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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
Date of earliest event reported: June 6, 1997
First Industrial Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland 1-13102 36-3935116
(State or other (Reporting File (I.R.S. Employer
jurisdiction of organization) Number) Identification No.)
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 704-9000
(Registrant's telephone number, including area code)
-2-
Item 7. Financial Statements and Exhibits
Exhibit
Number Exhibit
1 Underwriting Agreement dated June 3, 1997 relating to
Depositary Shares each representing 1/100 of a share of
8 5/8% Series C Cumulative Preferred Stock with a
liquidation preference equivalent to $25.00 per
Depositary Share.
4.1 Articles Supplementary to the Amended and Restated Articles
of Incorporation of the Company relating to the Company's
Series C Cumulative Preferred Stock, par value $.01.
4.2 Deposit Agreement dated June 6, 1997 between the Company and
First Chicago Trust Company of New York.
4.3 Form of Stock Certificate for Series C Cumulative Preferred
Stock.
-3-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
----------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
and Secretary
Date: June 6, 1997
Exhibit Index
Exhibit
Number Exhibit
1 Underwriting Agreement dated June 3, 1997 relating to
Depositary Shares each representing 1/100 of a share of
8 5/8% Series C Cumulative Preferred Stock with a
liquidation preference equivalent to $25.00 per
Depositary Share.
4.1 Articles Supplementary to the Amended and Restated Articles
of Incorporation of the Company relating to the Company's
Series C Cumulative Preferred Stock, par value $.01.
4.2 Deposit Agreement between the Company and First Chicago Trust
Company of New York dated June 6, 1997.
4.3 Form of Stock Certificate for Series C Cumulative Preferred
Stock.
2,000,000 Shares
FIRST INDUSTRIAL REALTY TRUST, INC.
Depositary Shares Each Representing 1/100 of a
Share of 85/8% Series C Cumulative Preferred Stock
(Liquidation Preference Equivalent to $25.00 per Depositary Share)
UNDERWRITING AGREEMENT
June 3, 1997
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
as Representatives of the several Underwriters
listed on Schedule I hereto
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Ladies and Gentlemen:
First Industrial Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell 2,000,000 depositary shares each
representing 1/100 of a share of 85/8% Series C Cumulative Preferred Stock
(Liquidation Preference Equivalent to $25.00 per Depositary Share) of the
Company, par value $.01 per share (the "Firm Shares"), to be issued under a
deposit agreement (the "Deposit Agreement") between the Company and First
Chicago Trust Company, as Depositary (the "Depositary") to the several
underwriters named in Schedule I hereto (the "Underwriters") for whom you are
acting as Representatives (the "Representatives"). The Company also proposes to
issue and sell to the several Underwriters not more than 300,000 additional
depositary shares each representing 1/100 of a share of 85/8% Series C
Cumulative Preferred Stock (Liquidation Preference Equivalent to $25.00 per
Depositary Share), par value $.01 per share (the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are herein collectively called the "Shares." The
Shares to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the Series C Preferred Stock.
1. Registration Statement and Prospectus. The Company and 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 called the "Act"), a
registration statement on Form S-3 (Registration No. 333-21873) including a
preliminary prospectus relating to the registration of the Shares and such other
securities which may be offered from time to time by the Company and/or the
Operating Partnership, as the case may be, in accordance with Rule 415 under the
Act. Such registration statement (as amended, if applicable) was declared
effective by the Commission on April 30, 1997. Such registration statement (as
amended, if applicable), on the one hand, and the prospectus constituting a part
thereof and the prospectus supplement relating to the offering of the Shares
provided to the Underwriters by the Company (whether or not such prospectus
supplement is required to be filed with the Commission by the Company pursuant
to the Act) (the "Prospectus Supplement"), on the other hand, including all
documents incorporated therein by reference pursuant to item 12 of Form S-3
under the Act, as from time to time amended or supplemented pursuant to the Act,
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively called the "Exchange Act") are
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a Prospectus Supplement shall be deemed to
have supplemented the Prospectus only with respect to the offering of the Shares
to which it relates. Any registration statement (including any amendment or
supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) of the Act (a "Rule 462(b) Registration Statement")
shall be deemed to be part of the "Registration Statement" as defined herein and
any prospectus or any term sheet as contemplated by Rule 434 of the Act (a "Term
Sheet") (including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be deemed to
be part of the "Prospectus," as defined herein. 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; and all references in
this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even though
not specifically stated, any document filed under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be. Capitalized terms used but not otherwise defined
herein shall have the meanings given to those terms in the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
the Company agrees to issue and sell the Firm Shares and each Underwriter
agrees, severally and not jointly, to purchase from the Company at a price per
share of $24.2125 (the "Purchase Price"), the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Shares increased as set forth in Section 9 hereof).
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares, and the Underwriters shall have the right to
purchase, severally and not jointly, the Additional Shares from the Company at
the Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional Shares
in whole
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or in part from time to time by giving written notice thereof to the Company
within thirty (30) days after the date of this Agreement, provided that if such
thirtieth (30th) day is not a New York Stock Exchange (the "NYSE") trading day,
the thirtieth (30th) day will be the next succeeding NYSE trading day. Such
notice shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof. The
date specified in any such notice shall be a business day (i) no earlier than
the Closing Date (as hereinafter defined), (ii) no later than seven business
days after such notice has been given and (iii) no earlier than two (2) business
days after such notice has been given; unless otherwise agreed upon by the
Underwriters and the Company. If any Additional Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may determine) which bears the same proportion to the total number
of Additional Shares to be purchased from the Company as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I bears to
the total number of Firm Shares (or such number of Firm Shares increased as set
forth in Section 9 hereof).
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering (the "Offering") of their
respective portions of the Shares as soon after the execution and delivery
hereof as in your judgment is advisable (and, if necessary, any post-effective
amendment to the Registration Statement) and (ii) initially to offer the Shares
upon the terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of certificates for,
and payment of the Purchase Price for the Firm Shares shall be made, subject to
Section 9, at 10:00 A.M., New York City time, on the fourth business day (or the
third business day if required under Rule 15c6-1 of the Exchange Act) following
the date hereof, or such other time not later than ten business days after such
date as shall be agreed upon by the Underwriters and the Company (such time and
date of payment and delivery being herein called the "Closing Date") at the
offices of Rogers & Wells, 200 Park Avenue, New York, New York 10166. The
Closing Date and the location of, delivery of and the form of payment for the
Firm Shares may be varied by agreement between you and the Company.
Delivery to the Underwriters of certificates for, and payment of the
Purchase Price for any Additional Shares to be purchased by the Underwriters
shall be made at the offices of Rogers & Wells, 200 Park Avenue, New York, New
York 10166, or at such other place as you shall designate, at 10:00 A.M., New
York City time, on the date specified in the applicable exercise notice given by
you pursuant to Section 2 (an "Option Closing Date"). Any such Option Closing
Date and the location of, delivery of and the form of payment for such
Additional Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date or an applicable Option Closing Date, as
the case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day next preceding
the Closing Date or an applicable Option Closing Date, as the case may be.
Certificates in temporary form evidencing the Shares shall be delivered to you
on the
3
Closing Date or an applicable Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment of the Purchase Price therefor by
intra-bank transfer or wire transfer of same day funds to such account as may be
designated by the Company at least two business days prior to the Closing Date.
Any Underwriter may (but shall not be obligated to) make payment of the Purchase
Price for the Firm Shares or the Additional Shares, if any, to be purchased by
any other Underwriter whose payment has not been received by the Closing Date or
the applicable Option Closing Date, as the case may be, but any such payment
shall not relieve such Underwriter from its obligations hereunder.
5. Agreements of the Company and the Operating Partnership. Each of the
Company and the Operating Partnership severally agrees with you as follows:
(a) In respect of the offering of Shares, the Company will (i) prepare
a Prospectus Supplement setting forth the number of Shares covered thereby
and their terms not otherwise specified in the Prospectus pursuant to which
the Shares are being issued, the names of the Underwriters participating in
the offering and the number of Shares which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Shares 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 Shares, (ii) file the Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act no later than the
Commission's close of business on the second Business Day following the
date of determination of the offering price of the Shares and (iii) furnish
copies of the Prospectus to the Underwriters and to such dealers as you
shall specify in New York City as soon as practicable after the date of
this Agreement in such quantities as you may reasonably request.
