8) (the “Regulatory
Allocations”) are intended to comply with certain requirements of Treasury
Regulations Sections 1.704-1(b) and 1.704-2. The Regulatory Allocations may
not
be consistent with the manner in which the Partners intend to divide Partnership
distributions. Accordingly, the General Partner is authorized to further
allocate Profits, Losses, and other items among the Partners in a reasonable
manner so as to prevent the
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Regulatory
Allocations from distorting the manner in which Partnership distributions would
be divided among the Partners under Section 5.3, but for application of the
Regulatory Allocations. In general, the reallocation will be accomplished by
specially allocating other Profits, Losses and items of income, gain, loss
and
deduction, to the extent they exist, among the Partners so that the net amount
of the Regulatory Allocations and the special allocations to each Partner is
zero. The General Partner may accomplish this result in any reasonable manner
that is consistent with Code Section 704 and the related Treasury
Regulations.
(E) Tax
Allocations.
(1) Except
as
otherwise provided in Section 5.2(E)(2), each item of income, gain, loss and
deduction shall be allocated for federal income tax purposes in the same manner
as each correlative item of income, gain, loss or deduction, is allocated for
book purposes pursuant to the provisions of Section 5.1 hereof.
(2) Notwithstanding
anything to the contrary in this Article V, in an attempt to eliminate any
Book-Tax Disparity with respect to a Contributed Property, items of income,
gain, loss or deduction with respect to each such property shall be allocated
for federal income tax purposes among the Partners as follows:
(a) Depreciation,
Amortization and Other Cost Recovery Items.
In the
case of each Contributed Property with a Book-Tax Disparity, any item of
depreciation, amortization or other cost recovery allowance attributable to
such
property shall be allocated as follows: (x) first, to Partners (the
“Non-Contributing Partners”) other than the Partners who contributed such
property to the Partnership (or are deemed to have contributed the property
pursuant to Section 4.1(A)) (the “Contributing Partners”) in an amount up to the
book allocation of such items made to the Non-Contributing Partners pursuant
to
Section 5.1 hereof, pro
rata
in
proportion to the respective amount of book items so allocated to the
Non-Contributing Partners pursuant to Section 5.1 hereof; and (y) any remaining
depreciation, amortization or other cost recovery allowance to the Contributing
Partners in proportion to their Percentage Interests. In no event shall the
total depreciation, amortization or other cost recovery allowance allocated
hereunder exceed the amount of the Partnership’s depreciation, amortization or
other cost recovery allowance with respect to such property.
(b) Gain
or Loss on Disposition.
In the
event the Partnership sells or otherwise disposes of a Contributed Property
with
a Book-Tax Disparity, any gain or loss recognized by the Partnership in
connection with such sale or other disposition shall be allocated among the
Partners as follows: (x) first, any gain or loss shall be allocated to the
Contributing Partners in proportion to their Percentage Interests to the extent
required to eliminate any Book-Tax Disparity with respect to such property;
and
(y) any remaining gain or loss shall be allocated among the Partners in the
same
manner that the correlative items of book gain or loss are allocated among
the
Partners pursuant to Section 5.1 hereof.
(3) In
the
event the Book Value of a Partnership Asset (including a Contributed Property)
is adjusted pursuant to Section 4.4(D) hereof, all items of income, gain, loss
or deduction in respect of such property shall be allocated for federal income
tax purposes among the Partners in the same manner as provided in Section
5.2(E)(2) hereof to take into account any variation between the fair market
value of the property, as determined by the General Partner using such
reasonable method of valuation as it may adopt, and the Book Value of such
property, both determined as of the date of such adjustment.
(4) The
General Partner shall have the authority to elect alternative methods to
eliminate the Book-Tax Disparity with respect to one or more Contributed
Properties, as permitted by Treasury Regulations Sections 1.704-3 and 1.704-3T,
and such election shall be binding on all of the Partners.
(5) The
Partners hereby intend that the allocation of tax items pursuant to this Section
5.2(E) comply with the requirements of Code Section 704(c) and Treasury
Regulations Sections 1.704-3 and 1.704-3T.
(6) The
allocation of items of income, gain, loss or deduction pursuant to this Section
5.2(E) are solely for federal, state and local income tax purposes, and the
Capital Account balances of the Partners shall be adjusted solely for
allocations of “book” items in respect of Partnership Assets pursuant to Section
5.1 hereof.
(F) Other
Allocation Rules.
The
following rules will apply to the calculation and allocation of Profits, Losses
and other items:
(1) Except
as
otherwise provided in this Agreement, all Profits, Losses and other items
allocated to the Partners will be allocated among them in proportion to their
Percentage Interests.
(2) For
purposes of determining the Profits, Losses or any other item allocable to
any
period, Profits, Losses and other items will be determined on a daily, monthly
or other basis, as determined by the General Partner using any permissible
method under Code Section 706 and the related Treasury Regulations.
(3) Except
as
otherwise provided in this Agreement, all items of Partnership income, gain,
loss and deduction, and other allocations not provided for in this Agreement
will be divided among the Partners in the same proportions as they share Profits
and Losses, provided that any credits shall be allocated in accordance with
Treasury Regulations Section 1.704-1(b)(4)(ii).
(4) For
purposes of Treasury Regulations Section 1.752-3(a), the Partners hereby agree
that any Nonrecourse Liabilities of the Partnership in excess of the sum of
(i)
the Partnership Minimum Gain and (ii) the aggregate amount of taxable gain
that
would be allocated to the Partners under Section 704(c) (or in the same manner
as Section 704(c) in connection with a revaluation of Partnership property)
if
the Partnership disposed of (in a taxable transaction) all Partnership property
subject to one or more Nonrecourse Liabilities of the Partnership in full
satisfaction of such Liabilities and for no other consideration, shall be
allocated among the Partners in accordance with their respective Partnership
Interests; provided that the General Partner shall have discretion in any Fiscal
Year to allocate such excess Nonrecourse Liabilities among the Partners (a)
in a
manner reasonably consistent with allocations (that have substantial economic
effect) of some other significant item of Partnership income or gain or (b)
in
accordance with the manner in which it is reasonably expected that the
deductions attributable to the excess Nonrecourse Liabilities will be
allocated.
(G) Partner
Acknowledgment.
The
Partners agree to be bound by the provisions of this Section 5.2 in reporting
their shares of Partnership income, gain, loss, deduction and credit for income
tax purposes.
(H) Regulatory
Compliance.
The
foregoing provisions of this Section 5.2 relating to the allocation of Profits,
Losses and other items for federal income tax purposes are intended to comply
with Treasury Regulations Sections 1.704-1(b), 1.704-2, 1.704-3 and 1.704-3T
and
shall be interpreted and applied in a manner consistent with such Treasury
Regulations.
(I) Class
C Priority Allocation.
The
holders of the Class C Units shall be allocated gross income such that, from
the
inception of the partnership through the end of the Fiscal Year to which the
allocation relates, including the year of liquidation of the Partnership in
accordance with Article X, the sum of all priority allocations pursuant to
this
Section 5.2(I) equals (or approaches as nearly as possible) the sum of all
Class
C Priority Return Amounts accrued through the end of the fiscal year to which
the allocation relates.
(J) Class
F Priority Allocation.
The
holders of Class F Units shall be allocated gross income such that, from the
inception of the partnership through the end of the fiscal year to which the
allocation relates, including the year of liquidation of the Partnership in
accordance with Article X, the sum of all priority allocations pursuant to
this
Section 5.2(J) equals (or approaches as nearly as possible) the sum of all
Class
F Priority Return Amounts accrued through the end of the fiscal year to which
the allocation relates.
(K) Class
G Priority Allocation.
The
holders of Class G Units shall be allocated gross income such that, from the
inception of the partnership through the end of the fiscal year to which the
allocation relates, including the year of liquidation of the Partnership in
accordance with Article X, the sum of all priority allocations pursuant to
this
Section 5.2(K) equals (or approaches as nearly as possible) the sum of all
Class
G Priority Return Amounts accrued through the end of the fiscal year to which
the allocation relates.
(L) Class
I Priority Allocation.
The
holders of Class I Units shall be allocated gross income such that, from the
inception of the partnership through the end of the fiscal year to which the
allocation relates, including the year of liquidation of the Partnership in
accordance with Article X, the sum of all priority allocations pursuant to
this
Section 5.2(L) equals (or approaches as nearly as possible) the sum of all
Class
I Priority Return Amounts accrued through the end of the fiscal year to which
the allocation relates.
(M) Class
J Priority Allocation.
The
holders of Class J Units shall be allocated gross income such that, from the
inception of the partnership through the end of the fiscal year to which the
allocation relates, including the year of liquidation of the Partnership in
accordance with Article X, the sum of all priority allocations pursuant to
this
Section 5.2(M) equals (or approaches as nearly as possible) the sum of all
Class
J Priority Return Amounts accrued through the end of the fiscal year to which
the allocation relates.
Section
5.3 Distributions.
(A) The
General Partner shall cause the Partnership to distribute to the holder of
each
Class C Unit an amount in cash equal to the cumulative undistributed Class
C
Priority Return Amount with respect to each such unit (provided that the amount
distributable pursuant to this Section 5.3(A) shall not be in excess of the
Distributable Cash) on March 31, June 30, September 30 and December 31 of each
year, commencing on September 30, 1997 (or in the case of a Class C Unit with
a
Class C Deemed Original Issue Date after September 30, 1997, on the first such
distribution date following the applicable Class C Deemed Original Issue Date);
provided that, if any such distribution date shall be a Saturday, Sunday or
day
on which banking institutions in the State of New York are authorized or
obligated by law to close, or a day which is declared a national or New York
State holiday (any of the foregoing, a “Non-business Day”), then such
distribution shall be made on the next succeeding day which is not a
Non-business Day. Class C Priority Return Amounts that are distributable with
respect to a period greater or less than a full Class C Distribution Period
shall be computed on the basis of a 360-day year consisting of 12 30-day
months.
(B) The
General Partner shall cause the Partnership to distribute to the holder of
each
Class F Unit an amount in cash equal to the cumulative undistributed Class
F
Priority Return Amount with respect to each such unit (provided that the amount
distributable pursuant to this section 5.3(B) shall not be in excess of the
Distributable Cash) on each Class F Distribution Date.
(C) The
General Partner shall cause the Partnership to distribute to the holder of
each
Class G Unit an amount in cash equal to the cumulative undistributed Class
G
Priority Return Amount with respect to each such unit (provided that the amount
distributable pursuant to this section 5.3(C) shall not be in excess of the
Distributable Cash) on each Class G Distribution Date.
(D) The
General Partner shall cause the Partnership to distribute to the holder of
each
Class I Unit an amount in cash equal to the cumulative undistributed Class
I
Priority Return Amount with
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respect
to each such unit (provided that the amount distributable pursuant to this
section 5.3(D) shall not be in excess of the Distributable Cash) on each Class
I
Distribution Date.
(E) The
General Partner shall cause the Partnership to distribute to the holder of
each
Class J Unit an amount in cash equal to the cumulative undistributed Class
J
Priority Return Amount with respect to each such unit (provided that the amount
distributable pursuant to this section 5.3(E) shall not be in excess of the
Distributable Cash) on each Class J Distribution Date.
(F) After
giving effect to Sections 5.3(A), (B), (C), (D) and (E), if applicable, the
General Partner shall have the authority to cause the Partnership to make
distributions from time to time as it determines, including without limitation,
distributions which are sufficient to enable the General Partner to (i) maintain
its status as a REIT, (ii) avoid the imposition of any tax under Code Section
857 and (iii) avoid the imposition of any excise tax under Code Section 4981.
Except as otherwise expressly set forth in this Section 5.3(F), all
Distributions pursuant to this Section 5.3 shall be made on a pari
passu
basis.
(G) Distributions
pursuant to Section 5.3(F) shall be made pro
rata
among
the Partners of record on the Record Date established by the General Partner
for
the distribution, in accordance with their respective Percentage Interests,
without regard to the length of time the record holder has been such except
that
the first distribution paid on Units issued after June 1, 1996 shall be pro
rated to reflect the actual portion of the period for which the distribution
is
being paid during which such Units were outstanding, or shall be in such other
amount or computed on such other basis as may be agreed by the General Partner
and the holders of such Units, provided that such other amount or the amount
so
computed, as applicable, may not exceed the aforementioned pro rated
amount.
(H) The
General Partner shall use its reasonable efforts to make distributions to the
Partners so as to preclude any distribution or portion thereof from being
treated as part of a sale of property to the Partnership by a Partner under
Section 707 of the Code or the Treasury Regulations thereunder; provided that
the General Partner and the Partnership shall not have liability to a Limited
Partner under any circumstances as a result of any distribution to a Partner
being so treated.
Section
5.4 Distribution
upon Redemption.
Notwithstanding any other provision hereof, proceeds of (i) a Class C
Redemption shall be distributed to the Class C Limited Partner in accordance
with Section 9.1(C), (ii) a Class F Redemption shall be distributed
to the Class F Limited Partner in accordance with Section 9.1(D), (iii) a Class
G Redemption shall be distributed to the Class G Limited Partner in accordance
with Section 9.1(E), (iv) a Class I Redemption shall be distributed to the
Class
I Limited Partner in accordance with Section 9.1(F) and (v) a Class J Redemption
shall be distributed to the Class J Limited Partner in accordance with Section
9.1(G).
Section
5.5 Distributions
upon Liquidation.
Notwithstanding any other provision hereof, proceeds of a Terminating Capital
Transaction shall be distributed to the Partners in accordance with Section
10.2.
Section
5.6 Amounts
Withheld.
All
amounts withheld pursuant to the Code or any provision of state or local tax
law
and Section 7.6 of this Agreement with respect to any allocation, payment or
distribution to the General Partner, the Class C Limited Partner, the Class
F
Limited Partner, the Class G Limited Partner, the Class I Limited Partner,
the
Class J Limited Partner, the Limited Partners or Assignees shall be treated
as
amounts distributed to such General Partner, the Class C Limited Partner, the
Class F Limited Partner, the Class G Limited Partner, the Class I Limited
Partner, the Class J Limited Partner, the Limited Partners or Assignees, as
applicable, pursuant to Section 5.3 of this Agreement.
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ARTICLE
VI -
PARTNERSHIP MANAGEMENT
Section
6.1 Management
and Control of Partnership Business.
(A) Except
as
otherwise expressly provided or limited by the provisions of this Agreement,
the
General Partner shall have full, exclusive and complete discretion to manage
the
business and affairs of the Partnership, to make all decisions affecting the
business and affairs of the Partnership and to take all such action as it deems
necessary or appropriate to accomplish the purposes of the Partnership as set
forth herein. Except as set forth in this Agreement, the Limited Partners shall
not have any authority, right, or power to bind the Partnership, or to manage,
or to participate in the management of the business and affairs of the
Partnership in any manner whatsoever. Such management shall in every respect
be
the full and complete responsibility of the General Partner alone as herein
provided.
(B) In
carrying out the purposes of the Partnership, the General Partner shall be
authorized to take all actions it deems necessary and appropriate to carry
on
the business of the Partnership. The Limited Partners, the Class C Limited
Partner, the Class F Limited Partner, the Class G Limited Partner, the Class
I
Limited Partner and the Class J Limited Partner, by execution hereof, agree
that
the General Partner is authorized to execute, deliver and perform any agreement
and/or transaction on behalf of the Partnership.
(C) The
General Partner and its Affiliates may acquire Limited Partner Interests from
Limited Partners who agree so to transfer Limited Partner Interests or from
the
Partnership in accordance with Section 4.2(A). Any Limited Partner Interest
acquired by the General Partner shall be converted into a General Partner
Interest. Upon acquisition of any Limited Partner Interest, any Affiliate of
the
General Partner shall have all the rights of a Limited Partner.
Section
6.2 No
Management by Limited Partners; Limitation of Liability.
(A) Neither
the Limited Partners, in their capacity as Limited Partners, the Class C Limited
Partner, in its capacity as Class C Limited Partner, the Class F Limited
Partner, in its capacity as Class F Limited Partner, the Class G Limited
Partner, in its capacity as Class G Limited Partner, the Class I Limited
Partner, in its capacity as Class I Limited Partner, nor the Class J Limited
Partner, in its capacity as Class J Limited Partner shall take part in the
day-to-day management, operation or control of the business and affairs of
the
Partnership or have any right, power, or authority to act for or on behalf
of or
to bind the Partnership or transact any business in the name of the Partnership.
