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Exhibit 4.14
EXECUTION COPY
REMARKETING AGREEMENT
between
FIRST INDUSTRIAL, L.P.
and
J.P. MORGAN SECURITIES INC.
as Remarketing Dealer
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TABLE OF CONTENTS
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PAGE
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SECTION 1. Definitions 2
SECTION 2. Representations and Warranties 5
SECTION 3. Covenants of the Company 7
SECTION 4. Appointment and Obligations of the Remarketing Dealer 10
SECTION 5. Fees and Expenses 13
SECTION 6. Resignation of the Remarketing Dealer 14
SECTION 7. Dealing in the Drs.; Purchase of Drs. by the Company 14
SECTION 8. Conditions to Remarketing Dealer's Obligations 14
SECTION 9. Indemnification 18
SECTION 10. Termination of Remarketing Agreement 21
SECTION 11. Remarketing Dealer's Performance; Duty of Care 22
SECTION 12. Governing Law 23
SECTION 13. Term of Agreement 23
SECTION 14. Successors and Assigns 23
SECTION 15. Headings 24
SECTION 16. Severability 24
SECTION 17. Counterparts 24
SECTION 18. Amendments; Waivers 24
SECTION 19. Notices 24
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REMARKETING AGREEMENT dated as of March 31, 1998
(the "AGREEMENT") between First Industrial, L.P., a
Delaware limited partnership (the "COMPANY"), and J.P.
Morgan Securities Inc. ("JPMSI" and, in its capacity
as the remarketing dealer hereunder, the "REMARKETING
DEALER").
WHEREAS, the Company has issued $100,000,000
aggregate principal amount of its 6 1/2% Dealer
remarketable securities1("DRS."_) pursuant to an
Indenture dated as of May 13, 1997, as supplemented
(the "INDENTURE"), from the Company to First Trust,
National Association, as trustee (the "TRUSTEE"); and
WHEREAS, the Drs. are being sold initially
pursuant to an Underwriting Agreement dated as of
March 26, 1998 (the "UNDERWRITING AGREEMENT") between
the Company and JPMSI, Donaldson, Lufkin & Jenrette
Securities Corporation, Merrill Lynch, Pierce, Fenner
& Smith Incorporated and UBS Securities LLC, as
Underwriters; and
WHEREAS, the Company has filed with the
Securities and Exchange Commission (the "COMMISSION")
a registration statement (No. 333-43641) under the
Securities Act of 1933, as amended (the "SECURITIES
ACT"), in connection with the offering of debt
securities, including the Drs., which registration
statement was declared effective by order of the
Commission, and has filed such amendments thereto and
such amended or supplemented prospectuses as may have
been required to the date hereof, and will file such
additional amendments and supplements thereto and such
additional amended or supplemented prospectuses as may
hereafter be required (such registration statement,
including any amendments and supplements thereto, and
all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), the Securities Act, or otherwise, are
referred to herein as the "REGISTRATION STATEMENT");
all preliminary and final prospectuses relating to
such Registration Statement used in connection with
the offering of Drs., including the documents
incorporated by reference therein, are referred to
herein collectively as the "PROSPECTUS"; provided
that, if any new or revised prospectus shall be
provided to the Remarketing Dealer by the Company for
use in connection with the remarketing of the Drs.
which differs from the Prospectus filed with the
Commission at the time of the initial issuance of the
Drs. (whether or not such revised prospectus is
required to be filed by the Company pursuant to Rule
424(b) under the Securities Act), the term
"PROSPECTUS" shall refer to such new or revised
prospectus from and after the time it is first
provided to the Remarketing Dealer for such use, and
"REGISTRATION STATEMENT" shall refer to the
Registration
- - ------------------------
"Dealer remarketable securities" and "Drs." are service marks of J.P. Morgan
Securities Inc.
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Statement as deemed amended by the prospectus so
provided or any new registration statement of which
such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the
Remarketing Dealer with respect to the remarketing of
the Drs. on April 5, 2001 (the "REMARKETING DATE")
pursuant to the terms of, but subject to the
conditions set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the
covenants herein made, and subject to the conditions
herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions
(a) The following terms have the following meanings:
"BASE RATE" means 5.67% per annum.