(b) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, 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 Act, (iii) the receipt of any comments from the Commission
relating to the Registration Statement, any preliminary prospectus relating
to the Shares, 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 Shares
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
or the Prospectus untrue or which requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. The Company will make every
reasonable effort
4
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.
(c) 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 therein, and to furnish to you such
number of conformed copies of the Registration Statement as so filed and of
each amendment to it and document incorporated by reference therein, 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 EDGAR, except to the extent permitted by Regulation
S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act or the Exchange Act in connection with sales of Shares, not to file
any amendment to the Registration Statement or any Rule 462(b) Registration
Statement or to make any amendment or supplement to the Prospectus or any
Term Sheet, if applicable, 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, Term Sheet, 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 Shares by you, and
to use its 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.
(e) If, at any time when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of Shares, 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 any law, and to furnish to each Underwriter
and to such dealers as you shall specify, such number of copies thereof as
such Underwriter or dealers may reasonably request.
5
(f) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify, register or perfect exemptions for the Shares for
offer and sale by the several Underwriters under the applicable state
securities or Blue Sky laws 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 Shares 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 Shares 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.
(g) To make generally available to the Company's stockholders as soon
as reasonably practicable but not later than sixty (60) days after the
close of the period covered thereby (ninety (90) days in the event the
close of such period is the close of the Company's fiscal year), an
earnings statement (in form complying with the provisions of Rule 158 of
the Act) covering a period of at least twelve (12) months after the
effective date of the Registration Statement (but in no event commencing
later than ninety (90) days after such date) which shall satisfy the
provisions of Section 11(a) of the Act, and, if required by Rule 158 of the
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 earnings statement is released.
(h) During the period of five years after the date of this Agreement,
the Company will furnish to you as soon as available (x) a copy of each
regular and periodic report, financial statement or other publicly
available information of the Company and any of its subsidiaries mailed to
the holders of the Shares or filed with the Commission or any securities
exchange and (y) such other publicly available information concerning the
Company and any of its Subsidiaries as you may reasonably request.
(i) During the period when the Prospectus is required to be delivered
under the Act or the Exchange Act in connection with sales of the Shares,
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.
6
(j) The Company will pay all costs, expenses, fees and taxes incident
to (i) the preparation, printing, filing and distribution under the Act of
the Registration Statement and any amendment thereto (including financial
statements and exhibits), each Preliminary Prospectus, the Prospectus and
all amendments and supplements to any of them prior to or during the period
specified in paragraph 5(c), (ii) the printing and delivery of this
Agreement, the Deposit Agreement and the Blue Sky Memorandum, (iii) the
qualification or registration of the Shares for offer and sale under the
securities, Blue Sky laws or real estate syndication laws of the several
states in accordance with Section 5(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 Shares, (vi) the fee of and the listing of the Shares on the
New York Stock Exchange, Inc. ("NYSE"), (vii) furnishing such copies of the
Registration Statement, the Preliminary Prospectus, the Prospectus and all
amendments and supplements thereto as may be requested for use in
connection with the offering or sale of the Shares by the Underwriters or
by dealers to whom Shares may be sold, (viii) the preparation, issuance and
delivery of certificates for the Shares to the Underwriters, (ix) the costs
and charges of any transfer agent or registrar, (x) the cost and expenses
of the Depositary under the Deposit Agreement, (xi) any expenses incurred
by the Company in connection with a "road show" presentation to potential
investors, (xii) any transfer taxes imposed on the sale by the Company of
the Shares to the Underwriters and (xiii) the fees and disbursements of the
Company's counsel and accountants.
(k) The Company will use its best efforts to maintain the listing of
the Shares on the NYSE for a period of two years after the Closing Date and
thereafter unless the Company's Board of Directors determines that it is no
longer in the best interests of the Company for the Shares to continue to
be so listed.
(l) The Company will use its 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 or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(m) The Company will use the net proceeds received by it from the sale
of the Shares in the manner specified in the Prospectus Supplement under
"Use of Proceeds."
(n) 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.
(o) 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 Shares to
facilitate the sale or resale of any of the Shares in violation of the Act.
7
6. Representations and Warranties of the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to each Underwriter as of the date hereof and 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 Term Sheet to the Prospectus, as of the
date hereof 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 Act
and will contain all statements required to be stated therein in accordance
with the Act. The Prospectus, including the financial statements, schedules
and related notes included or incorporated by reference in the Prospectus,
and if applicable, any Term Sheet to the Prospectus, as of the date hereof
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
the Act and will contain all statements required to be stated therein in
accordance with the Act. On the date the Registration Statement was
declared effective, on the date hereof, 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 its date, 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 Shares, the Company will have complied or will comply with the
requirements of Rule 111 under the 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 Underwriter furnished in
writing to the Company by the Underwriters specifically for inclusion in
the Registration Statement or Prospectus or any amendment or supplement
thereto. The Company has not distributed, and prior to the later of the
Closing Date and the completion of the distribution of the Shares, will not
distribute, any offering material in connection with the offering or sale
of the Shares other than the Registration Statement, the Preliminary
Prospectus (as hereinafter defined), the Prospectus or any other materials,
if any, permitted by the Act (which were disclosed to the Underwriters and
Underwriters' counsel).
8
(c) Each 462(b) Registration Statement, if any, will comply when so
filed in all material respects with all applicable provisions of the Act;
will 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; and the
Prospectus delivered to the Underwriters for use in connection with the
offering of Shares 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 Prospectus pursuant to Item 12 of Form S-3 under the 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
and incorporated by reference in the Prospectus, at the time the
Registration Statement became effective, as of the date of the Prospectus,
and as of the Closing Date, or during the period specified in Section 5(c)
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 Underwriter furnished in writing to the Company
by the Underwriters specifically for inclusion in the Registration
Statement or Prospectus or any amendment or supplement thereto.
(e) 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. Each of the Operating Partnership, 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
Indianapolis, L.P. ("FII"), First Industrial Harrisburg, L.P. ("FIH"),
First Industrial Development Services Group, L.P. ("DSG") and First
Industrial Pennsylvania Partnership, L.P. ("FIP") (the Operating
Partnership, the Financing Partnership, Securities, L.P., the Mortgage
Partnership, FII, FIH, DSG and FIP 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 Finance Corporation
("FIFC"), First Industrial Mortgage Corporation ("FIM"), First Industrial
Pennsylvania Corporation ("FIPC"), First Industrial Indianapolis
Corporation ("FIIC"), First Industrial Harrisburg Corporation ("FIHC"), FI
Development Services Corporation ("FIDSG"), FR Acquisitions, Inc. ("FRA"),
First Industrial Management Corporation ("FIMC," and together with FISC,
FIFC, FIM, FIPC, FIIC, FIHM, FIDSG and FRA are referred to collectively
herein as the "Corporate Subsidiaries," and the Partnership Subsidiaries
and the Corporate Subsidiaries are referred to herein collectively as the
"Subsidiaries"), 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 organization. Other than the Corporate Subsidiaries and the
Partnership
9
Subsidiaries, no entities in which the Company owns any equity securities
constitute, individually or in the aggregate, a "significant subsidiary"
under Rule 1-02 of Regulation S-X 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. FIM 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
FII. FIDSG is a wholly-owned subsidiary of the Company and is the sole
general partner of DSG. The Operating Partnership is the sole limited
partner of each Partnership Subsidiary (except for Securities, L.P.). The
Company and each of the Subsidiaries has, and at the Closing Date and, if
later, an Option Closing Date, will have, full corporate or partnership
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 Registration Statement
or the Prospectus and the transactions contemplated hereby and thereby. The
Company and each of the Corporate Subsidiaries is, and at the Closing Date
or, if later, an Option 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 Company and its
Subsidiaries, taken as whole or on the 430 in service properties owned,
directly or indirectly, by the Company as of March 31, 1997 (the
"Properties"), (ii) the issuance, validity or enforceability of the shares
or the enforceability of the Deposit Agreement or (iii) the consummation of
any of the transactions contemplated by this Agreement and/or the Deposit
Agreement (a "Material Adverse Effect"), which jurisdictions of foreign
qualification or registration are attached on Schedule II hereto. Each of
the Partnership Subsidiaries is, and at the Closing Date or, if later, an
Option 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 qualifications
or registration will not have a Material Adverse Effect, which
jurisdictions of foreign qualification or registration are attached on
Schedule II hereto. Complete and correct copies of the articles of
incorporation and of the by-laws of the Company and the charter documents,
partnership agreements and other organizational documents of the
Subsidiaries and all amendments thereto as have been requested by the
Underwriters or their counsel have been delivered to the Underwriters or
their counsel.