Neither the Limited Partners, the Class C Limited Partner, in its capacity
as
Class C Limited Partner, the Class F Limited Partner, in its capacity as Class
F
Limited Partner, the Class G Limited Partner, in its capacity as Class G Limited
Partner, the Class I Limited Partner, in its capacity as Class I Limited
Partner, nor the Class J Limited Partner, in its capacity as Class J Limited
Partner, shall have any rights other than those specifically provided herein
or
granted by law where consistent with a valid provision hereof. Any approvals
rendered or withheld by the Limited Partners, the Class C Limited Partner,
the
Class F Limited Partner, the Class G Limited Partner, the Class I Limited
Partner or the Class J Limited Partner pursuant to this Agreement shall be
deemed as consultation with or advice to the General Partner in connection
with
the business of the Partnership and, in accordance with the Act, shall not
be
deemed as participation by the Limited Partners, the Class C Limited Partner,
the Class F Limited Partner, the Class G Limited Partner, the Class I Limited
Partner or the Class J Limited Partner in the business of the Partnership and
are not intended to create any inference that the Limited Partners, the Class
C
Limited Partner, the Class F Limited Partner, the Class G Limited Partner,
the
Class I Limited Partner or the Class J Limited Partner should be classified
as
general partners under the Act.
(B) Neither
the Limited Partner, the Class C Limited Partner, the Class F Limited Partner,
the Class G Limited Partner, the Class I Limited Partner nor the Class J Limited
Partner, shall have any liability under this Agreement except with respect
to
withholding under Section 7.6, in connection with a violation of any provision
of this Agreement by such Limited Partner, the Class C Limited Partner, the
Class F Limited Partner, the Class G Limited Partner, the Class I Limited
Partner or the Class J Limited Partner or as provided in the Act.
(C) The
General Partner shall not take any action which would subject a Limited Partner
(in its capacity as Limited Partner), the Class C Limited Partner (in its
capacity as Class C Limited Partner), the Class F Limited Partner (in its
capacity as Class F Limited Partner), the Class G Limited Partner (in its
capacity as Class G Limited Partner), the Class I Limited Partner (in its
capacity as Class I Limited Partner) or the Class J Limited Partner (in its
capacity as Class J Limited Partner) to liability as a general
partner.
Section
6.3 Limitations
on Partners.
(A) No
Partner or Affiliate of a Partner shall have any authority to perform (i) any
act in violation of any applicable law or regulation thereunder, (ii) any act
prohibited by Section 6.2(C), or (iii) any act which is required to be Consented
to or ratified pursuant to this Agreement without such Consent or
ratification.
(B) No
action
shall be taken by a Partner if it would cause the Partnership to be treated
as
an association taxable as a corporation for federal income tax purposes or,
without the consent of the General Partner, as a publicly-traded partnership
within the meaning of Section 7704 of the Code. A determination of whether
such
action will have the above described effect shall be based upon a declaratory
judgment or similar relief obtained from a court of competent jurisdiction,
a
favorable ruling from the IRS or the receipt of an opinion of
counsel.
Section
6.4 Business
with Affiliates.
(A) The
General Partner, in its discretion, may cause the Partnership to transact
business with any Partner or its Affiliates for goods or services reasonably
required in the conduct of the Partnership’s business; provided that any such
transaction shall be effected only on terms competitive with those that may
be
obtained in the marketplace from unaffiliated Persons. The foregoing proviso
shall not apply to transactions between the Partnership and its Subsidiaries.
In
addition, neither the General Partner nor any Affiliate of the General Partner
may sell, transfer or otherwise convey any property to, or purchase any property
from, the Partnership, except (i) on terms competitive with those that may
be
obtained in the marketplace from unaffiliated Persons or (ii) where the General
Partner determines, in its sole judgment, that such sale, transfer or conveyance
confers benefits on the General Partner or the Partnership in respect of matters
of tax or corporate or financial structure; provided,
in the
case of this clause (ii), such sale, transfer, or conveyance is not being
effected for the purpose of materially disadvantaging the Limited
Partners.
(B) In
furtherance of Section 6.4(A), the Partnership may lend or contribute to its
Subsidiaries on terms and conditions established by the General
Partner.
Section
6.5 Compensation;
Reimbursement of Expenses.
In
consideration for the General Partner’s services to the Partnership in its
capacity as General Partner, the Partnership shall pay on behalf of or reimburse
to the General Partner (i) all expenses of the General Partner incurred in
connection with the management of the business and affairs of the Partnership,
including all employee compensation of employees of the General Partner and
indemnity or other payments made pursuant to agreements entered into in
furtherance of the Partnership’s business, (ii) all amounts payable by the
General Partner under the Registration Rights Agreement and (iii) all general
and administrative expenses incurred by the General Partner. Except as otherwise
set forth in this
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Agreement,
the General Partner shall be fully and entirely reimbursed by the Partnership
for any and all direct and indirect costs and expenses incurred in connection
with the organization and continuation of the Partnership pursuant to this
Agreement. In addition, the General Partner shall be reimbursed for all expenses
incurred by the General Partner in connection with (i) the initial public
offering of REIT Shares by the General Partner and (ii) any other issuance
of
additional Partnership Interests or REIT Shares.
Section
6.6 Liability
for Acts and Omissions.
(A) The
General Partner shall not be liable, responsible or accountable in damages
or
otherwise to the Partnership or any of the other Partners for any act or
omission performed or omitted in good faith on behalf of the Partnership and
in
a manner reasonably believed to be (i) within the scope of the authority granted
by this Agreement and (ii) in the best interests of the Partnership or the
stockholders of the General Partner. In exercising its authority hereunder,
the
General Partner may, but shall not be under any obligation to, take into account
the tax consequences to any Partner of any action it undertakes on behalf of
the
Partnership. Neither the General Partner nor the Partnership shall have any
liability as a result of any income tax liability incurred by a Partner as
a
result of any action or inaction of the General Partner hereunder and, by their
execution of this Agreement, the Limited Partners acknowledge the
foregoing.
(B) Unless
otherwise prohibited hereunder, the General Partner shall be entitled to
exercise any of the powers granted to it and perform any of the duties required
of it under this Agreement directly or through any agent. The General Partner
shall not be responsible for any misconduct or negligence on the part of any
agent; provided that the General Partner selected or appointed such agent in
good faith.
The
General Partner acknowledges that it owes fiduciary duties both to its
stockholders and to the Limited Partners and it shall use its reasonable efforts
to discharge such duties to each; provided,
however,
that in
the event of a conflict between the interests of the stockholders of the General
Partner and the interests of the Limited Partners, the Limited Partners agree
that the General Partner shall discharge its fiduciary duties to the Limited
Partners by acting in the best interests of the General Partner’s stockholders.
Nothing contained in the preceding sentence shall be construed as entitling
the
General Partner to realize any profit or gain from any transaction between
the
General Partner and the Partnership (except in connection with a distribution
in
accordance with this Agreement), including from the lending of money by the
General Partner to the Partnership or the contribution of property by the
General Partner to the Partnership, it being understood that in any such
transaction the General Partner shall be entitled to cost recovery
only.
Section
6.7 Indemnification.
(A) The
Partnership shall indemnify the General Partner and each director, officer
and
stockholder of the General Partner and each Person (including any Affiliate)
designated as an agent by the General Partner in its reasonable discretion
(each, an “Indemnified Party”) to the fullest extent permitted under the Act
(including any procedures set forth therein regarding advancement of expenses
to
such Indemnified Party) from and against any and all losses, claims, damages,
liabilities, expenses (including reasonable attorneys’ fees), judgments, fines,
settlements and any other amounts arising out of or in connection with any
claims, demands, actions, suits or proceedings (civil, criminal or
administrative) relating to or resulting (directly or indirectly) from the
operations of the Partnership, in which such Indemnified Party becomes involved,
or reasonably believes it may become involved, as a result of the capacity
referred to above.
(B) The
Partnership shall have the authority to purchase and maintain such insurance
policies on behalf of the Indemnified Parties as the General Partner shall
determine, which policies may cover those liabilities the General Partner
reasonably believes may be incurred by an Indemnified Party in connection with
the operation of the business of the Partnership. The right to procure such
insurance on behalf of the
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Indemnified
Parties shall in no way mitigate or otherwise affect the right of any such
Indemnified Party to indemnification pursuant to Section 6.7(A)
hereof.
(C) The
provisions of this Section 6.7 are for the benefit of the Indemnified Parties,
their heirs, successors, assigns and administrators and shall not be deemed
to
create any rights in or benefit to any other Person.
ARTICLE
VII -
ADMINISTRATIVE, FINANCIAL AND TAX MATTERS
Section
7.1 Books
and Records.
The
General Partner shall maintain at the office of the Partnership full and
accurate books of the Partnership showing all receipts and expenditures, assets
and liabilities, profits and losses, names and current addresses of Partners,
and all other records necessary for recording the Partnership’s business and
affairs. Each Limited Partner shall have, upon written demand and at such
Limited Partner’s expense, the right to receive true and complete information
regarding Partnership matters to the extent required (and subject to the
limitations) under Delaware law.
Section
7.2 Annual
Audit and Accounting.
The
books and records of the Partnership shall be kept for financial and tax
reporting purposes on the accrual basis of accounting in accordance with
generally accepted accounting principles (“GAAP”). The accounts of the
Partnership shall be audited annually by a nationally recognized accounting
firm
of independent public accountants selected by the General Partner (the
“Independent Accountants”).
Section
7.3 Partnership
Funds.
The
General Partner shall have responsibility for the safekeeping and use of all
funds and assets of the Partnership, whether or not in its direct or indirect
possession or control. All funds of the Partnership not otherwise invested
shall
be deposited in one or more accounts maintained in such banking institutions
as
the General Partner shall determine, and withdrawals shall be made only in
the
regular course of Partnership business on such signatures as the General Partner
may from time to time determine.
Section
7.4 Reports
and Notices.
The
General Partner shall provide all Partners with the following reports no later
than the dates indicated or as soon thereafter as circumstances
permit:
(A) By
March
31 of each year, IRS Form 1065 and Schedule K-1, or similar forms as may be
required by the IRS, stating each Partner’s allocable share of income, gain,
loss, deduction or credit for the prior Fiscal Year;
(B) Within
ninety (90) days after the end of each of the first three (3) fiscal quarters,
as of the last day of the fiscal quarter, a report containing unaudited
financial statements of the Partnership, or of the General Partner if such
statements are prepared on a consolidated basis with the General Partner, and
such other information as may be legally required or determined to be
appropriate by the General Partner; and
(C) Within
one hundred twenty (120) days after the end of each Fiscal Year, as of the
close
of the Fiscal Year, an annual report containing audited financial statements
of
the Partnership, or of the General Partner if such statements are prepared
on a
consolidated basis with the General Partner, presented in accordance with GAAP
and certified by the Independent Accountants.
Section
7.5 Tax
Matters.
(A) The
General Partner shall be the Tax Matters Partner of the Partnership for federal
income tax matters pursuant to Code Section 6231(a)(7)(A). The Tax Matters
Partner is authorized and required
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to
represent the Partnership (at the expense of the Partnership) in connection
with
all examinations of the affairs of the Partnership by any federal, state, or
local tax authorities, including any resulting administrative and judicial
proceedings, and to expend funds of the Partnership for professional services
and costs associated therewith. The Tax Matters Partner shall deliver to the
Limited Partners within ten (10) business days of the receipt thereof a copy
of
any notice or other communication with respect to the Partnership received
from
the IRS (or other governmental tax authority), or any court, in each case with
respect to any administrative or judicial proceeding involving the Partnership.
The Partners agree to cooperate with each other in connection with the conduct
of all proceedings pursuant to this Section 7.5(A).
(B) The
Tax
Matters Partner shall receive no compensation for its services in such capacity.
If the Tax Matters Partner incurs any costs related to any tax audit,
declaration of any tax deficiency or any administrative proceeding or litigation
involving any Partnership tax matter, such amount shall be an expense of the
Partnership and the Tax Matters Partner shall be entitled to full reimbursement
therefor.
(C) The
General Partner shall cause to be prepared all federal, state and local income
tax returns required of the Partnership at the Partnership’s
expense.
(D) Except
as
set forth herein, the General Partner shall determine whether to make (and,
if
necessary, revoke) any tax election available to the Partnership under the
Code
or any state tax law; provided,
however,
upon
the request of any Partner, the General Partner shall make the election under
Code Section 754 and the Treasury Regulations promulgated thereunder. The
Partnership shall elect to deduct expenses, if any, incurred by it in organizing
the Partnership in accordance with the provisions of Code Section
709.
Section
7.6 Withholding.
Each
Partner hereby authorizes the Partnership to withhold from or pay to any taxing
authority on behalf of such Partner any tax that the General Partner determines
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Partner. Any amount paid to any taxing
authority which does not constitute a reduction in the amount otherwise
distributable to such Partner shall be treated as a loan from the Partnership
to
such Partner, which loan shall bear interest at the “prime rate” as published
from time to time in The
Wall Street Journal
plus two
(2) percentage points, and shall be repaid within ten (10) business days after
request for repayment from the General Partner. The obligation to repay any
such
loan shall be secured by such Partner’s Partnership Interest and each Partner
hereby grants the Partnership a security interest in his Partnership Interest
for the purposes set forth in this Section 7.6, this Section 7.6 being intended
to serve as a security agreement for purposes of the Uniform Commercial Code
with the General Partner having in respect hereof all of the remedies of a
secured party under the Uniform Commercial Code. Each Partner agrees to take
such reasonable actions as the General Partner may request to perfect and
continue the perfection of the security interest granted hereby. In the event
any Partner fails to repay any deemed loan pursuant to this Section 7.6 the
Partnership shall be entitled to avail itself of any rights and remedies it
may
have. Furthermore, upon the expiration of ten (10) business days after demand
for payment, the General Partner shall have the right, but not the obligation,
to make the payment to the Partnership on behalf of the defaulting Partner
and
thereupon be subrogated to the rights of the Partnership with respect to such
defaulting Partner.
ARTICLE
VIII -
TRANSFER OF PARTNERSHIP INTERESTS; ADMISSIONS OF PARTNERS
Section
8.1 Transfer
by General Partner.
The
General Partner may not voluntarily withdraw or Transfer all or any portion
of
its General Partner Interest. Notwithstanding the foregoing, the General Partner
may pledge its General Partner Interest in furtherance of the Partnership’s
business (including without limitation, in connection with a loan agreement
under which the Partnership is a borrower) without the consent of any
Partner.
Section
8.2 Obligations
of a Prior General Partner.
Upon an
Involuntary Withdrawal of the General Partner and the subsequent Transfer of
the
General Partner’s Interest, such General Partner shall (i) remain liable for all
obligations and liabilities (other than Partnership liabilities payable solely
from Partnership Assets) incurred by it as General Partner before the effective
date of such event and (ii) pay all costs associated with the admission of
its
Successor General Partner. However, such General Partner shall be free of and
held harmless by the Partnership against any obligation or liability incurred
on
account of the activities of the Partnership from and after the effective date
of such event, except as provided in this Agreement.
Section
8.3 Successor
General Partner.
A
successor to all of a General Partner’s General Partner Interest who is proposed
to be admitted to the Partnership as a Successor General Partner shall be
admitted as the General Partner, effective upon the Transfer. Any such
transferee shall carry on the business of the Partnership without dissolution.
In addition, the following conditions must be satisfied:
(A) The
Person shall have accepted and agreed to be bound by all the terms and
provisions of this Agreement by executing a counterpart thereof and such other
documents or instruments as may be required or appropriate in order to effect
the admission of such Person as a General Partner; and
(B) An
amendment to this Agreement evidencing the admission of such Person as a General
Partner shall have been executed by all General Partners and an amendment to
the
Certificate shall have been filed for recordation as required by the
Act.
(C) Any
consent required under Section 10.1(A) hereof shall have been
obtained.
Section
8.4 Restrictions
on Transfer and Withdrawal by Limited Partner.
(A) Subject
to the provisions of Section 8.4(D), no Limited Partner may Transfer all or
any
portion of his Partnership Interest without first obtaining the Consent of
the
General Partner, which Consent may be granted or withheld in the sole and
absolute discretion of the General Partner. Any such purported transfer
undertaken without such Consent shall be considered to be null and void
ab
initio
and
shall not be given effect. Each Limited Partner acknowledges that the General
Partner has agreed not to grant any such consent prior to the Transfer
Restriction Date.
(B) No
Limited Partner may withdraw from the Partnership other than as a result of
a
permitted Transfer (i.e.,
a
Transfer consented to as contemplated by clause (A) above or clause (D) below
or
a Transfer pursuant to clause (C) below) of all of his Partnership Units
pursuant to this Article VIII or pursuant to a redemption or exchange of all
of
his Partnership Units pursuant to Article IX. Upon the permitted Transfer or
redemption of all of a Limited Partner’s Partnership Units, such Limited Partner
shall cease to be a Limited Partner.
(C) Upon
the
Involuntary Withdrawal of any Limited Partner (which shall under no circumstance
cause the dissolution of the Partnership), the executor, administrator, trustee,
guardian, receiver or conservator of such Limited Partner’s estate shall become
a Substituted Limited Partner upon compliance with the provisions of Section
8.5(A)(1)-(3).
(D) Subject
to Section 8.4(E), a Limited Partner may Transfer, with the Consent of the
General Partner, all or a portion of his Partnership Units to (a) a parent
or
parents, spouse, natural or adopted descendant or descendants, spouse of such
a
descendant, or brother or sister, or a trust created by such Limited Partner
for
the benefit of such Limited Partner and/or any such person(s), of which trust
such Limited Partner or any such person(s) is a trustee, (b) a corporation
controlled by a Person or Persons named in (a) above, or (c) if the Limited
Partner is an entity, its beneficial owners, and the General Partner shall
grant
its Consent to any Transfer pursuant to this Section 8.4(D) unless such
Transfer, in the reasonable judgment of the General
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Partner,
would cause (or have the potential to cause) the General Partner to fail to
qualify for taxation as a REIT, in which case the General Partner shall have
the
absolute right to refuse to permit such Transfer, and any purported Transfer
in
violation of this Section 8.4(D) shall be null and void ab
initio.
(E) No
Transfer of Limited Partnership Units shall be made if such Transfer would
(i) in the opinion of Partnership counsel, cause the Partnership to be
terminated for federal income tax purposes or to be treated as an association
taxable as a corporation (rather than a partnership) for federal income tax
purposes; (ii) be effected through an “established securities market” or a
“secondary market (or the substantial equivalent thereof)” within the meaning of
Code Section 7704 and the Treasury Regulations thereunder, (iii) in the opinion
of Partnership counsel, violate the provisions of applicable securities laws;
(iv) violate the terms of (or result in a default or acceleration under) any
law, rule, regulation, agreement or commitment binding on the Partnership;
(v)
cause the Partnership to become, with respect to any employee benefit plan
subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3(14)
of ERISA) or a “disqualified person” (as defined in Section 4975(e) of the
Code); (vi) in the opinion of counsel to the Partnership, cause any portion
of
the underlying assets of the Partnership to constitute assets of any employee
benefit plan pursuant to Department of Labor Regulations Section 2510.3-101;
or
(vii) result in a deemed distribution to any Partner attributable to a failure
to meet the requirements of Treasury Regulations Section 1.752-2(d)(1), unless
such Partner consents thereto.
(F) Prior
to
the consummation of any Transfer under this Section 8.4, the transferor and/or
the transferee shall deliver to the General Partner such opinions, certificates
and other documents as the General Partner shall request in connection with
such
Transfer.
Section
8.5 Substituted
Limited Partner.
(A) No
transferee shall become a Substituted Limited Partner in place of his assignor
unless and until the following conditions have been satisfied:
(1) The
assignor and transferee file a Notice or other evidence of Transfer and such
other information reasonably required by the General Partner, including, without
limitation, names, addresses and telephone numbers of the assignor and
transferee;
(2) The
transferee executes, adopts and acknowledges this Agreement, or a counterpart
hereto, and such other documents as may be reasonably requested by the General
Partner, including without limitation, all documents necessary to comply with
applicable tax and/or securities rules and regulations;
(3) The
assignor or transferee pays all costs and fees incurred or charged by the
Partnership to effect the Transfer and substitution; and
(4) The
assignor or transferee obtains the written Consent of the General Partner,
which
may be given or withheld in its sole and absolute discretion.
(B) If
a
transferee of a Limited Partner does not become a Substituted Limited Partner
pursuant to Section 8.5(A), such transferee shall be an Assignee and shall
not
have any rights to require any information on account of the Partnership’s
business, to inspect the Partnership’s books or to vote or otherwise take part
in the affairs of the Partnership (such Partnership Units being deemed to have
been voted in the same proportion as all other Partnership Units held by Limited
Partners have been voted). Such Assignee shall be entitled, however, to all
the
rights of an assignee of a limited partnership interest under the Act. Any
Assignee wishing to Transfer the Partnership Units acquired shall be subject
to
the restrictions set forth in this Article VIII.
Section
8.6 Timing
and Effect of Transfers.
Unless
the General Partner agrees otherwise, Transfers under this Article VIII may
only
be made as of the first day of a fiscal quarter of the Partnership. Upon any
Transfer of a Partnership Interest in accordance with this Article VIII or
redemption of a Partnership Interest in accordance with Article IX, the
Partnership shall allocate all items of Profit and Loss between the assignor
Partner and the transferee Partner in accordance with Section 5.2(F)(2) hereof.
The assignor Partner shall have the right to receive all distributions as to
which the Record Date precedes the date of Transfer and the transferee Partner
shall have the right to receive all distributions thereafter.
Section
8.7 Additional
Limited Partners.
Other
than in accordance with the transactions specified in the Contribution
Agreements, after the initial execution of this Agreement and the admission
to
the Partnership of the Initial Limited Partners, any Person making a Capital
Contribution to the Partnership in accordance herewith shall be admitted as
an
Additional Limited Partner of the Partnership only (i) with the Consent of
the
General Partner and (ii) upon execution, adoption and acknowledgment of this
Agreement, or a counterpart hereto, and such other documents as may be
reasonably requested by the General Partner, including without limitation,
the
power of attorney required under Section 12.3. Upon satisfaction of the
foregoing requirements, such Person shall be admitted as an Additional Limited
Partner effective on the date upon which the name of such Person is recorded
on
the books of the Partnership.
Section
8.8 Amendment
of Agreement and Certificate.
Upon
any admission of a Person as a Partner to the Partnership, the General Partner
shall make any necessary amendment to this Agreement to reflect such admission
and, if required by the Act, to cause to be filed an amendment to the
Certificate.
ARTICLE
IX -
REDEMPTION
Section
9.1 Right
of Redemption.
(A) Subject
to any restriction on the General Partner, which restriction may arise as a
result of the REIT Charter, the laws governing the General Partner or otherwise
(a “Redemption Restriction”), beginning on the Redemption Effective Date, during
each Redemption Period each Redeeming Party shall have the right to require
the
Partnership to redeem all or a portion of the Partnership Units held by such
Redeeming Party by providing the General Partner with a Redemption Notice.
A
Limited Partner may invoke its rights under this Article IX with respect to
100
Partnership Units or an integral multiple thereof or all of the Partnership
Units held by such Limited Partner. Upon the General Partner’s receipt of a
Redemption Notice from a Redeeming Party, the Partnership shall be obligated
(subject to the existence of any Redemption Restriction) to redeem the
Partnership Units from such Redeeming Party (the “Redemption
Obligation”).
(B) Upon
receipt of a Redemption Notice from a Redeeming Party, the General Partner
shall
either (i) cause the Partnership to redeem the Partnership Units tendered in
the
Redemption Notice, (ii) assume the Redemption Obligation, as set forth in
Section 9.4 hereof, or (iii) provide written Notice to the Redeeming Party
of
each applicable Redemption Restriction.
(C) On
and
after June 6, 2007 at any time or from time to time, the Partnership may redeem
all or such other number of Class C Units (any such redemption, a “Class C
Redemption”) at a cash redemption price per Class C Unit equal to that portion
of the Capital Contribution of the Class C Limited Partner allocable to each
such unit, plus all accumulated and unpaid Class C Priority Return Amounts
to
the date of Class C Redemption (such price, the “Class C Redemption Price”).
Upon any Class C Redemption, an amount equal to the product of the Class C
Redemption Price and the number of Class C Units redeemed by the Partnership
shall be distributed by the Partnership to the Class C Limited
Partner.
(D) The
Partnership may redeem all or such other number of Class F Units (any such
redemption, a “Class F Redemption”) on any applicable date of redemption of any
Class F Preferred Shares, at a cash redemption price per Class F Unit equal
to
that portion of the Capital Contribution of the Class F Limited Partner
allocable to each such unit, plus all accumulated and unpaid Class F Priority
Return Amounts to the date of Class F Redemption (such price, the “Class F
Redemption Price”). Upon any Class F Redemption, an amount equal to the product
of the Class F Redemption Price and the number of Class F Units redeemed by
the
Partnership shall be distributed by the Partnership to the Class F Limited
Partner.
(E) The
Partnership may redeem all or such other number of Class G Units (any such
redemption, a “Class G Redemption”) on any applicable date of redemption of any
Class G Preferred Shares, at a cash redemption price per Class G Unit equal
to
that portion of the Capital Contribution of the Class G Limited Partner
allocable to each such unit, plus all accumulated and unpaid Class G Priority
Return Amounts to the date of Class G Redemption (such price, the “Class G
Redemption Price”). Upon any Class G Redemption, an amount equal to the product
of the Class G Redemption Price and the number of Class G Units redeemed by
the
Partnership shall be distributed by the Partnership to the Class G Limited
Partner.
(F) The
Partnership may redeem all or such other number of Class I Units (any such
redemption, a “Class I Redemption”) on any applicable date of redemption of any
Class I Preferred Shares, at a cash redemption price per Class I Unit equal
to
that portion of the Capital Contribution of the Class I Limited Partner
allocable to each such unit multiplied by the redemption premium then applicable
to the Class I Preferred Shares, plus all accumulated and unpaid Class I
Priority Return Amounts to the date of Class I Redemption (such price, the
“Class I Redemption Price”). Upon any Class I Redemption, an amount equal to the
product of the Class I Redemption Price and the number of Class I Units redeemed
by the Partnership shall be distributed by the Partnership to the Class I
Limited Partner.
(G) The
Partnership may redeem all or such other number of Class J Units (any such
redemption, a “Class J Redemption”) on any applicable date of redemption of any
Class J Preferred Shares, at a cash redemption price per Class J Unit equal
to
that portion of the Capital Contribution of the Class J Limited Partner
allocable to each such unit multiplied by the redemption premium then applicable
to the Class J Preferred Shares, plus all accumulated and unpaid Class J
Priority Return Amounts to the date of Class J Redemption (such price, the
“Class J Redemption Price”). Upon any Class J Redemption, an amount equal to the
product of the Class J Redemption Price and the number of Class J Units redeemed
by the Partnership shall be distributed by the Partnership to the Class J
Limited Partner.
Section
9.2 Timing
of Redemption.
The
Redemption Obligation (or the obligation to provide Notice of an applicable
Redemption Restriction, if one exists) shall mature on the date which is seven
(7) business days after the receipt by the General Partner of a Redemption
Notice from the Redeeming Party (the “Redemption Date”).
Section
9.3 Redemption
Price.
On or
before the Redemption Date, the Partnership (or the General Partner if it elects
pursuant to Section 9.4 hereof) shall deliver to the Redeeming Party, in the
sole and absolute discretion of the General Partner either (i) a Share Payment
or (ii) a Cash Payment. In order to enable the Partnership to effect a
redemption by making a Share Payment pursuant to this Section 9.3, the General
Partner in its sole and absolute discretion may issue to the Partnership the
number of REIT Shares required to make such Share Payment in exchange for the
issuance to the General Partner of Partnership Units equal in number to the
quotient of the number of REIT Shares issued and Conversion Factor.
Section
9.4 Assumption
of Redemption Obligation.
Upon
receipt of a Redemption Notice, the General Partner, in its sole and absolute
discretion, shall have the right to assume the Redemption Obligation of the
Partnership. In such case, the General Partner shall be substituted for the
Partnership for all purposes of this Article IX and, upon acquisition of the
Partnership Units tendered by the Redeeming Party pursuant to the Redemption
-23-
Notice
shall be treated for all purposes of this Agreement as the owner of such
Partnership Units. Such exchange transaction shall be treated for federal income
tax purposes by the Partnership, the General Partner and the Redeeming Party
as
a sale by the Redeeming Party as seller to the General Partner as
purchaser.
Section
9.5 Further
Assurances; Certain Representations.
Each
party to this Agreement agrees to execute any documents deemed reasonably
necessary by the General Partner to evidence the issuance of any Share Payment
to a Redeeming Party. Notwithstanding anything herein to the contrary, each
holder of First Highland Units agrees that, if the General Partner shall elect
to satisfy a Redemption Obligation with respect to First Highland Units by
making a Share Payment, such Redemption Obligation shall mature on the date
which is seven (7) business days after receipt by the Partnership and the
General Partner of documents similar to the “Investor Materials” submitted in
connection with the sale of the First Highland Properties to the Partnership
and
any other similar documents reasonably required by, and in form reasonably
satisfactory to, the Partnership. Each Limited Partner, by executing this
Agreement, shall be deemed to have represented to the General Partner and the
Partnership that (i) its acquisition of its Partnership Interest on the date
hereof is made as a principal for its own account, for investment purposes
only
and not with a view to the resale or distribution of such Partnership Interest
and (ii) if it shall receive REIT Shares pursuant to this Article IX other
than
pursuant to an effective registration statement under the Securities Act of
1933, as amended, that its acquisition of such REIT Shares is made as a
principal for its own account, for investment purposes only and not with a
view
to the resale or distribution of such REIT Shares and agrees that such REIT
Shares may bear a legend to the effect that such REIT Shares have not been
so
registered and may not be sold other than pursuant to such a registration
statement or an exemption from the registration requirements of such
Act.
Section
9.6 Effect
of Redemption.
Upon
the satisfaction of the Redemption Obligation by the Partnership or the General
Partner, as the case may be, the Redeeming Party shall have no further right
to
receive any Partnership distributions in respect of the Partnership Units so
redeemed and shall be deemed to have represented to the Partnership and the
General Partner that the Partnership Units tendered for redemption are not
subject to any liens, claims or encumbrances. Upon a Class C Redemption by
the
Partnership, the Class C Limited Partner shall have no further right to receive
any Partnership distributions or allocations in respect of the Class C Units
so
redeemed. Upon a Class F Redemption by the Partnership, the Class F Limited
Partner shall have no further right to receive any Partnership distributions
in
respect of the Class F Units so redeemed. Upon a Class G Redemption by the
Partnership, the Class G Limited Partner shall have no further right to receive
any Partnership distributions in respect of the Class G Units so redeemed.
Upon
a Class I Redemption by the Partnership, the Class I Limited Partner shall
have
no further right to receive any Partnership distributions in respect of the
Class I Units so redeemed. Upon a Class J Redemption by the Partnership, the
Class J Limited Partner shall have no further right to receive any Partnership
distributions in respect of the Class J Units so redeemed.
Section
9.7 Registration
Rights.
In the
event a Limited Partner receives REIT Shares in connection with a redemption
of
Partnership Units originally issued to Initial Limited Partners on June 30,
1994
pursuant to this Article IX, such Limited Partner shall be entitled to have
such
REIT Shares registered under the Securities Act of 1933, as amended, as provided
in the Registration Rights Agreement.
Section
9.8 Redemption
upon REIT Share Repurchases by the General Partner. If
the
General Partner acquires outstanding REIT Shares then the Partnership shall
redeem from the General Partner the General Partner’s interest in the
Partnership representing such acquired REIT Shares and pay to the General
Partner, in cash, an amount equal to the consideration, if any, paid by or
for
the account of the General Partner for the acquired REIT Shares. The Partnership
shall make such cash payment, if any, to the General Partner within three (3)
business days after the General Partner notifies the Partnership that the
General Partner is committed to acquiring REIT Shares and requests payment
under
this Section 9.8. Any REIT Shares acquired by the General Partner that are
thereafter disposed of by the General Partner (which term shall not include
cancellation) shall for the purposes of Sections 4.2(B) and (C), be deemed
issued at the time of such disposition.