(f) 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
10
$.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 Shares 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 Shares have been
duly authorized for listing on the NYSE, subject to official notice of
issuance. The description of the Shares, 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 Shares in accordance herewith, each of the Underwriters
will receive good, valid and marketable title to the Shares, 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
Shares will be in due and proper form and will comply, in all material
respects, with all applicable legal requirements and the requirements of
the NYSE. 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.
(g) As of the Closing Date, the partnership agreement of the Operating
Partnership will have been duly authorized, executed and delivered by the
Company, as the general partner and as a limited partner and the
partnership agreement of each Partnership Subsidiary, other than the
Operating Partnership, will have been duly authorized, validly executed and
delivered by each partner thereto and is valid, legally binding and
enforceable in accordance with its terms 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; immediately following the Closing Date,
all of the issued and outstanding shares of capital stock of each Corporate
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 by the Company or the Operating Partnership,
free and clear of all security interests, liens and encumbrances, (except
for pledges in connection with the loan agreements of the Company and the
Subsidiaries) and all of the partnership interests in each Partnership
Subsidiary will have been duly authorized and 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 encumbrances (except for pledges in
connection with the loan agreements of the Company and the Subsidiaries).
11
(h) The financial statements, supporting schedules and related notes
included, or incorporated by reference, in the Registration Statement 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 or incorporated by reference in the
Registration Statement 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 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 Prospectus, pro forma
and/or as adjusted financial information included in the Prospectus has
been prepared in accordance with the applicable requirements of the 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 or incorporated by reference therein at the
respective dates indicated and the results of operations and cash flows for
the respective periods specified. The Company's ratio of earnings to fixed
charges and preferred dividend requirements included in the Prospectus and
in Exhibit 12 to the Registration Statement 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, or any predecessor of
the Company are required by the Act or the Exchange Act to be included in
the Registration Statement or the Prospectus. Coopers & Lybrand L.L.P. (the
"Accountants") who have reported on such financial statements, schedules
and related notes, are independent public accountants with respect to the
Company as required by the Act.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement 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 and the Prospectus,
any change in the capitalization, long term or short term debt or in the
capital stock or equity of the Company or any of its Subsidiaries which
would be material to the Company and its Subsidiaries considered as one
enterprise (anything which would be material to the Company and its
Subsidiaries, considered as one enterprise, being hereinafter referred to
as "Material"), (ii) except as described in the Prospectus, neither the
Company nor any of its 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 transactions, other than pursuant to this Agreement and the
transactions referred to herein or as contemplated in the Prospectus, which
would be Material, (iii) there has not been any Material Adverse Effect,
and (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
12
the shares of the Company's (a) Series A Preferred Stock, par value $.01
per share (the "Series A Preferred Stock") and (b) Depositary Shares each
representing 1/100 of a Share of 8 3/4 Series B Preferred Stock (the
"Series B 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.
(j) Neither the Company nor any of its Subsidiaries is, or as of the
Closing Date or, if later, an Option Closing Date, will be, required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(k) To the knowledge of the Company, except as set forth in the
Registration Statement and the Prospectus, there are no actions, suits,
proceedings, investigations or inquiries pending or, after due inquiry,
threatened against or affecting the Company or any of its 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.
(l) The Company and each of its Subsidiaries (i) has, and at the
Closing Date or, if later, an Option 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
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) is not, and at the Closing Date or, if later,
an Option 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 Company
and each of its 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. Neither the Company nor any of its Subsidiaries is, nor at the
Closing Date or, if later, an Option 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.
(m) 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 Shares hereunder except such as have been obtained under the Act and
the Exchange Act and such as may be required
13
under state securities, Blue Sky or real estate syndication laws, or the
by-laws, the corporate financing rule or the conflict of interest rule of
the NASD or the requirements of the NYSE in connection with the purchase
and distribution by the Underwriters of the Shares or such as have been
received prior to the date of this Agreement, and except for the filing of
this Agreement and the Deposit Agreement with the Commission as exhibits to
a Form 8-K, which the Company agrees to make in a timely manner.
(n) The Company and the Operating Partnership have full corporate or
partnership power, as the case may be, to enter into this Agreement and the
Deposit Agreement, to the extent each is a party thereto. Each of this
Agreement and the Deposit Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, to the
extent each is a party thereto and constitutes a valid and binding
agreement of the Company and the Operating Partnership, to the extent each
is a party thereto, and assuming due authorization, execution and delivery
by the Underwriters, is enforceable, against the Company and the Operating
Partnership, to the extent each is a Party thereto, in accordance with the
terms hereof 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 and the
consummation of the transactions contemplated hereby and the compliance by
each of the Company and the Subsidiaries with their obligations hereunder,
will not result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets or properties of the Company or any of
its 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,
the certificate of incorporation, by-laws, partnership agreement or other
organizational documents of the Company or any of its Subsidiaries, any
Contract or Other Agreement to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries or any of
their assets or properties are bound or affected, or violate or conflict
with 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 Company or any of its
Subsidiaries or to the Properties, in each case 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.
(o) As of the Closing Date or, if later, an Option Closing Date, the
Company and each of its subsidiaries will have good and marketable title to
all Material properties and assets described in 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 or
the Prospectus, or such as secure the loan facilities of the Company and
the Subsidiaries, or would not result in a Material Adverse Effect.
14
(p) 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.
(q) The Company and the Partnership Subsidiaries have property, title,
casualty and liability insurance in favor of 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 Company and the Partnership Subsidiaries except in such
instances where the tenant is carrying such insurance or the tenant is
self-insuring such risks.
(r) Except as disclosed in the Prospectus, and, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect; (A) to the knowledge of the Company and its Subsidiaries, after due
inquiry, the operations of the Company and its 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; (B) to the knowledge
of the Company and its Subsidiaries, after due inquiry, none of the Company
or its 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; (C) none of the
Company or its 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; (D)
none of the Company or its 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 into the Environment on, in,
under or from any Property; and (E) no Property is included or, to the
knowledge of the Company and its 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 Company and its Subsidiaries has actual knowledge that
any Property has otherwise been
15
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.
ss. 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. ss.
9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as
amended (42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended (15
U.S.C. ss. 2601, et seq.), the Occupational Safety and Health Act of 1970,
as amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 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 Company or any of its Subsidiaries, and none of them nor
any of their directors, officers or employees is connected with the Company
or any of its Subsidiaries as a promoter, selling agent, voting trustee,
director, officer or employee.
16
(s) The Company and its Subsidiaries are organized and operate in a
manner so as to qualify as a real estate investment trust (the "REIT")
under Sections 856 through 860 of the Code, as amended (the "Code"), and
have elected to be taxed as a REIT under the Code commencing with the
taxable year ending December 31, 1994. The Company and its Subsidiaries
intend to continue to qualify as a REIT for the foreseeable future.
(t) There is no document or contract of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement which is not
described or filed as required, except for the filing of this Agreement and
the Deposit Agreement 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.
(u) On the Closing Date, the Shares will be duly authorized for
listing on the NYSE subject to official notice of issuance.
(v) None of the Company or any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company or its Subsidiaries,
after due inquiry, is any such dispute threatened which would have a
Material Adverse Effect.
(w) The Company and its 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,
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 Company and its Subsidiaries, of
such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(x) The Company and each of its 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.
(y) Each of the Partnership Subsidiaries is properly treated as a
partnership for federal income tax purposes and not as a "publicly traded
partnership."
(z) No relationship, direct or indirect, exists between or among the
Company or the Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or the Subsidiaries on
the other hand, which is required by the Act to be described in the
Registration Statement and the Prospectus which is not so described;
17
(aa) 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
Shares, and the Company has not distributed and have agreed not to
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares 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);
(ab) 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;
(ac) The Shares will have the following investment grade ratings from
each of Standard & Poor's Corporation ("S&P") ("BBB-"), Moody's Investors
Service, Inc. ("Moody's") ("baa3"), Fitch Investors Services, L.P.