-24-
ARTICLE
X -
DISSOLUTION AND LIQUIDATION
Section
10.1 Term
and Dissolution.
The
Partnership commenced as of November 23, 1993, and shall continue until December
31, 2092, at which time the Partnership shall dissolve or until dissolution
occurs prior to that date for any one of the following reasons:
(A) An
Involuntary Withdrawal or a voluntary withdrawal, even though in violation
of
this Agreement, of the General Partner unless, within ninety (90) days after
such event of withdrawal all the remaining Partners agree in writing to the
continuation of the Partnership and to the appointment of a Successor General
Partner;
(B) Entry
of
a decree of judicial dissolution of the Partnership under the Act;
or
(C) The
sale,
exchange or other disposition of all or substantially all of the Partnership
Assets.
Section
10.2 Liquidation
of Partnership Assets.
(A) Subject
to Section 10.2(E), in the event of dissolution pursuant to Section 10.1, the
Partnership shall continue solely for purposes of winding up the affairs of,
achieving a final termination of, and satisfaction of the creditors of, the
Partnership. The General Partner (or, if there is no General Partner remaining,
any Person elected by a majority in interest of the Limited Partners (the
“Liquidator”)) shall be responsible for oversight of the winding up and
dissolution of the Partnership. The Liquidator shall obtain a full accounting
of
the assets and liabilities of the Partnership and such Partnership Assets shall
be liquidated (including, at the discretion of the Liquidator, in exchange,
in
whole or in part, for REIT Shares) as promptly as the Liquidator is able to
do
so without any undue loss in value, with the proceeds therefrom applied and
distributed in the following order:
(1) First,
to
the discharge of Partnership debts and liabilities to creditors other than
Partners;
(2) Second,
to the discharge of Partnership debts and liabilities to the
Partners;
(3) Third,
after giving effect to all contributions, distributions, and allocations for
all
periods, to (i) the Class C Limited Partner in an amount equal to any unpaid
Class C Priority Return Amounts, (ii) the Class F Limited Partner in an amount
equal to any unpaid Class F Priority Return Amounts, (iii) the Class G
Limited Partner in an amount equal to any unpaid Class G Priority Return
Amounts, (iv) the Class I Limited Partner in an amount equal to any unpaid
Class
I Return Amounts and (v) the Class J Limited Partner in an amount equal to
any
unpaid Class J Return Amounts ; provided,
that if
the proceeds are inadequate to pay all of the unpaid Class C Priority Return
Amounts, the unpaid Class F Priority Return Amounts, the unpaid Class G Priority
Return Amounts, the unpaid Class I Priority Return Amounts and the unpaid Class
J Priority Return Amounts, such proceeds shall be distributed to the Class
C
Limited Partner, the Class F Limited Partner, the Class G Limited Partner,
the
Class I Limited Partner and the Class J Limited Partner pro
rata
based on
the unpaid Class C Priority Return Amounts, the unpaid Class F Priority Return
Amounts, the unpaid Class G Priority Return Amounts, the unpaid Class I Priority
Return Amounts and the unpaid Class J Priority Return Amounts;
(4) The
balance, if any, to the Partners in accordance with their positive Capital
Accounts after giving effect to all contributions, distributions and allocations
for all periods.
(B) In
accordance with Section 10.2(A), the Liquidator shall proceed without any
unnecessary delay to sell and otherwise liquidate the Partnership Assets;
provided,
however,
that if
the Liquidator shall determine that an immediate sale of part or all of the
Partnership Assets would cause undue loss to the Partners, the Liquidator may
defer the liquidation except (i) to the extent provided by the Act or (ii)
as
may be necessary to satisfy the debts and liabilities of the Partnership to
Persons other than the Partners.
(C) If,
in
the sole and absolute discretion of the Liquidator, there are Partnership Assets
that the Liquidator will not be able to liquidate, or if the liquidation of
such
assets would result in undue loss to the Partners, the Liquidator may distribute
such Partnership Assets to the Partners in-kind, in lieu of cash, as
tenants-in-common in accordance with the provisions of Section 10.2(A). The
foregoing notwithstanding, such in-kind distributions shall only be made if
in
the Liquidator’s good faith judgment that is in the best interest of the
Partners.
(D) Upon
the
complete liquidation and distribution of the Partnership Assets, the Partners
shall cease to be Partners of the Partnership, and the Liquidator shall execute,
acknowledge and cause to be filed all certificates and notices required by
law
to terminate the Partnership. Upon the dissolution of the Partnership pursuant
to Section 10.1, the Liquidator shall cause to be prepared, and shall furnish
to
each Partner, a statement setting forth the assets and liabilities of the
Partnership. Promptly following the complete liquidation and distribution of
the
Partnership Assets, the Liquidator shall furnish to each Partner a statement
showing the manner in which the Partnership Assets were liquidated and
distributed.
(E) Notwithstanding
the foregoing provisions of this Section 10.2, in the event that the Partnership
shall dissolve as a result of the expiration of the term provided for herein
or
as a result of the occurrence of an event of the type described in Section
10.1(B) or (C), then each Limited Partner shall be deemed to have delivered
a
Redemption Notice on the date of such dissolution. In connection with each
such
Redemption Notice, the General Partner shall have the option of either (i)
complying with the redemption procedures contained in Article IX or (ii) at
the
request of any Limited Partner, delivering to such Limited Partner, Partnership
property approximately equal in value to the value of such Limited Partner’s
Partnership Units upon the assumption by such Limited Partner of such Limited
Partner’s proportionate share of the Partnership’s liabilities and payment by
such Limited Partner (or the Partnership) of any excess (or deficiency) of
the
value of the property so delivered over the value of such Limited Partner’s
Partnership Units. In lieu of requiring such Limited Partner to assume its
proportionate share of Partnership liabilities, the General Partner may deliver
to such Limited Partner unencumbered Partnership property approximately equal
in
value to the net value of such Limited Partner’s Partnership Units.
Section
10.3 Effect
of Treasury Regulations.
(A) In
the
event the Partnership is “liquidated” within the meaning of Treasury Regulations
Section 1.704-1(b)(2)(ii)(g), distributions made to Partners pursuant to Section
10.2 shall be made within the time period provided in Treasury Regulations
Section 1.704-1(b)(2)(ii)(b)(2). If any Contributor Partner has a deficit
balance in its Capital Account (after giving effect to all contributions
(without regard to this Section 10.3(A)), distributions and allocations), each
such Contributor Partner shall contribute to the capital of the Partnership
an
amount equal to its respective deficit balance, such obligation to be satisfied
within ninety (90) days following the liquidation and dissolution of the
Partnership in accordance with the provisions of this Article X hereof.
Conversely, if any Partner other than a Contributor Partner has a deficit
balance in its Capital Account (after giving effect to all contributions
(without regard to this Section 10.3(A)), distributions and allocations), such
Partner shall have no obligation to make any contribution to the capital of
the
Partnership. Any deficit restoration obligation pursuant to the provisions
hereof shall be for the benefit of creditors of the Partnership or any other
Person to whom any debts, liabilities, or obligations are owed by (or who
otherwise has any claim against) the Partnership or the general partner, in
its
capacity as General Partner of the Partnership. For purposes of computing each
Contributor Partner’s deficit balance in its Capital Account and its
-25-
corresponding
obligations to contribute additional capital to the Partnership, only items
of
income, gain and loss actually recognized shall be reflected.
(B) In
the
event the Partnership is “liquidated” within the meaning of Treasury Regulations
Section 1.704-1(b)(2)(ii)(g) but there has been no dissolution of the
Partnership under Section 10.1 hereof, then the Partnership Assets shall not
be
liquidated, the Partnership’s liabilities shall not be paid or discharged and
the Partnership’s affairs shall not be wound up. In the event of such a
liquidation there shall be deemed to have been a distribution of Partnership
Assets in kind to the Partners in accordance with Section 10.2 followed by
a
recontribution of such Partnership Assets by the Partners in the same
proportions.
Section
10.4 Time
for Winding-Up.
Anything in this Article X notwithstanding, a reasonable time shall be allowed
for the orderly winding-up of the business and affairs of the Partnership and
the liquidation of the Partnership Assets in order to minimize any potential
for
losses as a result of such process. During the period of winding-up, this
Agreement shall remain in full force and effect and shall govern the rights
and
relationships of the Partners inter
se.
ARTICLE
XI -
AMENDMENTS AND MEETINGS
Section
11.1 Amendment
Procedure.
(A) Amendments
to this Agreement may be proposed by the General Partner. An amendment proposed
at any time when the General Partner holds less than 90% of all Partnership
Units will be adopted and effective only if it receives the Consent of the
holders of a majority of the Partnership Units not then held by the General
Partner and an amendment proposed at any time when the General Partner holds
90%
or more of all Partnership Units may be made by the General Partner without
the
Consent of any Limited Partner; provided,
however,
no
amendment shall be adopted if it would (i) convert a Limited Partner’s Interest
in the Partnership into a general partner interest, (ii) increase the liability
of a Limited Partner under this Agreement, (iii) except as otherwise permitted
in this Agreement, alter the Partner’s rights to distributions set forth in
Article V, or the allocations set forth in Article V, (iv) alter or modify
any
aspect of the Partners’ rights with respect to redemption of Partnership Units,
(v) cause the early termination of the Partnership (other than pursuant to
the
terms hereof) or (vi) amend this Section 11.1(A), in each case without the
Consent of each Partner adversely affected thereby. In connection with any
proposed amendment of this Agreement requiring Consent, the General Partner
shall either call a meeting to solicit the vote of the Partners or seek the
written vote of the Partners to such amendment. In the case of a request for
a
written vote, the General Partner shall be authorized to impose such reasonable
time limitations for response, but in no event less than ten (10) days, with
the
failure to respond being deemed a vote consistent with the vote of the General
Partner.
(B) Notwithstanding
the foregoing, amendments may be made to this Agreement by the General Partner,
without the Consent of any Limited Partner, to (i) add to the representations,
duties or obligations of the General Partner or surrender any right or power
granted to the General Partner herein; (ii) cure any ambiguity, correct or
supplement any provision herein which may be inconsistent with any other
provision herein or make any other provisions with respect to matters or
questions arising hereunder which will not be inconsistent with any other
provision hereof; (iii) reflect the admission, substitution, termination or
withdrawal of Partners in accordance with this Agreement; or (iv) satisfy any
requirements, conditions or guidelines contained in any order, directive,
opinion, ruling or regulation of a federal or state agency or contained in
federal or state law. The General Partner shall reasonably promptly notify
the
Limited Partners whenever it exercises its authority pursuant to this Section
11.1(B).
(C) Within
ten (10) days of the making of any proposal to amend this Agreement, the General
Partner shall give all Partners Notice of such proposal (along with the text
of
the proposed amendment and a statement of its purposes).
Section
11.2 Meetings
and Voting.
(A) Meetings
of Partners may be called by the General Partner. The General Partner shall
give
all Partners Notice of the purpose of such proposed meeting not less than seven
(7) days nor more than thirty (30) days prior to the date of the meeting.
Meetings shall be held at a reasonable time and place selected by the General
Partner. Whenever the vote or Consent of Partners is permitted or required
hereunder, such vote or Consent shall be requested by the General Partner and
may be given by the Partners in the same manner as set forth for a vote with
respect to an amendment to this Agreement in Section 11.1(A).
(B) Any
action required or permitted to be taken at a meeting of the Partners may be
taken without a meeting if a written consent setting forth the action to be
taken is signed by the Partners owning Percentage Interests required to vote
in
favor of such action, which consent may be evidenced in one or more instruments.
Consents need not be solicited from any other Partner if the written consent
of
a sufficient number of Partners has been obtained to take the action for which
such solicitation was required.
(C) Each
Limited Partner may authorize any Person or Persons, including without
limitation the General Partner, to act for him by proxy on all matters on which
a Limited Partner may participate. Every proxy (i) must be signed by the Limited
Partner or his attorney-in-fact, (ii) shall expire eleven (11) months from
the
date thereof unless the proxy provides otherwise and (iii) shall be revocable
at
the discretion of the Limited Partner granting such proxy.
Section
11.3 Voting
of LB Units.
On any
matter on which the Limited Partners shall be entitled to vote, consent or
grant
an approval or waiver, following the admissions of the LB Partners to the
Partnership as Additional Limited Partners and through the Voting Termination
Date, each holder of the LB Units shall be deemed (i) in connection with any
matter submitted to a vote, to have cast all votes attributable to such holder’s
LB Units in the same manner as the votes attributable to the Units held by
the
General Partner are cast on such matter, and (ii) in connection with any
consent, approval or waiver, to have taken the same action as the General
Partner shall have taken with respect to its Units in connection therewith.
If
the General Partner shall not have the right to vote, consent or grant an
approval or waiver on a matter, each holder of LB Units shall vote or act as
directed by the General Partner.
ARTICLE
XII -
MISCELLANEOUS PROVISIONS
Section
12.1 Title
to Property.
All
property owned by the Partnership, whether real or personal, tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and
no
Partner, individually, shall have any ownership of such property. The
Partnership may hold any of its assets in its own name or, in the name of its
nominee, which nominee may be one or more individuals, corporations,
partnerships, trusts or other entities.
Section
12.2 Other
Activities of Limited Partners.
Except
as expressly provided otherwise in this Agreement or in any other agreement
entered into by a Limited Partner or any Affiliate of a Limited Partner and
the
Partnership, the General Partner or any Subsidiary of the Partnership or the
General Partner, any Limited Partner or any Affiliate of any Limited Partner
may
engage in, or possess an interest in, other business ventures of every nature
and description, independently or with others, including, without limitation,
real estate business ventures, whether or not such other enterprises shall
be in
competition with any activities of the Partnership, the General Partner or
any
-26-
Subsidiary
of the Partnership or the General Partner; and neither the Partnership, the
General Partner, any such Subsidiary nor the other Partners shall have any
right
by virtue of this Agreement in and to such independent ventures or to the income
or profits derived therefrom.
Section
12.3 Power
of Attorney.
(A) Each
Partner hereby irrevocably appoints and empowers the General Partner (which
term
shall include the Liquidator, in the event of a liquidation, for purposes of
this Section 12.3) and each of their authorized officers and attorneys-in-fact
with full power of substitution as his true and lawful agent and
attorney-in-fact, with full power and authority in his name, place and stead
to:
(1) make,
execute, acknowledge, publish and file in the appropriate public offices (a)
any
duly approved amendments to the Certificate pursuant to the Act and to the
laws
of any state in which such documents are required to be filed; (b) any
certificates, instruments or documents as may be required by, or may be
appropriate under, the laws of any state or other jurisdiction in which the
Partnership is doing or intends to do business; (c) any other instrument which
may be required to be filed by the Partnership under the laws of any state
or by
any governmental agency, or which the General Partner deems advisable to file;
(d) any documents which may be required to effect the continuation of the
Partnership, the admission, withdrawal or substitution of any Partner pursuant
to Article VIII, dissolution and termination of the Partnership pursuant to
Article X, or the surrender of any rights or the assumption of any additional
responsibilities by the General Partner; (e) any document which may be required
to effect an amendment to this Agreement to correct any mistake, omission or
inconsistency, or to cure any ambiguity herein, to the extent such amendment
is
permitted by Section 11.1(B); and (f) all instruments (including this Agreement
and amendments and restatements hereof) relating to the determination of the
rights, preferences and privileges of any class or series of Partnership Units
issued pursuant to Section 4.2(B) of this Agreement; and
(2) sign,
execute, swear to and acknowledge all voting ballots, consents, approvals,
waivers, certificates and other instruments appropriate or necessary, in the
sole discretion of the General Partner, to make, evidence, give, confirm or
ratify any vote, consent, approval, agreement or other action which is made
or
given by the Partners hereunder or is consistent with the terms of this
Agreement and appropriate or necessary, in the sole discretion of the General
Partner, to effectuate the terms or intent of this Agreement.
(B) Nothing
herein contained shall be construed as authorizing the General Partner to amend
this Agreement except in accordance with Article XI or as may be otherwise
expressly provided for in this Agreement.