("Fitch") ("BBB") and Duff & Phelps ("D&P") ("BBB-"), at each applicable
Representation Date;
(ad) 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, threatened
by the Commission or by the state securities authority of any jurisdiction.
No order preventing or suspending the use of the 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; and
(ae) Any certificate or other document signed by any officer or
authorized representative of the Company or any Subsidiary, and delivered
to the Underwriters or to counsel for the Underwriters in connection with
the sale of the Shares shall be deemed a representation and warranty by
such entity or person, as the case may be, to each Underwriter as to the
matters covered thereby.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you and each other Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus or in the Registration
Statement or the Prospectus or in any amendment or supplement thereto, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
not misleading, except insofar as such losses, claims,
18
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Underwriter to any person if a copy
of the Prospectus shall not have been delivered or sent to such person within
the time required by the Act and the regulations thereunder, and the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus, provided that the Company has delivered the Prospectus to the
several Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be in addition to
any liability which the Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all fees and expenses. Such Underwriter or any such controlling person shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Underwriter or such controlling person
unless (i) the Company has agreed in writing to pay such fees and expenses, (ii)
the Company has failed to assume the defense and employ counsel, or (iii) the
named parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and the
Company and such Underwriter or such controlling person shall have been advised
by its counsel that representation of such indemnified party and the Company by
the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf of such Underwriter or such controlling
person). It is understood, however, that the Company shall, in connection with
any one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters and controlling persons not
having actual or potential differing interests with you or among themselves,
which firm shall be designated in writing by Smith Barney Inc., and that all
such fees and expenses shall be reimbursed as they are incurred. The Company
shall not be liable for any settlement of any such action, suit or proceeding
effected without its written consent, but if settled with such written consent,
or if there be a final judgment for the plaintiff in any such action, suit or
proceeding, the Company agrees to indemnify and hold harmless any Underwriter,
to the extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
19
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, or any such controlling person based on
the Registration Statement, the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph (c), such Underwriter shall
have the rights and duties given to the Company by paragraph (b) above (except
that if the Company shall have assumed the defense thereof, such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officer, and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters may
otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Shares, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand 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 on the one hand or by the Underwriters on the other hand
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a 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 paragraph (d) above. The
20
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price of the Shares underwritten by it and distributed to the public
exceeds the amount of any damages which 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 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 numbers of Firm Shares set forth opposite their
names in Schedule I hereto (or such numbers of Firm Shares increased as set
forth in Section 9 and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriters' Obligations. The several obligations of the
Underwriters to purchase the Firm Shares and the Additional Shares, as the case
may be, under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the Company and the Operating
Partnership contained in this Agreement shall be true and correct, in all
material respects, on the Closing Date, with the same force and effect as if
made on and as of the Closing Date; and as of an Option Closing Date, if any, to
the knowledge of the Company and the Operating Partnership, such representations
and warranties were true and correct, in all Material respects, as of the date
of this Agreement and on the Closing Date. On or before any Option Closing Date,
if any, the Company shall disclose to the Underwriters the information which
would make
21
such representations and warranties not true and correct, in all Material
respects, as of such Option Closing Date and the Company 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.
(b) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the Act; the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by such Rule; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or threatened by the Commission to the knowledge, after due inquiry, of
the Company. No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that 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.
(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 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
adverse 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 your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares 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, 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 and on and as of
any applicable Option Closing Date, as the case may be, a certificate signed by
the Chairman of the Board of Directors or President or Chief Executive Officer
of the Company and the Chief Financial or Accounting 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;
(f) You shall have received on the Closing Date and, if later, an Option
Closing Date an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated
22
the Closing Date, and the Option Closing Date, as the case may be, of Cahill
Gordon & Reindel, 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 identified with an asterisk in Schedule II hereto. Each of the
Corporate Subsidiaries is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction identified with an asterisk in Schedule II hereto.
(ii) 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. Each of the Partnership Subsidiaries has all
requisite partnership power and authority to own, lease and operate its
properties and other assets, 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. Each of the Partnership
Subsidiaries is duly qualified or registered as a foreign partnership and
is in good standing in each jurisdiction identified with an asterisk in
Schedule II hereto.
(iii) To the knowledge of such counsel, other than the Additional
Shares, 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 other than as provided in this
Agreement, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for shares of preferred stock of the Company. To the knowledge of
such counsel, no shares of capital stock of any of the Corporate
Subsidiaries are reserved for any purpose, and there are no outstanding
securities convertible into or exchangeable for any capital stock of the
Corporate Subsidiaries, and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
capital stock or any other securities of the Corporate Subsidiaries, except
as disclosed in the Prospectus. To the knowledge of such counsel, all of
the outstanding partnership interests of the Operating Partnership, the
Financing Partnership, Securities, L.P. and the Mortgage Partnership have
been duly authorized, validly issued and fully paid and, except for Units
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, the Financing Partnership, Securities, L.P., FISC,
FIFC, FIMC or the Mortgage Partnership is in violation of or default under
its charter, by-laws, 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 contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other instrument 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 or any Property is
subject to or bound by, (it being understood that such counsel need express
no opinion with respect to matters relating to any contract,
23
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
the Properties) except in each case for violations or defaults which in the
aggregate are not reasonably expected to have a Material Adverse Effect.
(v) Each of this Agreement and the Deposit Agreement was duly and
validly authorized, executed and delivered by each of the Company and the
Operating Partnership.
(vi) The execution and delivery of this Agreement and the Deposit
Agreement, the issuance and sale of the Shares, the performance of the
obligations set forth herein and therein by the Company and the Operating
Partnership of their respective obligations 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 Act and the state
securities, Blue Sky or real estate syndication laws in connection with the
purchase and distribution of the Shares by the Underwriters) and did not
and do not conflict with or constitute a breach or violation of or default
under: (1) any contract, indenture, mortgage, loan agreement, note, lease,
joint venture or partnership agreement or other instrument or agreement 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; (2) the certificate of limited partnership or
partnership agreement, as the case may be, of the Operating Partnership and
the Partnership Subsidiaries or the articles of incorporation or bylaws, as
the case may be, of the Company and the Corporate Subsidiaries; (3) any
applicable law, rule or administrative regulation of the United States or
the State of Delaware; or (4) any order or administrative or court decree
of which such counsel is aware, except in each case for conflicts,
breaches, violations or defaults that in the aggregate are not reasonably
expected to have a Material Adverse Effect.
(vii) 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 Shares hereunder, except such as may be required under the
Act or the by-laws, corporate financing rule and conflict of interest rule
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.
(viii) 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 and supporting schedule and other
financial and statistical data included or incorporated by reference
therein, as to which no opinion need be rendered), complied as to form in
all material respects with the requirements of the Act and the Exchange
Act.
24
(ix) Each of the Underwriters is receiving good, valid and marketable
title to the Shares, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities if the Underwriters
acquire such Shares in good faith and without notice of any such security
interests, mortgages, pledges, liens, encumbrances, claims or equities.
(x) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those disclosed
therein.
(xi) The information in the Prospectus Supplement under "Description
of Series C Preferred Shares and Depositary Shares" and "Certain Federal
Income Tax Considerations" and in the Prospectus under "Risk Factors,"
"Description of Debt Securities," "Description of Preferred Stock,"
"Description of Depository Shares," "Description of Common Stock,"
"Restrictions on Transfers of Capital Stock" and "Federal Income Tax
Considerations," 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 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 Prospectus or to be filed as exhibits thereto by the Act
other than those described or referred to therein or filed as exhibits
thereto, and the descriptions thereof or references thereto are accurate in
all material respects.
(xiii) The Shares have been approved for listing on the NYSE subject
to official notice of issuance.
(xiv) The partnership agreement of each Partnership Subsidiary has
been duly authorized, validly executed and delivered by each of the Company
and the 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 of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(xv) 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.
25
(xvi) The documents filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules therein and other financial and
statistical data, as to which no opinion need be rendered), when they were
filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder.