(C) The
foregoing grant of authority (i) is a special power of attorney, coupled with
an
interest, and it shall survive the Involuntary Withdrawal of any Partner and
shall extend to such Partner’s heirs, successors, assigns and personal
representatives; (ii) may be exercised by the General Partner for each and
every
Partner acting as attorney-in-fact for each and every Partner; and (iii) shall
survive the Transfer by a Limited Partner of all or any portion of its Interest
and shall be fully binding upon such transferee; except that the power of
attorney shall survive such assignment with respect to the assignor Limited
Partner for the sole purpose of enabling the General Partner to execute,
acknowledge and file any instrument necessary to effect the admission of the
transferee as a Substitute Limited Partner. Each Partner hereby agrees to be
bound by any representations made by the General Partner, acting in good faith
pursuant to such power of attorney. Each Partner shall execute and deliver
to
the General Partner, within fifteen (15) days after receipt of the General
Partner’s request therefor, such further designations, powers of attorney and
other instruments as the General Partner deems necessary to effectuate this
Agreement and the purposes of the Partnership.
(D) Each
LB
Partner hereby irrevocably appoints and empowers the General Partner and the
Liquidator, in the event of a liquidation, and each of their authorized officers
and attorneys-in-fact with full power of substitution, as the true and lawful
agent and attorney-in-fact of such LB Partner with full power and
-27-
authority
in the name, place and stead of such LB Partner to take such actions (including
waivers under the Partnership Agreement) or refrain from taking such action
as
the General Partner reasonably believes are necessary or desirable to achieve
the purposes of Section 11.3 of the Partnership Agreement.
Section
12.4 Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery, (i) if to a Limited
Partner, at the most current address given by such Limited Partner to the
General Partner by means of a notice given in accordance with the provisions
of
this Section 12.4, which address initially is the address contained in the
records of the General Partner, or (ii) if to the General Partner, 311 S. Wacker
Drive, Suite 4000, Chicago, Illinois 60606, Attn: President.
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if hand delivered; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; or when receipt is acknowledged, if telecopied.
Section
12.5 Further
Assurances.
The
parties agree to execute and deliver all such documents, provide all such
information and take or refrain from taking any action as may be necessary
or
desirable to achieve the purposes of this Agreement and the
Partnership.
Section
12.6 Titles
and Captions.
All
article or section titles or captions in this Agreement are solely for
convenience and shall not be deemed to be part of this Agreement or otherwise
define, limit or extend the scope or intent of any provision
hereof.
Section
12.7 Applicable
Law.
This
Agreement, and the application or interpretation thereof, shall be governed
exclusively by its terms and by the law of the State of Delaware, without regard
to its principles of conflicts of laws.
Section
12.8 Binding
Agreement.
This
Agreement shall be binding upon the parties hereto, their heirs, executors,
personal representatives, successors and assigns.
Section
12.9 Waiver
of Partition.
Each of
the parties hereto irrevocably waives during the term of the Partnership any
right that it may have to maintain any action for partition with respect to
any
property of the Partnership.
Section
12.10 Counterparts
and Effectiveness.
This
Agreement may be executed in several counterparts, which shall be treated as
originals for all purposes, and all so executed shall constitute one agreement,
binding on all of the parties hereto, notwithstanding that all the parties
are
not signatory to the original or the same counterpart. Any such counterpart
shall be admissible into evidence as an original hereof against each Person
who
executed it. The execution of this Agreement and delivery thereof by facsimile
shall be sufficient for all purposes, and shall be binding upon any party who
so
executes.
Section
12.11 Survival
of Representations.
All
representations and warranties herein shall survive the dissolution and final
liquidation of the Partnership.
Section
12.12 Entire
Agreement.
This
Agreement (and all Exhibits hereto) contains the entire understanding among
the
parties hereto and supersedes all prior written or oral agreements among them
respecting the within subject matter, unless otherwise provided herein. There
are no representations, agreements, arrangements or understandings, oral or
written, among the Partners hereto relating to the subject matter of this
Agreement which are not fully expressed herein and in said
Exhibits.
-28-
IN
WITNESS WHEREOF,
this
Agreement has been duly executed and delivered by the parties hereto as of
the
day and year first above written.
|
General
Partner:
|
FIRST
INDUSTRIAL REALTY TRUST INC.,
as
sole General Partner of the Partnership
|
|
By: /s/
John H. Clayton
|
|
|
Class
J Limited Partner
|
FIRST
INDUSTRIAL REALTY TRUST, INC.,
as
Class J Limited Partner
|
|
By: /s/
John H. Clayton
|
-29-
Exhibit
1A
|
First
Highland Partners
|
Number
of Units
|
|||
|
Highland
Associates Limited Partnership
|
69,039
|
|||
|
Peter
Murphy
|
56,184
|
|||
|
North
Star Associates Limited Partnership
|
19,333
|
|||
|
Peter
O’Connor
|
56,844
|
|||
|
Partridge
Road Associates Limited Partnership
|
2,751
|
|||
|
Shadeland
Associates Limited Partnership
|
42,976
|
|||
|
Ellen
Margaret Smith
|
1,000
|
|||
|
Joseph
Edward Smith
|
1,000
|
|||
|
Kevin
Smith
|
10,571
|
|||
|
Olivia
Jane Smith
|
1,000
|
|||
|
Jonathan
Stott
|
80,026
|
|||
Exhibit
1B
Schedule
of Partners
|
General
Partner
|
Number
of Units
|
|||
|
First
Industrial Realty Trust, Inc.
|
30,892,739
|
|||
|
Limited
Partners
|
Number
of Units
|
|||
|
Kerry
Acker
|
154
|
|||
|
Sanders
H. Acker
|
307
|
|||
|
Sterling
Alsip Trust DTD 8-1-89 Donald W. Schaumberger Trustee
|
794
|
|||
|
Charles
T. Andrews
|
754
|
|||
|
Daniel
R. Andrew TR of the Daniel R.
Andrew
Trust UA 12-29-92
|
137,489
|
|||
|
The
Arel Company
|
307
|
|||
|
William
J. Atkins
|
5,691
|
|||
|
E.
Donald Bafford
|
3,374
|
|||
|
William
Baloh
|
8,731
|
|||
|
Thomas
K. Barad & Jill E. Barad CO-TTEES of the
Thomas
K. Barad & Jill E. Barad Trust DTD 10-18-89
|
2,283
|
|||
|
Enid
Barden TTEE of the Enid Barden
Trust
DTD 6-28-95
|
56,082
|
|||
|
Enid
Barden TTEE of the Enid Barden
Trust
of 6-28-96
|
23,088
|
|||
|
Barbara
Bell
|
58,019
|
|||
|
Stephen
McNair Bell
|
58,020
|
|||
|
Emil
Billich
|
77
|
|||
|
Don
N. Blurton & Patricia H. Blurton Trustees UA DTD 4-11-96 Blurton 1996
Revocable Family Trust
|
598
|
|||
|
Harriett
Bonn TTEE UA DTD 3-5-97 FBO The Harriett Bonn
Revocable
Living Trust
|
24,804
|
|||
|
Michael
W. Brennan
|
3,806
|
|||
|
Helen
Brown
|
80,000
|
|||
|
Henry
D. Bullock & Terri D. Bullock &
Shawn
Stevenson TR of the Bullock
Childrens
Education Trust UA 12-20-94,
FBO
Benjamin Dure Bullock
|
4,620
|
|||
|
Henry
D. Bullock & Terri D. Bullock &
Shawn
Stevenson TR of the Bullock
Childrens
Education Trust UA 12-20-94,
FBO
Christine Laurel Bullock
|
4,620
|
|||
|
Edward
Burger
|
9,261
|
|||
|
Barbara
Lee O’Brien Burke
|
666
|
|||
|
Ernestine
Burstyn
|
5,007
|
|||
|
Calamer,
Inc.
|
1,233
|
|||
|
Perry
C. Caplan
|
1,388
|
|||
|
Carew
Corporation
|
13,650
|
|||
|
Magdalena
G. Castleman
|
307
|
|||
|
Charles
F. Downs & Mary Jane Downs TTEE
Charles
F. Downs Living Trust UA
DTD
12-06-04
|
754
|
|||
|
Cliffwood
Development Company
|
64,823
|
|||
|
Collins
Family Trust DTD 5-6-69 James Collins Trustee
|
100,000
|
|||
|
Kelly
Collins
|
11,116
|
|||
|
Michael
Collins
|
17,369
|
|||
|
Charles
S. Cook and Shelby H. Cook TEN ENT
|
634
|
|||
|
Cotswold
Properties
|
34,939
|
|||
|
Caroline
Atkins Coutret
|
5,845
|
-2-
|
David
Cleborn Crow
|
5,159
|
|||
|
Gretchen
Smith Crow
|
2,602
|
|||
|
Michael
G. Damone TR of the Michael G.
Damone
Trust UA 11-4-69
|
144,296
|
|||
|
Robert
L. Denton
|
6,286
|
|||
|
John
E. De B Blockey TR of the John E. De B Blockey Trust
|
8,653
|
|||
|
Henry
E. Dietz Trust UA 1-16-81
|
36,476
|
|||
|
Mark
X. DiSanto
|
14,844
|
|||
|
John
M. DiSanto
|
14,844
|
|||
|
Steven
Dizio & Helen Dizio JT TEN
|
12,358
|
|||
|
Nancy
L. Doane
|
2,429
|
|||
|
W.
Allen Doane
|
1,987
|
|||
|
Timothy
Donohue
|
100
|
|||
|
Darwin
B. Dosch
|
1,388
|
|||
|
Draizin
Family Partnership, L.P.
|
357,896
|
|||
|
Joseph
S. Dresner
|
149,531
|
|||
|
Milton
H. Dresner TR of the Milton H. Dresner Revocable Trust UA
10-22-76
|
149,531
|
|||
|
James
O’Neil Duffy, Jr.
|
513
|
|||
|
Martin
Eglow
|
330
|
|||
|
Rand
H. Falbaum
|
17,022
|
|||
|
Patricia
O’Brien Ferrell
|
666
|
|||
|
Rowena
Finke
|
154
|
|||
|
First
& Broadway Limited Partnership
|
18,203
|
|||
|
Fourbur
Family Co., L.P.
|
588,273
|
-3-
|
Ester
Fried
|
3,177
|
|||
|
Jack
Friedman TR of the Jack Friedman Revocable
Living
Trust UA 3-23-78
|
26,005
|
|||
|
Nancy
Gabel
|
14
|
|||
|
J.
Peter Gaffney
|
727
|
|||
|
Gerlach
Family Trust DTD 6-28-85 Stanley & Linda Gerlach
Trustees
|
874
|
|||
|
Martin
Goodstein
|
922
|
|||
|
Dennis
G. Goodwin and Jeannie L. Goodwin TEN ENT
|
6,166
|
|||
|
Jeffrey
L. Greenberg
|
330
|
|||
|
Stanley
Greenberg & Florence Greenberg JT TEN
|
307
|
|||
|
Thelma
C. Gretzinger Trust
|
450
|
|||
|
Stanley
Gruber
|
30,032
|
|||
|
Melissa
C. Gudim
|
24,028
|
|||
|
H.L.
Investors LLC
|
4,000
|
|||
|
H.P.
Family Group LLC
|
103,734
|
|||
|
H/Airport
Gp Inc.
|
1,433
|
|||
|
Clay
Hamlin & Lynn Hamlin JT TEN
|
15,159
|
|||
|
Turner
Harshaw
|
1,132
|
|||
|
Edwin
Hession & Cathleen Hession JT TEN
|
11,116
|
|||
|
Highland
Associates Limited Partnership
|
69,039
|
|||
|
Andrew
Holder
|
97
|
|||
|
Ruth
Holder
|
2,612
|
|||
|
Robert
W. Holman, Jr.
|
150,213
|
|||
|
Holman/Shidler
Investment Corporation
|
22,079
|
-4-
|
Robert
S. Hood Living Trust DTD 1-9-90 & amended 12-16-96 Robert S. Hood
Trustee
|
3,591
|
|||
|
Howard
Trust DTD 4-30-79 Howard F. Sklar Trustee
|
653
|
|||
|
Steven
B. Hoyt
|
150,000
|
|||
|
Jerry
Hymowitz
|
307
|
|||
|
Karen
L. Hymowitz
|
154
|
|||
|
IBS
Delaware Partners LP
|
2,708
|
|||
|
Seymour
Israel
|
15,016
|
|||
|
Frederick
K. Ito Trustee UA DTD 9-9-98 FBO The Frederick K. Ito Trust
|
1,940
|
|||
|
Frederick
K. Ito and June Y. Ito Trustees UA DTD 9-9-98 FBO The June Y. Ito
Trust
|
1,940
|
|||
|
JP
Trusts LLC
|
35,957
|
|||
|
Michael
W. Jenkins
|
460
|
|||
|
Jernie
Holdings Corp.
|
180,499
|
|||
|
Joan
R. Krieger TTEE of the Joan R. Krieger Revocable Trust
DTD
10-21-97
|
15,184
|
|||
|
John
E. DE B. Blockey TR of the
John
E. DE B. Blockey Trust
|
8,653
|
|||
|
Jane
Terrell Johnson
|
3,538
|
|||
|
Jeffrey
E. Johnson
|
809
|
|||
|
Johnson
Living Trust DTD 2-18-83 H. Stanton & Carol A. Johnson
Trustees
|
1,078
|
|||
|
Thomas
Johnson, Jr. and Sandra L. Johnson TEN ENT
|
2,142
|
|||
|
Martha
O’Brien Jones
|
665
|
|||
|
Charles
Mark Jordan
|
57
|
|||
|
Mary
Terrell Joseph
|
837
|
|||
|
Nourhan
Kailian
|
2,183
|
-5-
|
H.L.
Kaltenbacher, P.P. Kaltenbacher & J.K. Carr TTEES
of
the Joseph C. Kaltenbacher Credit Shelter TR
|
1,440
|
|||
|
Sarah
Katz
|
307
|
|||
|
Carol
F. Kaufman
|
166
|
|||
|
KEP
LLC
|
98,626
|
|||
|
Peter
Kepic
|
9,261
|
|||
|
Jack
Kindler
|
1,440
|
|||
|
Kirshner
Family Trust #1 DTD 4-8-76 Berton & Barbara Kirshner
Trustees
|
29,558
|
|||
|
Kirshner
Trust #4 FBO Todd Kirshner DTD 12-30-76 Berton Kirshner
Trustee
|
20,258
|
|||
|
Arthur
Kligman
|
307
|
|||
|
William
L. Kreiger, Jr.
|
3,374
|
|||
|
Babette
Kulka
|
330
|
|||
|
Jack
H. Kulka
|
330
|
|||
|
LP
Family Group LLC
|
102,249
|
|||
|
Paul
T. Lambert
|
39,816
|
|||
|
Chester
A. Latcham & Co.
|
1,793
|
|||
|
Constance
Lazarus
|
417,961
|
|||
|
Jerome
Lazarus
|
18,653
|
|||
|
Susan
Lebow
|
740
|
|||
|
Arron
Leifer
|
4,801
|
|||
|
Duane
Lund
|
617
|
|||
|
Barbara
Lusen
|
307
|
|||
|
William
J. Mallen Trust DTD 4-29-94 William J. Mallen Trustee
|
8,016
|
|||
|
Stephen
Mann
|
17
|
-6-
|
Manor
LLC
|
80,556
|
|||
|
R.
Craig Martin
|
754
|
|||
|
Mary
Jane Downs & Charles F. Downs TTEES
Mary
Jane Downs Living Trust UA DTD 12-06-04
|
754
|
|||
|
J.