(xvii) The Company and the Operating Partnership satisfy all
conditions and requirements for filing the Registration Statement on Form
S-3 under the Act.
(xviii) None of the Company, the Corporate Subsidiaries or the
Partnership Subsidiaries is required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
In addition, Cahill Gordon & Reindel shall confirm that the opinion filed
as Exhibit 8 to the Registration Statement is true and correct as of the date
thereof and shall authorize the Underwriters to rely on such opinion as if it
were addressed to the Underwriters.
In addition, Cahill Gordon & Reindel shall state that they have
participated in conferences with officers and other representatives of the
Company, the Operating Partnership and the Subsidiaries, representatives of the
independent public accountants for the Company, the Operating Partnership and
the Subsidiaries and representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus and related matters were
discussed. On the basis thereof, 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 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 such 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 or (ii) the Prospectus, as of its
date or at the Closing Date, or, if later, an Option 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 (it being understood
that such counsel need express no opinion with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus).
In giving its opinion, such counsel may rely (A) as to all matters of fact,
upon certificates and written statements of officers, directors, partners and
employees of and accountants for each of the Company, the Corporate Subsidiaries
and the Partnership Subsidiaries, (B) as to matters of Maryland law, on the
opinion of McGuire, Woods, Battle & Boothe, L.L.P., Baltimore, Maryland, which
opinion shall be in form and substance reasonably satisfactory to counsel for
the Underwriters, (C) as to matters of Illinois law, on the opinion of Barack
Ferazzano Kirschbaum & Perlman, Chicago, Illinois, which opinion shall be in
form and substance reasonably satisfactory to counsel for the Underwriters, and
(D) as to the good standing and
26
qualification of the Company, the Corporate Subsidiaries and the Partnership
Subsidiaries to do business in any state or jurisdiction, upon certificates of
appropriate government officials or opinions of counsel in such jurisdictions.
Counsel need express no opinion (i) as to the enforceability of forum selection
clauses in the federal courts or (ii) with respect to the requirements of, or
compliance with, any state securities, Blue Sky or real estate syndication laws.
(g) You shall have received on the Closing Date and, if later, an Option
Closing Date, an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, and the Option Closing Date, as the case
may be, of McGuire, Woods, Battle & Boothe, L.L.P., 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.
(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 Shares has 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. To
the extent Maryland law provides the basis for determination, each of the
Underwriters is receiving good, valid and marketable title to the Shares,
free and clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities if the Underwriters acquire such Shares
in good faith and without notice of any such security interests, mortgages,
pledges, liens, encumbrances, claims or equities. The terms of the Shares
conform in all material respects to all statements and descriptions related
thereto contained in the Registration Statement and Prospectus. The form of
depositary receipt used to evidence the Shares are in due and proper form
and comply in all material respects with all applicable legal requirements
and with the requirements of the NYSE. The issuance of the Shares is not
subject to any preemptive or other similar rights arising under Maryland
General
27
Corporation Law, the Company's charter or by-laws, as amended to date, or
any agreement of which such counsel is aware.
(v) This Agreement was duly and validly authorized and executed by the
Company.
(vi) The execution and delivery of this Agreement and the Deposit
Agreement and the performance of the obligations and the consummation of
the transactions 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 Act or other securities laws) and did not and do not
conflict with or constitute a breach or violation of or default under: (1)
the charter or by-laws, as the case may be, of the Company; (2) any
applicable Maryland law, rule or administrative regulation or any order or
administrative or court decree of which 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.
(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 Shares hereunder, except such as may be required
under Maryland securities, blue sky or real estate syndication laws.
(viii) The information in the Prospectus under "Description of Common
Stock," "Certain Provisions of Maryland Law and the Company's Articles of
Incorporation and Bylaws" and "Restrictions on Transfers of Capital 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 or such Corporate Subsidiary, as the case may be, is the
general partner.
(h) You shall have received on the Closing date and, if later, an Option
Closing Date, an opinion or opinions (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, or the Option Closing Date, as the case
may be, of Barack Ferrazzano Kirschbaum, Perlman & Nagelberg, special Illinois
counsel for the Company, to the effect that:
(i) To the knowledge of such counsel, none of the Company, FRA, the
Operating Partnership, FIMC, the Mortgage Partnership, FIH, FII, FIHC and
FIIC is in violation of or in default in connection with the performance or
observance of any obligation, agreement, covenant or condition contained in
any or all of (a) the
28
documentation evidencing and/or securing (1) a certain unsecured term loan
made available to the Operating Partnership by Union Bank of Switzerland,
New York Branch, (2) a certain loan made available to Harrisburg, L.P. by
ORIX USA, Inc., (3) a certain mortgage loan made available to the Financing
Partnership by Nomura Asset Capital Corporation, (4) a certain mortgage
loan made available to the Mortgage Partnership by Nomura Asset Capital
Corporation, and (5) a certain revolving credit facility made available to
the Operating Partnership by The First National Bank of Chicago and the
Union Bank of Switzerland, New York Branch, (6) the assumption by the
Operating Partnership of a certain mortgage loan from PFL Life Insurance
Company made available to Fourth Brookville Associates Limited Partnership;
(7) the assumption by the Operating Partnership of a certain loan from
Monumental Life Insurance Company made available to Lincoln Center
Associates Limited Partnership; (8) the origination of a certain mortgage
loan made available to FII by Connecticut General Life Insurance Company
("CIGNA"); (9) the origination of a certain mortgage loan made available to
the Operating Partnership by CIGNA; (10) the acquisition of property by the
Operating Partnership subject to a certain mortgage loan from Smithkline
Beecham Clinical Laboratories, Inc. made available to 290 Industrial Co.,
LLC; and (11) the acquisition of property by the Operating Partnership
subject to a certain mortgage loan from Patomi Realty Co. made available to
Lazarus Burman Associates (such documentation, collectively, the "Credit
Documents") and (b) various pending agreements of purchase and sale into
which FR Acquisitions, Inc. has entered into for the purchase of certain
real properties (collectively, the "Pending Contracts"), 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 and the Deposit
Agreement and the performance of the obligations and the consummation of
the transaction 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) the Credit Documents and the
Pending Contracts; (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 the Company, the Operating Partnership, FIMC, the
Mortgage Partnership, FIH, FII, FIHC, or FIIC, 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 that do, or are likely to,
have a Material Adverse Effect.
(iv) The information in the Prospectus Supplement under "Prospectus
Supplement Summary - Recent Developments -Debt Financing", and in the 10-K
under Item 2 "The Properties, - Mortgage Loans" (except for the 1994
Mortgage Loan) 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
29
counsel and is correct in all material respects and presents fairly the
information disclosed therein.
(i) You shall have received on the Closing Date and the Option Closing
Date, as the case may be, an opinion, dated the Closing Date and the Option
Closing Date, as the case may be, of Rogers & Wells, counsel for the
Underwriters, as to the matters referred to in clause (i) (with respect to the
Company only) and (iv) (with respect to the first and last sentences only) of
Section 8(g) and clauses (v) and (viii) of Section 8(f) and in addition, Rogers
& Wells shall make statements similar to those contained in the second paragraph
following clause (xviii) of Section 8(f) hereto and shall be entitled to rely on
those persons described in the third paragraph following clause (xviii) Section
8(f) hereto with respect to the matters described therein.
(j) At the Closing Date, the Shares shall have the ratings accorded by the
"nationally recognized statistical organizations," as defined by the Commission
for purposes of Rule 436(g)(2) under the Act, as specified in Section 6(ac)
hereto, and the Company shall have delivered to Smith Barney Inc. a letter,
dated as of such date, from each such rating organization, or other evidence
satisfactory to Smith Barney Inc., confirming that the Shares have such ratings.
Since the date hereof, there shall not have occurred a downgrading in the rating
assigned to the Shares 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 Shares or any
of the Company's securities or the Operating Partnership's other securities.
(k) On the date hereof or such other date as the Underwriters may agree to,
Coopers & Lybrand L.L.P. 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 public accountants with respect to the Company and its
Subsidiaries as required by the Act and with respect to the financial and other
statistical and numerical information contained in the Registration Statement
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 and, as to the Additional Shares, at any
Option Closing Date, Coopers & Lybrand L.L.P. 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 and the applicable
Option Closing Date, as the case may be, 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 and the applicable Option Closing Date, as the case may be.