Stanley Mattison
|
79
|
|||
|
Henry
E. Mawicke
|
636
|
|||
|
Richard
McClintock
|
623
|
|||
|
McElroy
Management Inc.
|
5,478
|
|||
|
Eileen
Millar
|
3,072
|
|||
|
Linda
Miller
|
2,000
|
|||
|
Lila
Atkins Mulkey
|
7,327
|
|||
|
Peter
Murphy
|
56,184
|
|||
|
Anthony
Muscatello
|
81,654
|
|||
|
Ignatius
Musti
|
1,508
|
|||
|
New
Land Associates Limited Partnership
|
1,664
|
|||
|
Kris
Nielsen
|
178
|
|||
|
North
Star Associates Limited Partnership
|
19,333
|
|||
|
George
F. Obrecht
|
5,289
|
|||
|
Paul
F. Obrecht
|
4,455
|
|||
|
Richard
F. Obrecht
|
5,289
|
|||
|
Thomas
F. Obrecht
|
5,289
|
|||
|
Catherine
A. O’Brien
|
832
|
|||
|
Lee
O’Brien TTEE of the Martha J. Harbison
Testamentary
Trust FBO Christopher C. O’Brien
|
666
|
|||
|
Martha
E. O’Brien
|
832
|
-7-
|
Patricia
A. O’Brien
|
6,387
|
|||
|
Peter
O’Connor
|
56,844
|
|||
|
Steve
Ohren
|
33,366
|
|||
|
P&D
Partners LP
|
1,440
|
|||
|
Partridge
Road Associates
|
2,751
|
|||
|
Sybil
T. Patten
|
1,816
|
|||
|
PeeGee
L.P.
|
4,817
|
|||
|
Lawrence
Peters
|
960
|
|||
|
Jeffrey
Pion
|
2,879
|
|||
|
Pipkin
Family Trust DTD 10-6-89 Chester & Janice Pipkin Trustees
|
3,140
|
|||
|
Peter
M. Polow
|
557
|
|||
|
Keith
J. Pomeroy TTEE of Keith J. Pomeroy
Revocable
TR Agreement DTD 12-13-76 as
Amended
& Restated 6-28-95
|
104,954
|
|||
|
Princeton
South at Lawrenceville LLC
|
4,692
|
|||
|
Princeton
South at Lawrenceville One
|
4,265
|
|||
|
Swift
Terminal Properties
|
183,158
|
|||
|
Abraham
Punia
|
307
|
|||
|
RBZ
LLC
|
155
|
|||
|
R.E.A.
Associates
|
8,908
|
|||
|
RJB
Ford City Limited Partnership
|
158,438
|
|||
|
RJB
II Limited Partnership
|
40,788
|
|||
|
Marilyn
Rangel IRA DTD 2-5-86 Custodian Smith Barney Shearson
|
969
|
|||
|
Richard
Rapp
|
23
|
|||
|
Jack
F. Ream
|
1,071
|
-8-
|
Seymour
D. Reich
|
154
|
|||
|
James
C. Reynolds
|
40,284
|
|||
|
Andre
G. Richard
|
1,508
|
|||
|
Rebecca
S. Roberts
|
8,308
|
|||
|
Leslie
A. Rubin Ltd.
|
4,048
|
|||
|
James
Sage
|
2,156
|
|||
|
James
R. Sage
|
3,364
|
|||
|
Kathleen
Sage
|
50
|
|||
|
Wilton
Wade Sample
|
5,449
|
|||
|
Debbie
B. Schneeman
|
740
|
|||
|
Norma
A. Schulze
|
307
|
|||
|
Sciport
Discovery Center
|
30
|
|||
|
Sealy
& Company, Inc.
|
37,119
|
|||
|
Sealy
Florida, Inc.
|
675
|
|||
|
Sealy
Professional Drive, L.L.C.
|
2,906
|
|||
|
Sealy
Real Estate Services, Inc.
|
148,478
|
|||
|
Sealy
Unitholder, L.L.C.
|
31,552
|
|||
|
Mark
P. Sealy
|
8,451
|
|||
|
Scott
P. Sealy
|
40,902
|
|||
|
Shadeland
Associates Limited Partnership
|
42,976
|
|||
|
Frances
Shankman Insurance Trust,
Frances
Shankman Trustee
|
16,540
|
|||
|
Sam
Shamie, Trustee of the Sam Shamie
Trust
Agreement DTD 3-16-78, as Restated 11-16-93
|
375,000
|
|||
|
Garrett
E. Sheehan
|
513
|
-9-
|
Jay
H. Shidler
|
68,020
|
|||
|
Jay
H. Shidler and Wallette A. Shidler TEN ENT
|
1,223
|
|||
|
Shidler
Equities LP
|
254,541
|
|||
|
D.W.
Sivers Co.
|
12,265
|
|||
|
Dennis
W. Sivers
|
27,636
|
|||
|
Sivers
Family Real Property, Limited Liability Company
|
12,062
|
|||
|
Sivers
Investment Partnership
|
283,500
|
|||
|
Wendel
C. Sivers Marital Trust UW DTD 2-20-81 Dennis W. Sivers & G. Burke
Mims CO-TTEES
|
14,020
|
|||
|
Estate
of Albert Sklar, Miriam M. Sklar Executrix
|
3,912
|
|||
|
Michael
B. Slade
|
2,829
|
|||
|
Ellen
Margaret Smith
|
1,000
|
|||
|
Joseph
Edward Smith
|
1,000
|
|||
|
Kevin
Smith
|
10,571
|
|||
|
Olivia
Jane Smith
|
1,000
|
|||
|
Arnold
R. Sollar TTEE for the Dorothy Sollar Residuary TR
|
307
|
|||
|
Spencer
and Company
|
154
|
|||
|
SPM
Industrial LLC
|
5,262
|
|||
|
SRS
Partnership
|
2,142
|
|||
|
Robert
Stein TTEE UA DTD 5-21-96 FBO Robert Stein
|
63,630
|
|||
|
S.
Larry Stein TTEE under Revocable Trust Agreement DTD
9-22-99
S. Larry Stein Grantor
|
63,630
|
|||
|
Sterling
Family Trust DTD 3-27-80 Donald & Valerie A. Sterling
Trustees
|
3,559
|
|||
|
Jonathan
Stott
|
80,026
|
|||
|
Victor
Strauss
|
77
|
-10-
|
Catherine
O’Brien Sturgis
|
666
|
|||
|
Mitchell
Sussman
|
410
|
|||
|
Donald
C. Thompson TTEE UA DTD 12-31-98 FBO Donald C. Thompson Revocable
Family
Trust
|
39,243
|
|||
|
Michael
T. Tomasz UA DTD 2-5-90 Trustee of the Michael T. Tomasz
Trust
|
36,033
|
|||
|
Barry
L. Tracey
|
2,142
|
|||
|
William
S. Tyrrell
|
2,906
|
|||
|
Burton
S. Ury
|
9,072
|
|||
|
L.
Gary Waller & Nancy R. Waller JT TEN
|
37,587
|
|||
|
James
J. Warfield
|
330
|
|||
|
Phyllis
M. Warsaw Living Trust
|
16,540
|
|||
|
Wilson
Management Company LLC
|
35,787
|
|||
|
Elmer
H. Wingate, Jr.
|
1,688
|
|||
|
Ralph
G. Woodley TTEE under Revocable Trust Agreement
|
16,319
|
|||
|
World’s
Fair Limited Partnership
|
1,664
|
|||
|
WSW
1988 Exchange Fund LP c/o WSW Capital Inc. Credit Suisse Asset
Mgt.
LLC
|
32,000
|
|||
|
Sam
L. Yaker TTEE of the Sam L. Yaker Revocable Trust Agreement DTD
2-14-84
|
37,870
|
|||
|
Johannson
Yap
|
1,680
|
|||
|
Richard
H. Zimmerman Trustee of the Richard H. Zimmerman
Living
Trust DTD 10-15-90 as amended
|
28,988
|
|||
|
Gerald
& Sharon Zuckerman JT TEN
|
615
|
-11-
Exhibit
1C
LB
Partners
Jernie
Holdings Corp., a New York corporation
Fourbur
Co., L.L.C., a New York limited liability company
Fourbur
Family Co., L.P., a New York limited partnership
Jerome
Lazarus
Constance
Lazarus
Susan
Burman
Judith
Draizin
Jan
Burman
Judith
Draizin as custodian
under
the
NYUGMA until
age
21
for Danielle Draizin
Judith
Draizin as custodian
under
the
NYUGMA until
age
21
for Heather Draizin
Judith
Draizin as custodian
under
the
NYUGMA until
age
21
for Jason Draizin
Exhibit
1D
|
Contributor
Partner
|
Protected
Amount
|
|||
|
Kerry
Acker
|
*See
Below
|
|||
|
Sanders
H. Acker
|
*See
Below
|
|||
|
Charles
T. Andrews
|
*See
Below
|
|||
|
Daniel
R. Andrew, TR of the Daniel R.
Andrew
Trust UA 12-29-92
|
*See
Below
|
|||
|
The
Arel Company
|
*See
Below
|
|||
|
E.
Donald Bafford
|
*See
Below
|
|||
|
William
Baloh
|
*See
Below
|
|||
|
Enid
Barden TTEE of the Enid Barden
Trust
DTD 6-28-95
|
*See
Below
|
|||
|
Enid
Barden TTE of the Enid Barden
Trust
of 6-28-96
|
*See
Below
|
|||
|
Barbara
Bell
|
*See
Below
|
|||
|
Stephen
McNair Bell
|
*See
Below
|
|||
|
Emil
Billich
|
*See
Below
|
|||
|
Don
N. Blurton & Patricia H. Blurton Trustees UA DTD 4-11-96 Blurton
Revocable Family Trust
|
*See
Below
|
|||
|
Michael
W. Brennan
|
*See
Below
|
|||
|
Helen
Brown
|
*See
Below
|
|||
|
Henry
D. Bullock & Terri D. Bullock &
Shawn
Stevenson TR of the Bullock
Childrens
Education Trust UA 12-20-94,
FBO
Benjamin Dure Bullock
|
*See
Below
|
|||
|
Henry
D. Bullock & Terri D. Bullock &
Shawn
Stevenson TR of the Bullock
Childrens
Education Trust UA 12-20-94,
FBO
Christine Laurel Bullock
|
*See
Below
|
|||
|
Ernestine
Burstyn
|
*See
Below
|
|||
|
Calamer,
Inc.
|
*See
Below
|
|||
|
Perry
C. Caplan
|
*See
Below
|
|||
|
Carew
Corporation
|
*See
Below
|
|||
|
Magdalena
G. Castleman
|
*See
Below
|
|||
|
Cliffwood
Development Company
|
*See
Below
|
|||
|
Michael
G. Damone TR of the Michael G.
Damone
Trust UA 11-4-69
|
*See
Below
|
|||
|
Robert
L. Denton
|
*See
Below
|
|||
|
John
E. De B Blockey TR of the John E. De B Blockey Trust
|
*See
Below
|
|||
|
Henry
E. Dietz Trust UA 1-16-81
|
*See
Below
|
|||
|
John
M. DiSanto
|
*See
Below
|
|||
|
Mark
X. DiSanto
|
*See
Below
|
|||
|
Darwin
B. Dosch
|
*See
Below
|
|||
|
Draizin
Family Partnership, L.P.
|
*See
Below
|
|||
|
Joseph
S. Dresner
|
*See
Below
|
|||
|
Milton
H. Dresner TR of the Milton H. Dresner Revocable Trust UA 10-22-76
|
*See
Below
|
|||
|
Martin
Eglow
|
*See
Below
|
|||
|
Rand
H. Falbaum
|
*See
Below
|
|||
|
Rowena
Finke
|
*See
Below
|
|||
|
First
& Broadway Limited Partnership
|
*See
Below
|
|||
|
Fourbur
Family Co., L.P.
|
*See
Below
|
|||
|
Ester
Fried
|
*See
Below
|
|||
|
Jack
Friedman TR of the Jack Friedman Revocable Living Trust UA
3-23-78
|
*See
Below
|
|||
|
Nancy
Gabel
|
*See
Below
|
-2-
|
Gerlach
Family Trust DTD 6-28-85 Stanley & Linda Gerlach Trustees
|
*See
Below
|
|||
|
Martin
Goodstein
|
*See
Below
|
|||
|
Dennis
G. Goodwin and Jeannie L. Goodwin TEN ENT
|
*See
Below
|
|||
|
Jeffrey
L. Greenberg
|
*See
Below
|
|||
|
Stanley
Greenberg & Florence Greenberg JT TEN
|
*See
Below
|
|||
|
Thelma
C. Gretzinger Trust
|
*See
Below
|
|||
|
Stanley
Gruber
|
*See
Below
|
|||
|
H.P.
Family Group LLC
|
*See
Below
|
|||
|
Clay
Hamlin & Lynn Hamlin JT TEN
|
*See
Below
|
|||
|
Andrew
Holder
|
*See
Below
|
|||
|
Ruth
Holder
|
*See
Below
|
|||
|
Robert
W. Holman, Jr.
|
*See
Below
|
|||
|
Holman/Shidler
Investment Corporation
|
*See
Below
|
|||
|
Robert
S. Hood Living Trust DTD 1-9-90 & amended 12-16-96 Robert S. Hood
Trustee
|
*See
Below
|
|||
|
Steven
B. Hoyt
|
*See
Below
|
|||
|
Jerry
Hymowitz
|
*See
Below
|
|||
|
Karen
L. Hymowitz
|
*See
Below
|
|||
|
Seymour
Israel
|
*See
Below
|
|||
|
Frederick
K. Ito Trustee UA DTD 9-9-98 FBO The Frederick K. Ito Trust
|
*See
Below
|
|||
|
Frederick
K. Ito and June Y. Ito Trustees UA DTD 9-9-98 FBO The June Y. Ito
Trust
|
*See
Below
|
|||
|
JP
Trusts LLC
|
*See
Below
|
|||
|
Michael
W. Jenkins
|
*See
Below
|
|||
|
Jernie
Holdings Corp.
|
*See
Below
|
-3-
|
Charles
Mark Jordan
|
*See
Below
|
|||
|
Nourhan
Kailian
|
*See
Below
|
|||
|
H.L.
Kaltenbacher, P.P. Kaltenbacher & J.K. Carr TTEES
of
the Joseph C. Kaltenbacher Credit Shelter TR
|
*See
Below
|
|||
|
Sarah
Katz
|
*See
Below
|
|||
|
Carol
F. Kaufman
|
*See
Below
|
|||
|
KEP
LLC
|
*See
Below
|
|||
|
Jack
Kindler
|
*See
Below
|
|||
|
Kirshner
Family Trust #1 DTD 4-8-76 Berton & Barbara Kirshner
Trustees
|
*See
Below
|
|||
|
Kirshner
Trust #4 FBO Todd Kirshner DTD 12-30-76 Berton Kirshner
Trustee
|
*See
Below
|
|||
|
Arthur
Kligman
|
*See
Below
|
|||
|
Joan
R. Krieger TTEE of the Joan R. Krieger Revocable Trust DTD
1021-97
|
*See
Below
|
|||
|
William
L. Kreiger, Jr.
|
*See
Below
|
|||
|
LP
Family Group LLC
|
*See
Below
|
|||
|
Paul
T. Lambert
|
*See
Below
|
|||
|
Constance
Lazarus
|
*See
Below
|
|||
|
Jerome
Lazarus
|
*See
Below
|
|||
|
Susan
Lebow
|
*See
Below
|
|||
|
Arron
Leifer
|
*See
Below
|
|||
|
Barbara
Lusen
|
*See
Below
|
|||
|
William
J. Mallen Trust DTD 4-29-94,
William
J. Mallen Trustee
|
*See
Below
|
|||
|
Stephen
Mann
|
*See
Below
|
|||
|
R.
Craig Martin
|
*See
Below
|
-4-
|
J.
Stanley Mattison
|
*See
Below
|
|||
|
Henry
E. Mawicke
|
*See
Below
|
|||
|
Eileen
Millar
|
*See
Below
|
|||
|
Linda
Miller
|
*See
Below
|
|||
|
Peter
Murphy
|
*See
Below
|
|||
|
Anthony
Muscatello
|
*See
Below
|
|||
|
New
Land Associates Limited Partnership
|
*See
Below
|
|||
|
Kris
Nielsen
|
*See
Below
|
|||
|
North
Star Associates Limited Partnership
|
*See
Below
|
|||
|
George
F. Obrecht
|
*See
Below
|
|||
|
Paul
F. Obrecht
|
*See
Below
|
|||
|
Richard
F. Obrecht
|
*See
Below
|
|||
|
Thomas
F. Obrecht
|
*See
Below
|
|||
|
Peter
O’Connor
|
*See
Below
|
|||
|
P&D
Partners LP
|
*See
Below
|
|||
|
Partridge
Road Associates
|
*See
Below
|
|||
|
Sybil
T. Patten
|
*See
Below
|
|||
|
PeeGee
L.P.
|
*See
Below
|
|||
|
Lawrence
Peters
|
*See
Below
|
|||
|
Jeffrey
Pion
|
*See
Below
|
|||
|
Peter
M. Polow
|
*See
Below
|
|||
|
Keith
J. Pomeroy TTEE of Keith J. Pomeroy
Revocable
TR Agreement DTD 12-13-76 as
Amended
& Restated 6-28-95
|
*See
Below
|
|||
|
Princeton
South at Lawrenceville LLC
|
*See
Below
|
-5-
|
Princeton
South at Lawrenceville One
|
*See
Below
|
|||
|
Abraham
Punia
|
*See
Below
|
|||
|
RBZ
LLC
|
*See
Below
|
|||
|
R.E.A.