(l) At the Closing Date, the Shares shall have been approved for listing on
the NYSE upon official notice of issuance.
(m) The Company and its Subsidiaries shall not have failed at or prior to
the Closing Date and any applicable Option Closing Date, as the case may be, to
perform or comply with any of the agreements pursuant to Section 5 herein
contained and required to be performed
30
or complied with by the Company at or prior to the Closing Date and the Option
Closing Date, as the case may be.
(n) At the Closing Date and, if later, at any applicable Option 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 Shares, 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 Company in connection with
the issuance and sale of the Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
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 Rogers & Wells, counsel for the
Underwriters.
9. Effective Date of Agreement; Termination; Default by One or More
Underwriters. This Agreement shall become effective upon the execution of this
Agreement.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Company if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been a Material Adverse Effect, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and would, in your judgment, make it impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus or to enforce
contracts for the resale of the Shares, (iii) the suspension or material
limitation of trading in securities on the NYSE or the American Stock Exchange
or material limitation on prices for securities on either of such exchanges,
(iv) the enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other governmental
authority which in your opinion would result in a Material Adverse Effect, (v)
the declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an applicable Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of Firm Shares or
Additional Shares, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the non-defaulting
Underwriters, have agreed to purchase, or in such other proportion as you
31
may specify, to purchase the Firm Shares or Additional Shares, as the case may
be, which such defaulting Underwriter or Underwriters, as the case may be,
agreed but failed or refused to purchase on such date; provided that in no event
shall the number of Firm Shares or Additional Shares, as the case may be, which
any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such number of
Firm Shares or Additional Shares, as the case may be, without the written
consent of such Underwriter. If on the Closing Date or on an applicable Option
Closing Date, as the case may be, any Underwriter or Underwriters shall fail or
refuse to purchase Firm Shares, or Additional Shares, as the case may be, and
the aggregate number of Firm Shares or Additional Shares, as the case may be,
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares or Additional Shares, as the case may be, to be
purchased on such date by all Underwriters and arrangements satisfactory to you
and the Company for purchase of such Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date or the applicable Option Closing Date, as
the case may be, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of any such Underwriter under this Agreement.
10. Information Furnished by the Underwriters. The names of the
Underwriters set forth on the cover page, the stabilization legend on the inside
front cover, and the statements in the chart and the third, sixth and seventh
(with respect to the last sentence only) paragraphs under the caption
"Underwriting" in the Prospectus, constitute the only information furnished by
or on behalf of the Underwriters through you as such information is referred to
in Section 7.
11. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to First
Industrial Realty Trust, Inc., 150 North Wacker Drive, Suite 150, Chicago,
Illinois 60606, Attention: Michael T. Tomasz, with a copy to Cahill Gordon &
Reindel, 80 Pine Street, New York, New York 10005, Attention of Gerald S.
Tanenbaum, Esq. and (b) if to you, c/o Smith Barney Inc., 388 Greenwich Street,
New York, New York 10013, Attention: Manager, Investment Banking Division, with
a copy to Rogers & Wells, 200 Park Avenue, New York, New York 10166, Attention
of Robert E. King, Jr., or in any case to such other address as the person to be
notified may have requested in writing.
The provisions of Sections 5, 6 and 7 shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Company, the
officers or directors of the Company or any controlling person of the Company
and (ii) acceptance of the Shares and payment for them hereunder.
In the event of termination of this Agreement, the provisions of Sections
5(k) and 7 shall remain operative and in full force and effect.
32
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company or the Operating Partnership to
comply with the terms or to fulfill any of the conditions of this Agreement, the
Company and the Operating Partnership agree to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Company, the Operating
Partnership and the Underwriters, any controlling persons referred to herein and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York applicable to contracts made and to be performed in New
York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
33
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Operating Partnership, and the several Underwriters.
Very truly yours,
FIRST INDUSTRIAL REALTY TRUST, INC.
By:/s/ Michael W. Brennan
-----------------------------------
Name: Michael W. Brennan
Title: Chief Operating Officer
and Director
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
as its sole general partner
By:/s/ Michael W. Brennan
-----------------------------------
Name: Michael W. Brennan
Title: Chief Operating Officer
and Director
SMITH BARNEY INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
As representatives of the
several Underwriters listed
on Schedule I hereto
By: SMITH BARNEY INC.
By: /s/ John Herbert
-----------------------------------
Name: John Herbert
Title: Managing Director
34
SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
------------ ---------------
Smith Barney Inc........................................ 613,000
Donaldson, Lufkin & Jenrette
Securities Corporation................................ 613,000
Prudential Securities Incorporated...................... 612,000
A.G. Edwards & Sons, Inc................................ 18,000
BT Securities Corporation............................... 18,000
Dain Bosworth Incorporated.............................. 18,000
EVEREN Securities, Inc.................................. 18,000
First of Michigan Corporation........................... 18,000
J.P. Morgan Securities Inc.............................. 18,000
Morgan Keegan & Company, Inc............................ 18,000
Rauscher Pierce Refsnes, Inc............................ 18,000
The Robinson-Humphrey Company, Inc...................... 18,000
Total....................................... =========
2,000,000
35
SCHEDULE II
JURISDICTIONS OF FOREIGN QUALIFICATION OF THE COMPANY,
THE CORPORATE SUBSIDIARIES AND THE PARTNERSHIP SUBSIDIARIES
ENTITY: JURISDICTION
- ------- ------------
First Industrial, L.P. Alabama
Georgia*
Illinois*
Indiana*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Jersey*
New York*
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Realty Trust, Inc. Alabama
Georgia*
Illinois*
Indiana*
Michigan*
Minnesota*
New Jersey*
New York*
Ohio
First Industrial Securities, L.P. Illinois
Michigan
Minnesota
Pennsylvania
First Industrial Securities Corporation Illinois
Michigan
First Industrial Pennsylvania Partnership, L.P. Pennsylvania
First Industrial Pennsylvania Corporation Pennsylvania
First Industrial Harrisburg, L.P. Pennsylvania
36
First Industrial Harrisburg Corporation Pennsylvania
First Industrial Financing Partnership, L.P. Alabama
Georgia*
Illinois*
Iowa
Kansas
Michigan*
Minnesota*
Missouri
New Hampshire
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial Finance Corporation Alabama
Georgia*
Illinois*
Michigan*
Wisconsin
First Industrial Management Corporation Alabama
Georgia
Illinois
Indiana
Iowa
Kansas
Michigan
Minnesota
Missouri
New Hampshire
Ohio
Pennsylvania
Tennessee
Texas
Wisconsin
First Industrial (Atlanta) Management Corporation Georgia
Illinois
37
FR Acquisitions, Inc. Georgia
Illinois
Indiana
Michigan
Minnesota
Missouri
Ohio
Pennsylvania
Tennessee
Wisconsin
First Industrial Mortgage Partnership, L.P. Georgia*
Illinois*
Michigan*
Minnesota*
Missouri
Tennessee
First Industrial Mortgage Corporation Illinois
Michigan
First Industrial Indianapolis, L.P. Indiana
First Industrial Indianapolis Corporation None
First Industrial Development Services Group, L.P. None
FI Development Services Corporation None
- --------------------------
* Denotes jurisdictions on which counsel is opining.
38
8 5/8% Series C Cumulative Preferred Stock
(Liquidation Preference $2,500 Per Share)
ARTICLES SUPPLEMENTARY
FIRST INDUSTRIAL REALTY TRUST, INC.
----------------------------
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
8 5/8% Series C Cumulative Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
----------------------------
Dated as of June 6, 1997
FIRST INDUSTRIAL REALTY TRUST, INC.
----------
Articles Supplementary of Board of Directors Classifying
and Designating a Series of Preferred Stock as
8 5/8% Series C Cumulative 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 and March
4, 1997 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. The Special Committee
pursuant to a resolution dated June 2, 1997 (i) authorized the creation and
issuance of up to 23,000 shares of Series C Cumulative 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 the Dividend Rate (which rate shall
be 8 5/8%) payable on such series. Such preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption, number of shares and
Dividend Rate, 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 8 5/8% Series C Cumulative Preferred Stock (the "Series C
-2-
Preferred Shares") and the number of shares which shall constitute such series
shall not be more than 23,000 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.
Section 2. Dividend Rights. (1) Dividends shall be payable in cash on the
Series C 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 October 1, 1997, 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 October 1, January 1, April 1, and July 1 in each year (each, a
"Dividend Period Commencement Date"), commencing on October 1, 1997, and shall
end on and include the day next preceding the next Dividend Period Commencement
Date, at a rate per annum equal to 8 5/8% of the liquidation preference thereof
(the "Dividend Rate"). Dividends on each Series C 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 September 30, 1997 or, in the case of Series C Preferred Shares
with a Deemed Original Issue Date after September 30, 1997, 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 C 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 the then current Dividend Period,
-3-
has been paid to holders of record of Series C 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 C
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 C Preferred Shares or part of a subsequent
issuance of Series C Preferred Shares prior to October 1, 1997, the date of such
first issuance and (b) in the case of any share which is part of a subsequent
issuance of Series C Preferred Shares on or after October 1, 1997, the later of
(x) October 1, 1997 and (y) the latest Dividend Period 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 October 1,
1997, 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 C 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 C 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 C Preferred Shares
and any other series of preferred stock of the Company ranking on a parity
therewith as to dividends, (or, in the case of the Company's Series A Preferred
Shares, payments in lieu thereof are not made under that certain Guarantee and
Payment Agreement dated November 17, 1995 between First Industrial Securities,
L.P., a Delaware limited partnership and First Industrial Securities Corporation
for the benefit of American National Bank and Trust Company of Chicago for the
holders of the Series A Preferred Shares (the "Guarantee")), all dividends
declared upon the Series C Preferred Shares and any other series of preferred
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 C Preferred Shares and such other series of
-4-
preferred stock shall in all cases bear to each other that same ratio that the
accumulated dividends per share on the Series C Preferred Shares and such other
series of preferred stock (less, in the case of the Series A Preferred Shares,
payments under the Guarantee in lieu of such dividends) bear to each other.
Except as provided in the preceding sentence, unless an amount equal to full
cumulative dividends on the Series C Preferred Shares has been paid to holders
of record of Series C 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 C Preferred Shares as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment nor (except pursuant to the Guarantee with respect to the Series A
Preferred Shares) 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 C Preferred Shares as to dividends or upon liquidation.
Unless an amount equal to full cumulative dividends on the Series C Preferred
Shares has been paid to holders of record of Series C 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 C 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 C Preferred
Shares as to dividends and upon liquidation and except pursuant to the Guarantee
with respect to the Series A Preferred Shares.
Section 3. Liquidation. (1) In the event of any voluntary or involuntary
liquidation, dissolution, or winding up of the Company, the holders of Series C
Preferred Shares are entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution of assets is
made to holders of Common Stock or any other class or series of shares ranking
junior to the Series C Preferred Shares upon liquidation, liquidating
distributions in the amount of the stated value of $2,500 per share, plus all
accumulated and unpaid dividends (whether or not earned or declared) for the
then current and all past Dividend Periods.
-5-
If, upon any voluntary or involuntary liquidation, dissolution, or winding up of
the Company, the amounts payable with respect to the Series C Preferred Shares
and any other shares of the Company ranking as to any such distribution on a
parity with the Series C Preferred Shares are not paid in full, the holders of
Series C 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 C 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 C 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 (9) below, the
Series C Preferred Shares are not redeemable prior to June 6, 2007. On and after
such date, the Series C 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 $2,500 per share, plus all accumulated
and unpaid dividends (whether or not earned or declared) to the date of
redemption.
(2) If fewer than all of the outstanding Series C 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 avoid redemption of fractional shares) or by lot in
a manner determined by the Board of Directors.
-6-
(3) Notwithstanding the foregoing, if an amount equal to full dividends for
all past Dividend Periods on the Series C Preferred Shares has not been paid to
holders of record of Series C Preferred Shares entitled to receive dividends as
set forth above by the Company, no Series C Preferred Shares shall be redeemed,
except pursuant to Article IX of the Charter, unless all outstanding Series C
Preferred Shares are simultaneously redeemed, and the Company shall not purchase
or otherwise acquire, directly or indirectly, any Series C Preferred Shares;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Series C Preferred Shares pursuant to a purchase or exchange
offer provided such offer is made on the same terms to all holders of Series C
Preferred Shares.
(4) Immediately prior to any redemption of Series C Preferred Shares, the
Company shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a dividend payment record
date and prior to the corresponding dividend payment date, in which case each
holder of Series C Preferred Shares at the close of business on such dividend
payment record date shall be entitled to the dividend payable on such shares on
the corresponding dividend payment date notwithstanding the redemption of such
shares before such dividend payment date. Except as expressly provided
hereinabove, the Company shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on Series C Preferred Shares called for
redemption.
(5) Notice of redemption 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 C 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 C
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 accumulate on such redemption date. If fewer than all the Series C
Preferred Shares held by any holder are to be redeemed, the notice mailed to
-7-
such holder shall also specify the number of Series C Preferred Shares to be
redeemed from such holder.
(6) In order to facilitate the redemption of Series C 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 C 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 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 C 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 C Preferred Shares,
as a trust fund for the benefit of the holders of the Series C 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, without interest thereon, upon
surrender (and endorsement, if required by the Company) of their certificates,
and the shares represented thereby shall no
-8-
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 C 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 C 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 C Preferred Shares which have
been exchanged pursuant to such Article for Excess Stock may 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 C
Preferred Shares are being redeemed.
Section 5. Voting Rights. The Series C Preferred Shares shall not have any
voting powers either general or special, except as required by law and except
that:
(1) If and whenever full cumulative dividends on the Series C Preferred
Shares, or any other series of preferred stock of the Company ranking on a
parity with the Series C 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, (and, if
such an arrearage exists with respect to Series A Preferred Shares, payment has
not been made in the amount of such arrearages pursuant to the Guarantee) (such
failure to pay by the Company, a "Dividend Default"), the holders of all
outstanding Series C Preferred Shares and any Parity Preferred Series, voting as
a single class without regard to series, will be entitled to elect two Directors
until all dividends in arrears and unpaid on the Series C Preferred Shares and
any Parity Preferred Series have been paid (either directly or, in the case of
the Series A Preferred Shares, pursuant to the Guarantee) 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
-9-
upon the written request of the holders of record of not less than 20% of the
total number of Series C 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 C
Preferred Shares and shares of any Parity Preferred Series 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 (either directly or
pursuant to the Guarantee) 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 C 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 C 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 C
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 Series C Preferred Shares.
-10-
(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 C Preferred Shares as to dividends
and liquidation rights or in 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 C Preferred Shares are not convertible
into shares of any other class or series of the capital stock of the Company.