Associates
|
*See
Below
|
|||
|
Richard
Rapp
|
*See
Below
|
|||
|
Jack
F. Ream
|
*See
Below
|
|||
|
Seymour
D. Reich
|
*See
Below
|
|||
|
James
C. Reynolds
|
*See
Below
|
|||
|
Rebecca
S. Roberts
|
*See
Below
|
|||
|
Leslie
A. Rubin Ltd.
|
*See
Below
|
|||
|
SRS
Partnership
|
*See
Below
|
|||
|
Kathleen
Sage
|
*See
Below
|
|||
|
Debbie
B. Schneeman
|
*See
Below
|
|||
|
Norma
A. Schulze
|
*See
Below
|
|||
|
Shadeland
Associates Limited Partnership
|
*See
Below
|
|||
|
Frances
Shankman Insurance Trust,
Frances
Shankman Trustee
|
*See
Below
|
|||
|
Sam
Shamie, Trustee of the Sam Shamie
Trust
Agreement DTD 3-16-78, as
Restated
11-16-93
|
*See
Below
|
|||
|
Jay
H. Shidler
|
*See
Below
|
|||
|
Jay
H. Shidler and Wallette A. Shidler TEN ENT
|
*See
Below
|
|||
|
Shidler
Equities LP
|
*See
Below
|
|||
|
D.W.
Sivers Co.
|
*See
Below
|
|||
|
Dennis
W. Sivers
|
*See
Below
|
|||
|
Sivers
Family Real Property, Limited Liability Company
|
*See
Below
|
-6-
|
Sivers
Investment Partnership
|
*See
Below
|
|||
|
Wendel
C. Sivers Marital Trust UW DTD 2-20-81 Dennis W. Sivers & G. Burke
Mims CO-TTEES
|
*See
Below
|
|||
|
Kevin
Smith
|
*See
Below
|
|||
|
Spencer
and Company
|
*See
Below
|
|||
|
Robert
Stein TTEE UA DTD 5-21-96 FBO Robert Stein
|
*See
Below
|
|||
|
S.
Larry Stein TTEE under Revocable Trust Agreement DTD 9-22-99 S.
Larry
Stein Grantor
|
*See
Below
|
|||
|
Sterling
Family Trust DTD 3-27-80 Donald & Valerie A. Sterling
Trustees
|
*See
Below
|
|||
|
Jonathan
Stott
|
*See
Below
|
|||
|
Victor
Strauss
|
*See
Below
|
|||
|
Mitchell
Sussman
|
*See
Below
|
|||
|
Donald
C. Thompson TTEE UA DTD 12-31-98 FBO Donald C. Thompson Revocable
Family
Trust
|
*See
Below
|
|||
|
Michael
T. Tomasz UA DTD 2-5-90 Trustee of the Michael T. Tomasz
Trust
|
*See
Below
|
|||
|
Barry
L. Tracey
|
*See
Below
|
|||
|
William
S. Tyrrell
|
*See
Below
|
|||
|
Burton
S. Ury
|
*See
Below
|
|||
|
James
J. Warfield
|
*See
Below
|
|||
|
Phyllis
M. Warsaw Living Trust
|
*See
Below
|
|||
|
Wilson
Management Co. LLC
|
*See
Below
|
|||
|
Elmer
H. Wingate, Jr.
|
*See
Below
|
|||
|
Ralph
G. Woodley TTEE under Revocable Trust Agreement
|
*See
Below
|
|||
|
World’s
Fair Limited Partnership
|
*See
Below
|
|||
|
Sam
L. Yaker TTEE of the Sam L. Yaker Revocable Trust Agreement DTD
2-14-84
|
*See
Below
|
-7-
|
Richard
H. Zimmerman Trustee of the Richard H. Zimmerman Living Trust DTD
10-15-90
as amended
|
*See
Below
|
|||
|
Gerald
& Sharon Zuckerman JT TEN
|
*See
Below
|
|||
|
New
Land Associates LP
|
2,195,750
|
|||
|
World’s
Fair Partners, LP
|
211,208
|
|||
|
Princeton
South at Lawrenceville
|
5,267,344
|
|||
|
Stanley
Gruber
|
1,388,338
|
|||
|
Stephen
Mann
|
120,174
|
|||
|
Seymour
Israel
|
120,169
|
|||
|
James
O’Neil Duffy, Jr.
|
4,107
|
|||
|
Garrett
E. Sheehan
|
4,107
|
|||
|
Andrew
Holder
|
10,000
|
|||
|
Arron
Leifer
|
300,000
|
|||
|
Arthur
Kligman
|
80,000
|
|||
|
Barbara
Lusen
|
80,000
|
|||
|
Carol
F. Kaufman
|
50,000
|
|||
|
Debbie
B. Schneeman
|
30,000
|
|||
|
Emil
Billich
|
25,000
|
|||
|
Ernestine
Burstyn
|
160,000
|
|||
|
H.L.
Kaltenbacher, P.P. Kaltenbacher & J.K. Carr TTEES of the Joseph C.
Kaltenbacher Credit Shelter TR
|
100,000
|
|||
|
HP
Family Group, LLC
|
16,110,000
|
|||
|
Jack
Kindler
|
100,000
|
|||
|
Jerry
Hymowitz
|
80,000
|
|||
|
JP
Trusts LLC
|
4,729,000
|
-8-
|
Karen
L. Hymowitz
|
45,000
|
|||
|
Kerry
Acker
|
45,000
|
|||
|
Lawrence
Peters
|
75,000
|
|||
|
LP
Family Group LLC
|
16,015,000
|
|||
|
Magdalena
G. Castleman
|
80,000
|
|||
|
Martin
Goodstein
|
250,000
|
|||
|
Mitchell
Sussman
|
110,000
|
|||
|
Nancy
Gabel
|
5,000
|
|||
|
Norma
A. Schulze
|
80,000
|
|||
|
P&D
Partners LP
|
100,000
|
|||
|
PeeGee
L.P.
|
25,000
|
|||
|
Peter
M. Polow
|
75,000
|
|||
|
R.E.A.
Associates
|
4,192,000
|
|||
|
Richard
Rapp
|
10,000
|
|||
|
Sanders
H. Acker
|
80,000
|
|||
|
Sarah
Katz
|
80,000
|
|||
|
Seymour
D. Reich
|
45,000
|
|||
|
Spencer
and Company
|
45,000
|
|||
|
Susan
Lebow
|
30,000
|
|||
|
The
Arel Company
|
80,000
|
|||
|
Victor
Strauss
|
25,000
|
|||
|
WSW
1998 Exchange Fund L.P.
|
315,000
|
|||
|
Rowena
Finke
|
45,000
|
|||
|
Ruth
Holder
|
230,000
|
-9-
|
Stanley
Greenberg & Florence Greenberg JT TEN
|
80,000
|
|||
|
Abraham
Punia
|
80,000
|
|||
|
Francis
Shankman Insurance Trust, Francis Shankman Trustee
|
200,000
|
|||
|
Jerome
Lazarus
|
17,000,000
|
|||
|
Constance
Lazarus
|
3,600,000
|
|||
|
Jernie
Holdings Corp.
|
100,000
|
|||
|
Fourbur
Family Co., L.P.
|
5,985,000
|
|||
|
Robert
L. Friedman
|
249,000
|
|||
|
Phyllis
M. Warsaw Living Trust
|
212,000
|
* An
amount
equal to (a) the taxable gain, if any, that would be realized by such Additional
Limited Partner if such Additional Limited Partner were to dispose of its
Interest for no consideration other than the release or deemed release of
liabilities of the partnership assumed by or otherwise allocable to such
Additional Limited Partner under Code Section 752, as such hypothetical gain
is
determined from time to time, less (b) such Additional Limited Partner’s
share of “qualified nonrecourse financing” as defined in Code Section 465(b)(6)
and the Treasury Regulations thereunder, as such share is determined in
accordance with Treasury Regulations Section 1.752-3(a).
-10-
FIRST
INDUSTRIAL, L.P.
EXHIBIT
2
TO
TENTH
AMENDED AND RESTATED
LIMITED
PARTNERSHIP AGREEMENT
Form
of Redemption Notice
Exhibit
2
Redemption
Notice
The
undersigned hereby irrevocably (i) elects to exercise its redemption rights
contained in Section 9.1(A) of the Tenth Amended and Restated Limited
Partnership Agreement of First Industrial, L.P. (the “Partnership Agreement”)
with respect to an aggregate of _____ Partnership Units (as defined in the
Partnership Agreement), (ii) surrenders such Partnership Units and all
right, title and interest therein and (iii) directs that the REIT shares
(as defined in the Partnership Agreement), or applicable cash amount if so
determined by the General Partner (as defined in the Partnership Agreement)
in
accordance with the Partnership Agreement, deliverable upon redemption of such
Partnership Units be delivered to the address specified below.
Dated:
______________________
Name
of
Limited Partner: ______________________
Social
Security or
Federal
Employer ID Number: ______________________
|
(Signature
of Limited Partner)
|
|
(Street
Address)
|
|
(City) (State)(Zip
Code)
|
|
Signature
Guaranteed by:
|
FIRST
INDUSTRIAL, L.P.
EXHIBIT
3
TO
TENTH
AMENDED AND RESTATED
LIMITED
PARTNERSHIP AGREEMENT
Form
of Registration Rights Agreement
Exhibit
3
REGISTRATION
RIGHTS AGREEMENT
Dated
as of June __, 1994
of
First
Industrial Realty Trust, Inc.
for
the benefit of
HOLDERS
OF LIMITED PARTNERSHIP UNITS
of
First
Industrial, L.P.
Registration
Rights Agreement
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
June , 1994, by First Industrial Realty Trust, Inc. (the
“Company”) for the benefit of the persons who own limited partnership units
(“Units”) of First Industrial, L.P. (the “Partnership”) on the date hereof and
their successors, assigns and transferees (herein referred to collectively
as
the “Holders” and individually as a “Holder”).
WHEREAS,
on the date hereof each Holder is or will become the owner of Units in the
Partnership in connection with the contribution (the “Contributions”) of certain
real properties and other assets to the Partnership;
WHEREAS,
on the date hereof the company is consummating an initial public offering of
its
common stock and is becoming the sole general partner of the
Partnership;
WHEREAS,
in connection with the foregoing, the Company has agreed, subject to the terms,
conditions and limitations set forth in the limited partnership agreement of
the
Partnership (the “Partnership Agreement”), to provide the Holders with certain
registration rights.
NOW,
THEREFORE, the Company for the benefit of the Holders agrees as
follows:
Section
1. Definitions.
As
used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
Exchange
Act:
The
Securities Exchange Act of 1934, as amended form time to time.
Holders
or Holders:
As set
forth in the preamble.
Majority
Holders:
At any
time, Holders of Registrable Securities and Units then redeemable for
Registrable Securities, who if all Units were so redeemed, would then hold
a
majority of the Registrable Securities.
NASD:
The
National Association of Securities Dealers, Inc.
Person:
Any
individual, partnership, corporation, trust or other entity.
Prospectus:
A
prospectus included in the Shelf Registration statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein.
Registrable
Securities:
The
Shares, excluding (i) Shares for which the Shelf Registration Statement
shall have become effective under the Securities Act and which have been
disposed of under the Shelf Registration Statement (ii) Shares sold or
otherwise distributed pursuant to Rule 144 under the Securities Act and
(iii) Shares as to which registration under the Securities Act is not
required to permit the sale thereof to the public.
Registration
Expenses:
Any and
all expenses incident to performance of or compliance with this Agreement,
including, without limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualification of any of the Registrable Securities and the preparation of a
Blue
Sky Memorandum) and compliance with the rules of the NASD, (iii) all
-2-
expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing the Shelf Registration Statement, any Prospectus, certificates
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities exchange
or exchanges pursuant to Section 3(1) hereof, and (v) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
“cold comfort” letters, if any, required by or incident to such performance and
compliance. Registration Expenses shall specifically exclude underwriting
discounts and commissions, brokerage or dealer fees, the fees and disbursements
of counsel, accountants or other representatives of a selling Holder, and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a selling Holder, all of which shall be borne by such Holder
in
all cases.
Registration
Notice:
As set
forth in Section 3(b) hereof.
Sale
Period:
The
45-day period immediately following the filing with the SEC by the Company
of an
annual report of the Company on Form 1-K or a quarterly report of the
Company on Form 10-Q or such other period as the Company may
determine.
SEC:
The
Securities and Exchange Commission.
Securities
Act:
The
Securities Act of 1933, as amended from time to time.
Shares:
The
shares of common stock, $.01 par value, of the Company issued to Holders of
Unites upon redemption or exchange of their Units.
Shelf
Registration:
A
registration required to be effected pursuant to Section 2
hereof.
Shelf
Registration Statement:
A
“shelf” registration statement of the Company and any other entity required to
be a registrant with respect to such shelf registration statement pursuant
to
the requirements of the Securities Act which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the Securities Act,
or any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all materials incorporated by reference therein.
Units:
Limited
partnership interests in the Partnership issued to the holders in connection
with the Contributions.
Section
2. Shelf Registration Under the Securities Act.
(a) Filing
of Shelf Registration Statement.
Within
13 months following the date hereof, the Company shall cause to be filed a
Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities ion accordance with the terms hereof and will use its
reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the SEC as soon as reasonably practicable. The Company
agrees to use it reasonable best efforts to keep the Shelf Registration
Statement continuously effective under the Securities Act until such time as
the
aggregate number of Units and Registrable Securities outstanding is less than
5%
of the aggregate number of Units outstanding on the date hereof (after giving
effect to the Contributions) and, subject to Section 3(b) and
Section 3(i), further agrees to supplement or amend the Shelf Registration
Statement, if and as required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for Shelf Registration. Each Holder who sells Shares
as
part of the Shelf Registration shall be deemed to have agreed to all of the
terms and conditions of this Agreement and to have agreed to perform any and
all
obligations of a Holder hereunder.
-3-
(b) Expenses.
The
Company shall pay all Registration Expenses in connection with the registration
pursuant to Section 2(a). Each Holder shall pay all underwriting discounts
and
commissions, brokerage or dealer fees, the fees and disbursements of counsel,
accountants or other representatives of such Holder and transfer taxes, if
any,
relating to the sale or disposition of such Holder’s Registrable Securities
pursuant to the Shelf Registration Statement or Rule 144 under the Securities
Act.
(c) Inclusion
in Shelf Registration Statement.
Not
later than 30 days prior to filing the Shelf Registration Statement with the
SEC, the Company shall notify each Holder of its intention to make such filing
and request advice from each Holder as to whether such Holder desires to have
Registrable Securities held by it or which it is entitled to receive not later
than the last day of the first Sale Period occurring in whole or in part after
the date of such notice included in the Shelf Registration Statement at such
time. Any Holder who does not provide the information reasonably requested
by
the Company in connection with the Shelf Registration Statement as promptly
as
practicable after receipt of such notice, but in no event later than 20 days
thereafter, shall not be entitled to have its Registrable Securities included
in
the Shelf Registration Statement at the time it becomes effective, but shall
have the right thereafter to deliver to the Company a Sale Notice as
contemplated by Section 3(b).
Section
3. Registration Procedures.
In
connection with the obligations of the Company with respect to the Shelf
Registration Statement pursuant to Section 2 hereof, the Company
shall:
(a) prepare
and file with the SEC, within the time period set forth in Section 2(a) hereof,
a Shelf Registration Statement, which Shelf Registration Statement
(i) shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof and (ii) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith.
(b) subject
to the last three sentences of this Section 3(b) and to Section 3(i) hereof,
(i) prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep
the
Shelf Registration Statement effective for the applicable period;
(ii) cause each Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act; (iii) respond
promptly to any comments received from the SEC with respect to the Shelf
Registration Statement, or any amendment, post-effective amendment or supplement
relating thereto; and (iv) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by the Shelf
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof.