-11-
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 6th day of June, 1997 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/ Michael T. Tomasz
-------------------------------
Name: Michael T. Tomasz
Title: President
Attest:
/s/ Michael J. Havala
- -----------------------------
Name: Michael J. Havala
Title: Secretary
FIRST INDUSTRIAL REALTY TRUST, INC.,
FIRST CHICAGO TRUST COMPANY OF NEW YORK,
AS DEPOSITARY,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
RELATING TO SERIES C CUMULATIVE PREFERRED STOCK
DEPOSIT AGREEMENT
Dated as of June 6, 1997
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.................................5
SECTION 2.3. Registration of Transfer of Receipts.............................5
SECTION 2.4. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of
Stock..........................................................6
SECTION 2.5. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts.......................................................7
SECTION 2.6. Lost Receipts, etc...............................................8
SECTION 2.7. Cancellation and Destruction of
Surrendered Receipts...........................................8
SECTION 2.8. Redemption of Stock..............................................8
SECTION 2.9. Stock Constituting Excess Shares................................10
SECTION 2.10. Interchangeability of Book-Entry Receipts
in Physical, Certificated Form................................10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information...............11
SECTION 3.2. Payment of Taxes or Other Governmental Charges..................11
SECTION 3.3. Warranty as to Stock............................................12
-i-
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. Cash Distributions..............................................12
SECTION 4.2. Distributions Other than Cash, Rights,
Preferences or Privileges.....................................12
SECTION 4.3. Subscription Rights, Preferences or
Privileges....................................................13
SECTION 4.4. Notice of Dividends, etc.; Fixing Record
Date for Holders of Receipts..................................14
SECTION 4.5. Voting Rights...................................................15
SECTION 4.6. Changes Affecting Deposited Securities
and Reclassifications,
Recapitalizations, etc........................................15
SECTION 4.7. Delivery of Reports.............................................16
SECTION 4.8. List of Receipt Holders.........................................16
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR
SECTION 5.1. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar.....................................................16
SECTION 5.2. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
the Registrar or the Company..................................17
SECTION 5.3. Obligation of the Depositary, the
Depositary's Agents, the Registrar and
the Company...................................................18
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary....................................................20
SECTION 5.5. Corporate Notices and Reports...................................21
SECTION 5.6. Indemnification by the Company..................................21
SECTION 5.7. Charges and Expenses............................................22
SECTION 5.8. Tax Compliance..................................................22
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment.......................................................23
SECTION 6.2. Termination ....................................................23
-ii-
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts ...................................................24
SECTION 7.2. Exclusive Benefit of Parties....................................24
SECTION 7.3. Invalidity of Provisions........................................24
SECTION 7.4. Notices ........................................................24
SECTION 7.5. Appointment of Registrar........................................25
SECTION 7.6. Holders of Receipts Are Parties.................................25
SECTION 7.7. Governing Law ..................................................25
SECTION 7.8. Inspection of Deposit Agreement.................................26
SECTION 7.9. Headings .......................................................26
-iii-
DEPOSIT AGREEMENT, dated as of June 6, 1997, among FIRST INDUSTRIAL REALTY
TRUST, INC., a Maryland corporation (the "Company"), FIRST CHICAGO TRUST COMPANY
OF NEW YORK, a national banking association (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 Series C Cumulative Preferred 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 mean First Chicago Trust Company of New York and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing 1/100
of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 5.1 and shall include the Registrar if such Registrar is not
the Depositary.
-2-
"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 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 8.625% Series C Cumulative
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"),
-3-
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.). First Chicago Trust Company of New York 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, or it is no longer desirable to have the Receipts
available in, 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 Annex A, with appropriate
insertions, modifications and omissions, as hereafter provided.
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.
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
Depository 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, 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 de-
-4-
finitive 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 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 Depositary 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.
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
-5-
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 all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order 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, 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 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, properly endorsed or accompanied by
a properly executed instrument of transfer. Thereupon, the Depositary shall
execute a new Receipt or Receipts evidencing the same aggregate number of
Depositary Shares as those evidenced by
-6-
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,
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 De positary 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
-7-
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.
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, ts 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, may require the production of evidence satisfactory to it
as to the identity and genuineness of any signature, 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.
-8-
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 indemnification reasonably satisfactory to it and the
Company 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 30 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 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. Notice of redemption of Stock will also be given by the
Company 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 redemption date,
and the Depositary will publish a notice of redemption of the Depositary Shares
containing the same type of information and in the same manner as the Company's
notice of redemption. 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
-9-
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. 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 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, in-
-10-
cluding 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 he returned to the Company after a period of five years from the date such
funds are so deposited.
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.
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).
-11-
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. 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. 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 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.
-12-
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, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 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, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 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
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place or places and upon such terms as it may deem equitable and appropriate.
The net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, 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, such rights, preferences or
privileges shall in each such instance be 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 the Depositary, 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, be distributed by the Depositary to
the record holders of Receipts entitled thereto as provided by Section 4.1 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 exer-
-14-
cise 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.
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. 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
indica-
-15-
tion 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 etc 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 securi
ties 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 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
-16-
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 without charge.
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.
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;
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.
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 De-
-17-
positary Shares shall be listed on 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 t. 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.
-18-
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 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.
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 Regis
trar 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.
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 may arise out of acts performed or omitted by the Depositary,
including when the Depositary acts as Registrar, or the Depositary's Agents in
connection with this Agreement due to its or their negligence, willful
misconduct or bad faith. The indemnification obligations of the Depositary set
forth in this Section 5.3 shall survive any termination of this 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 per-
-19-
son 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 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.
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 Deposi-
-20-
tary 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 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 pay ment
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.
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
-21-
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 negligence, willful
misconduct or bad faith on the respective parts of any such person or persons.
The obligations of the Company set forth in this Section 5.6 shall survive 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. 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
compliance shall include, without limitation, the
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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
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 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.
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This Deposit Agreement will automatically terminate after (i) all outstanding
Depositary Shares have been redeemed pursuant to Section 2.8 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, as applicable.
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.
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.
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
Facsimile No.: (312) 704-6606
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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:
First Chicago Trust Company of New York
One First National Plaza, Suite 0123
Chicago, IL 60670
Attention: John Ruocco
Facsimile No.: (312) 407-3021
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.
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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.
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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.
/s/ Michael J. Havala
---------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer and
Secretary
FIRST CHICAGO TRUST COMPANY OF NEW YORK
/s/ John H. Ruocco
---------------------------------------
Name: John H. Ruocco
Title: Administrator
ANNEX A
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
DR- (CUSIP 32054 K609)
see reverse for certain definitions
THIS CERTIFICATE IS TRANSFERABLE
IN NEW YORK, NY
[Logo]
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/100 OF A SHARE OF
8.625% SERIES C CUMULATIVE PREFERRED STOCK
FIRST INDUSTRIAL REALTY TRUST, INC.
(INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND)
First Chicago Trust Company of New York, a national banking association
duly organized and existing under the laws of the United States of America with
an office at the time of execution of the Deposit Agreement (as defined below)
at One First National Plaza, Suite 0123, Chicago, IL 60670, as Depositary (the
"Depositary"), hereby certifies that
_____________is a registered owner of __________________________ DEPOSITARY
SHARES ("Depositary Shares"), each Depositary Share representing 1/100 of one
fully paid and non-assessable share of 8.625% Series C Cumulative 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 June 6, 1997 (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:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Depositary and Registrar
By: ____________________________________
By: ____________________________________
SECRETARY AND TREASURER
By: ____________________________________
PRESIDENT
[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) (Minor)
JT TEN -- as joint tenants with under Uniform Gifts to Minors
right of survivorship and Act . . . . .
not as tenants in common (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
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: ___________________
A-1
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-2
Exhibit 4.3
[FORM OF FACE OF RECEIPT]
NUMBER SHARES
1 20,000
FIRST INDUSTRIAL REALTY TRUST, INC.
Series C Cumulative Preferred Stock
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that FIRST CHICAGO TRUST COMPANY OF NEW YORK, as Depositary
is the owner of Twenty Thousand Series C Cumulative Preferred Shares, such
Shares are fully paid and non-assessable Shares of the above Corporation
transferable only on the books of the Corporation by the holder hereof in person
or by duly authorized Attorney upon surrender of this Certificate properly
endorsed.
In Witness Whereof, the said Corporation has caused this Certificate to be
signed by its duly authorized officers and to be sealed with the Seal of the
Corporation.
Dated: June 6, 1997
[LOGO]
SECRETARY AND TREASURER PRESIDENT
[FORM OF REVERSE OF RECEIPT]
FIRST INDUSTRIAL REALTY TRUST, INC.
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE 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 Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations. Additional abbreviations may also
be used though not in the list.
TEN COM-- as tenants in common UNIF GIFT MIN ACT--......Custodian.......(Minor)
TEN ENT-- as tenants by the under Uniform Gifts to Minors Act...... (State)
entireties
JT TEN -- as joint tenants with
right of survivorship
and not as tenants in
common
For value received, the undersigned hereby PLEASE INSERT SOCIAL SECURITY OR
OTHER sells, assigns and transfers unto IDENTIFYING NUMBER OF ASSIGNEE
-----------------------------------
- ---------------------------------------
PLEASE PRINT OR TYPEWRITE NAME
AND ADDRESS OF ASSIGNEE -----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Shares represented by the within Certificate,
and hereby irrevocably constitutes and appoints _____________ ____________
Attorney to transfer the said shares of the within-named Corporation with full
power of substitution in the premises.
Dated
-----------------------------
In presence of
-------------------------------------
- ------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the certificate in every particular without alteration
or enlargement, or any change whatever.
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