Notwithstanding anything to the contrary contained herein, the Company shall
not
be required to take any of the actions described in clauses (i), (ii) or (iii)
above with respect to each particular Holder of Registrable Securities unless
and until the Company has received either a written notice (a “Registration
Notice”) from a Holder that such Holder intends to make offers or sales under
the Shelf Registration Statement as specified in such Registration Notice or
a
written response from such Holder of the type contemplated by Section 2(c);
provided,
however,
that
the Company shall have 7 business days to prepare and file any such amendment
or
supplement after receipt of a Registration Notice. Once a Holder has delivered
such a written response or a Registration Notice to the Company, such Holder
shall promptly provide to the Company such information as the Company reasonably
requests in order to identify such Holder and the method of distribution in
a
post-effective amendment to the Shelf Registration Statement or a supplement
to
a Prospectus. Offers or sales under the Shelf Registration Statement may be
made
only during a Sale Period. Such Holder also shall notify the Company in writing
upon completion of such offer or sale or at such time as such Holder no longer
intends to make offers or sales under the Shelf Registration
Statement.
(c) furnish
to each Holder of Registrable Securities that has delivered a Registration
Notice to the Company, without charge, as many copies of each applicable
Prospectus, including each preliminary Prospectus,
-4-
and
any
amendment or supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Securities; the Company consents to the use of such
Prospectus, including each preliminary Prospectus, by each such Holder of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or the preliminary
Prospectus.
(d) use
its
reasonable best efforts to register or qualify the Registrable Securities by
the
time the Shelf Registration Statement is declared effective by the SEC under
all
applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by the Shelf Registration Statement
shall reasonably request in writing, keep each such registration or
qualification effective during the period the Shelf Registration Statement
is
required to be kept effective or during the period offers or sales are being
made by a Holder that has delivered a Registration Notice to the Company,
whichever is shorter, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned
by
such Holder; provided,
however,
that
the Company shall not be required (i) to qualify generally to do business
in any jurisdiction or to register as a broker or dealer in such jurisdiction
where it would not be required so to qualify or register but for this Section
3(d), (ii) to subject itself to taxation in any such jurisdiction or
(iii) to submit to the general service of process in any such
jurisdiction.
(e) notify
each Holder when the Shelf Registration Statement has become effective and
notify each Holder of Registrable Securities that has delivered a Registration
Notice to the Company promptly and, if requested by such Holder, confirm such
advice in writing (i) 3hen any post-effective amendments and supplements to
the Shelf Registration Statement become effective, (ii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iii) if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during
the period the Shelf Registration Statement is effective as a result of which
the Shelf Registration Statement or a related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to
be
stated therein or necessary to make the statements therein (in the case of
the
Prospectus, in light of the circumstances under which they were made) not
misleading.
(f) make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement at the earliest possible
moment.
(g) furnish
to each Holder of Registrable Securities that has delivered a Registration
Notice to the Company, without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested).
(h) cooperate
with the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
to
be sold and not bearing any Securities Act legend; and enable certificates
for
such Registrable Securities to be issued for such numbers of shares and
registered in such names as the selling Holders may reasonably request at least
two (2) business days prior to any sale of Registrable Securities.
(i) subject
to the last three sentences of Section 3(b) hereof, upon the occurrence of
any
event contemplated by Section 3(e)(iv) hereof, use its reasonable best efforts
promptly to prepare and file a supplement or prepare, file and obtain
effectiveness of a post-effective amendment to the Shelf Registration Statement
or a related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
-5-
(j) make
available for inspection by representatives of the Holders of the Registrable
Securities and any counsel or accountant retained by such Holders, all financial
and other records, pertinent corporate documents and properties of the Company,
and cause the respective officers, directors and employees of the Company to
supply all information reasonably requested by any such representative, counsel
or accountant in connection with the Shelf Registration Statement; provided,
however,
that
such records, documents or information which the Company determines in good
faith to be confidential, and notifies such representatives, counsel or
accountants in writing that such records, documents or information are
confidential, shall not be disclosed by the representatives, counsel or
accountants unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a material misstatement or omission
in the Shelf Registration Statement, (ii) the release of such records,
documents or information is ordered pursuant to a subpoena or other order from
a
court of competent jurisdiction or (iii) such records, documents or
information have been generally made available to the public otherwise than
in
violation of this Agreement.
(k) a
reasonable time prior to the filing of any Prospectus, any amendment to the
Shelf Registration Statement or amendment or supplement to a Prospectus, provide
copies of such document (not including any documents incorporated by reference
therein unless requested) to the Holders of Registrable Securities that have
provided a Registration Notice to the Company.
(l) use
its
reasonable best efforts to cause all Registrable Securities to be listed on
any
securities exchange on which similar securities issued by the Company are then
listed.
(m) obtain
a
CUSIP number for all Registrable Securities, not later than the effective date
of the Shelf Registration Statement.
(n) otherwise
use its reasonable efforts to comply with all applicable rules and regulations
of the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(o) use
its
reasonable best efforts to cause the Registrable Securities covered by the
Shelf
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable Holders that have delivered
Registration Notices to the Company to consummate the disposition of such
Registrable Securities.
The
Company may require each Holder of Registrable Securities to furnish to the
Company in writing such information regarding the proposed distribution by
such
Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing.
In
connection with and as a condition to the Company’s obligations with respect to
the Shelf Registration Statement pursuant to Section 2 hereof and this Section
3, each Holder agrees that (i) it will not offer or sell its Registrable
Securities under the Shelf Registration Statement until (A) it has either
(1) provided a Registration Notice pursuant to Section 3(b) hereof or (2)
had Registrable Securities included in the Shelf Registration Statement at
the
time it became effective pursuant to Section 2(c) hereof and (B) it has received
copies of the supplemented or amended Prospectus contemplated by Section 3(b)
hereof and receives notice that any post-effective amendment has become
effective; (ii) upon receipt of nay notice from the Company of the
happening of any event of the kind described in Section 3(b)(iv) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Shelf Registration Statement until such Holder receives copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof and
receives notice that any post-effective amendment has become effective, and,
if
so directed by the Company, such Holder will deliver to the Company (at the
expense of the Company) all copies in its possession, other than permanent
file
copies then in such Holder’s possession, of the Prospectus covering such
registrable Securities current at the time of receipt of such notice; and (iii)
all offers and sales under the Shelf Registration Statement shall be completed
within forty-five (45) days after the first date on
-6-
which
offers or sales can be made pursuant to clause (i) above, and upon expiration
of
such forty-five (45) day period the Holder will not offer or sell its
Registrable Securities under the Shelf Registration Statement until it has
again
complied with the provisions of clauses (i)(A)(1) and (B) above, except that
if
the applicable Registration Notice was delivered to the Company at a time which
was not part of a Sale Period, such forty-five (45) day period shall be the
next
succeeding Sale Period.
Section
4. Restrictions on Public Sale by Holders of Registrable
Securities.
Each
Holder agrees with the Company that:
(a) If
the
Company determines in its good faith judgment, after consultation with counsel,
that the filing of the Shelf Registration Statement under Section 2 hereof
or
the use of any Prospectus would require the disclosure of important information
which the Company has a bona fide business purpose for preserving as
confidential or the disclosure of which would impede the Company’s ability to
consummate a significant transaction, upon written notice of such determination
by the Company, the rights of the Holders to offer, sell or distribute any
Registrable Securities pursuant to the Shelf Registration Statement or to
require the Company to take action with respect to the registration or sale
of
any Registrable Securities pursuant to the Shelf Registration Statement
(including any action contemplated by Section 3 hereof) will be suspended until
the date upon which the Company notifies the Holders in writing that suspension
of such rights for the grounds set forth in this Section 4(a) is no longer
necessary.
(b) In
the
case of the registration of any underwritten equity offering proposed by the
Company (other than any registration by the Company on Form S-8, or a successor
or substantially similar form, of (i) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable pursuant
to
any such plan or (ii) a dividend reinvestment plan), each Holder agrees, if
requested in writing by the managing underwriter or underwriters administering
such offering, not to effect any offer, sale or distribution of Registrable
Securities ) or any option or right to acquire Registrable Securities) during
the period commencing on the 10th day prior to the expected effective date
(which date shall be stated in such notice) of the registration statement
covering such underwritten primary equity offering and ending on the date
specified by such managing underwriter in such written request to such Holder,
which date shall not be later than six months after such expected date of
effectiveness;
(c) In
the
event that any Holder uses a Prospectus in connection with the offering and
sale
of Registrable Securities covered by such Prospectus, such Holder will use
only
the latest version of such Prospectus provided to it by the
Company.
Section
5. Indemnification Contribution.
(a) Indemnification
by the Company.
The
Company agrees to indemnify and hold harmless each Holder and its officers
and
directors and each person, if any, who controls any Holder within the meaning
of
Section 15 of the Securities Act as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Shelf Registration Statement (or any amendment thereto)
or
any Prospectus, including all documents incorporated therein by reference,
or
the omission or alleged omission therefrom of a material fact necessary in
order
to make the statements therein, in light of the circumstances under which they
were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
-7-
untrue
statement or omission, or any such alleged untrue statement or omission, if
such
settlement is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including reasonable fees and
disbursements of counsel), reasonably incurred in investigating, preparing
or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or
not a party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or (ii) above;
provided,
however,
that
the indemnity provided pursuant to this Section 5(a) does not apply to any
Holder with respect to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in the
Shelf Registration Statement (or any amendment thereto) or any
Prospectus.
(b) Indemnification
by Holders.
Each
Holder severally agrees to indemnify and hold harmless the Company and the
other
selling Holders, and each of their respective directors and officers (including
each director and officer of the Company who signed the Shelf Registration
Statement), and each person, if any, who controls the Company or any other
selling Holder within the meaning of Section 15 of the Securities Act, to the
same extent as the indemnity contained in Section 5(a) hereof (except that
any
settlement described in Section 5(a)(2) shall be effected with the written
consent of such Holder), but only insofar as such loss, liability, claim, damage
or expense arises out of or is based upon any untrue statement or omission,
or
alleged untrue statement or omission, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus in reliance upon and in conformity
with written information furnished to the Company by such selling Holder
expressly for use in the Shelf Registration Statement (or any amendment thereto)
or such Prospectus. In no event shall the liability of any Holder under this
Section 5(b) be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving
rise
to such indemnification obligation.
(c) Each
indemnified party shall give reasonably prompt notice to each indemnifying
party
of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to notify an indemnifying party
(i) shall not relieve it from any liability which it may have under the
indemnity agreement provided in Section 5(a) or (b) unless and to the extent
it
did not otherwise learn of such action and the lack of notice by the indemnified
party results in the forfeiture by the indemnifying party of substantial rights
and defenses and (ii) shall not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided under Section 5(a) or (b). If the
indemnifying party so elects within a reasonable time after receipt of such
notice, the indemnifying party may assume the defense of such action or
proceeding at such indemnifying party’s own expense with counsel chosen by the
indemnifying party; provided,
however,
that,
if such indemnified party or parties reasonably determine that a conflict of
interest exists where it is advisable for such indemnified part or parties
to be
represented by separate counsel or that, upon advice of counsel, there may
be
legal defenses available to them which are different from or in addition to
those available to the indemnifying party, then the indemnifying party shall
not
be entitled to assume such defense and the indemnified party or parties in
the
aggregate shall be entitled to one separate counsel at the indemnifying party’s
expense. If an indemnifying party is not so entitled to assume the defense
of
such action or does not assume such defense, after having received the notice
referred to in the first sentence of this Section 5(c), the indemnifying party
or parties will pay the reasonable fees and expenses of counsel for the
indemnified party or parties. In such event however, no indemnifying party
will
be liable for any settlement effected without the written consent of such
indemnifying party. If an indemnifying party is entitled to assume, and assumes,
the defense of such action or proceeding in accordance with this paragraph,
such
indemnifying party shall not be liable for any fees and expenses of counsel
for
the indemnified parties incurred thereafter in connection with such action
or
proceeding.
-8-
(d) In
order
to provide for just and equitable contribution in circumstances in which the
indemnity agreement provided for in this Section 5 is for any reason held to
be
unenforceable although applicable in accordance with its terms, the Company
and
the selling Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement incurred by the Company and the selling Holders, in such proportion
as
is appropriate to reflect the relative fault of and benefits to the Company
on
the one hand the selling Holders on the other (in such proportions that the
selling Holders are severally, not jointly, reasonable for the balance), in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified parties shall be determined by reference to, among other things,
the
total proceeds received by the indemnifying party and indemnified parties in
connection with the offering to which such losses, liabilities, claims, damages,
or expenses relate. The relative fault of the indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been
made by, or relates to information supplied by, such indemnifying party or
the
indemnified parties, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action.
The
Company and the Holders agree that it would not be just or equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no selling Holder shall
be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such selling Holder were offered
to
the public exceeds the amount of any damages which such selling Holder is
otherwise required to pay by reason of such untrue statement or
omission.
Notwithstanding
the foregoing, no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person w ho was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5(d), each Person, if any,
who
controls a Holder within the meaning of Section 15 of the Securities Act and
directors and officers of a Holder shall have the same rights to contribution
as
such Holder, and each director of the Company, each officer of the Company
w ho
signed the Shelf Registration Statement and each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act shall have
the same rights to contribution as the Company.
Section
6. Rule 144 Sales.
(a) The
Company covenants that it will file the reports requires to be filed by the
Company under the Securities Act and the Exchange Act, so as to enable any
H
older to sell Registrable Securities pursuant to Rule 144 under the Securities
Act.
(b) In
connection with any sale, transfer or other disposition by any Holder of any
Registrable Securities pursuant to Rule 144 under the Securities Act, the
Company shall cooperate with such Holder to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold
and
not bearing any Securities Act legend, and enable certificates for such
Registrable Securities to be for such number of shares and registered in such
names as the selling Holders may reasonably request at least two business days
prior to any sale of Registrable Securities.
Section
7. Miscellaneous.
(a) Amendments
and Waivers.
The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given without consent of the Company and
Holders constituting Majority Holders; provided,
however,
that no
amendment, modification or supplement or waiver or consent to the departure
with
-9-
respect
to the provisions of Sections 2, 3, 4, 5, 6 or 7(a) hereof or the definition
of
Registrable Securities or which would impair the rights of any Holder under
such
provisions, shall be effective as against any Holder of Registrable Securities
or Units redeemable for Registrable Securities unless consented to in writing
by
such Holder of Registrable Securities or Units. Notice of any amendment,
modification or supplement to this Agreement adopted in accordance with this
Section 7(a) shall be provided by Company to each Holder of Registrable
Securities or Units redeemable for Registrable Securities at least thirty (30)
days prior to the effective date of such amendment, modification or
supplement.
(b) Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, telex, telecopier
or any courier guaranteeing overnight delivery, (i) if to a Holder, at the
most current address given by such Holder to the Company by means of a notice
given in accordance with the provisions of this Section 7(b), which address
initially is, with respect to each H older, the address set forth in the
Partnership Agreement, or (ii) to the Company, at 150 N. Wacker Drive,
Suite 150, Chicago, Illinois 60606, Attention: President.
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; five (5) business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; or at the time delivered
if delivered by an air courier guaranteeing overnight delivery.
(c) Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the Company and the Holders, including
without limitation and without the need for an express assignment, subsequent
Holders. If any successor, assignee or transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be entitled to receive the benefits hereof and shall be conclusively
deemed to have agreed to be bound by all of the terms and provisions
hereof.
(d) Headings.
The
headings in this Agreement are for the convenience of reference only and shall
not limited or otherwise affect the meaning hereof.
(e) GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF MARYLAND WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PROVISIONS
THEREOF.
(f) Specific
Performance.
The
Company and the Holders acknowledge that there would be no adequate remedy
at
law if any party fails to perform any of its obligations hereunder, and
accordingly agree that the Company and each Holder, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of another under this Agreement
in accordance with the terms and conditions of this Agreement in any court
of
the United States or any State thereof having jurisdictions.
(g) Entire
Agreement.
This
Agreement is intended by the Company as a final expression of its agreement
and
is intended to be a complete and exclusive statement of the agreement and
understanding of the Company in respect of the subject matter contained herein.
This Agreement supersedes all prior agreements and understandings of the Company
with respect to such subject matter.
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IN
WITNESS WHEREOF, the Company has executed this Agreement as of the date first
written above.
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FIRST
INDUSTRIAL REALTY TRUST, INC.
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By:
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Name:
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Title
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