"BUSINESS DAY" means any day other than a
Saturday or Sunday or other day on which banking
institutions in the City of New York or Chicago are
authorized or obligated by law, executive order or
governmental decree to be closed.
"CALL PRICE" means the fair market value of the
embedded interest rate option implicit in the
Remarketing Dealer's right to purchase and remarket on
the Remarketing Date, pursuant to this Agreement, the
Unremarketable Drs. The Call Price in respect of any
Unremarketable Drs. shall equal:
(i) if the Remarketing Dealer's request for
a Call Price payment is made prior to the
Determination Date, the Commercially Reasonable
Option Value on the date of such request.
(ii) if the Remarketing Dealer's request
for a Call Price payment is made on or after the
Determination Date, an amount (if positive) equal
to (x) the Dollar Price less (y) the aggregate
principal amount of the Drs. originally issued.
"COMMERCIALLY REASONABLE OPTION VALUE" means, on
any date, the amount determined by the Remarketing
Dealer on such date under Section 6(e) of the Master
Agreement on a "Market Quotation" basis in respect of
the embedded interest rate option implicit in the
Remarketing Dealer's option to purchase, at 100% of
the aggregate principal amount thereof, the
Unremarketable Drs. as if a "Termination Event" had
occurred on such date under such interest rate option
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with respect to the Company under the Master Agreement
and the Company was the "Affected Party".
"COMPARABLE TREASURY ISSUE" means the United
States Treasury security selected by the Remarketing
Dealer as having an actual maturity on the
Determination Date (or the United States Treasury
securities selected by the Remarketing Dealer to
derive an interpolated maturity on such Determination
Date) comparable to the remaining term of the Drs.
"COMPARABLE TREASURY PRICE" means (a) the offer
price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500
(as defined below), adjusted to reflect settlement on
the Remarketing Date if prices quoted on Telerate Page
500 are for settlement on any date other than the
Remarketing Date, or (b) if such page (or any
successor page) is not displayed or does not contain
such offer prices on such Business Day, then (i) if
the Remarketing Dealer obtains four or five Reference
Treasury Dealer Quotations, the average of such
Reference Treasury Dealer Quotations for such
Remarketing Date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations
(unless there is more than one highest or lowest
quotation, in which case only one such highest and/or
lowest quotation shall be excluded), or (ii) if the
Remarketing Dealer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of
all such Reference Treasury Dealer Quotations. The
Remarketing Dealer shall have the discretion to select
the time at which the Comparable Treasury Price is
determined on the Determination Date.
"DOLLAR PRICE" means the discounted present value
to the Remarketing Date of the cash flows on a bond
(x) with a principal amount equal to the aggregate
principal amount of the initially issued Drs., (y)
maturing on the Stated Maturity Date and (z) bearing
interest from the Remarketing Date, payable
semi-annually (assuming a 360-day year consisting of
twelve 30-day months) on the interest payment dates of
the Drs. at a rate equal to the Base Rate, using a
discount rate equal to the Treasury Rate.
"REFERENCE CORPORATE DEALER" means J.P. Morgan
Securities Inc., and four other leading dealers of
publicly-traded debt securities of the Company
acceptable to JPMSI and the Company.
"REFERENCE TREASURY DEALER" means a primary U.S.
Government securities dealer in The City of New York
(which may include the Remarketing Dealer) selected by
the Remarketing Dealer.
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"REFERENCE TREASURY DEALER QUOTATIONS" means,
with respect to each Reference Treasury Dealer, the
offer price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount)
for settlement on the Remarketing Date, quoted in
writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on
the Determination Date.
"STATED MATURITY DATE" means April 5, 2011.
"TELERATE PAGE 500" means the display designated
as "Telerate Page 500" on Dow Jones Markets Limited
(or such other page as may replace Telerate Page 500
on such service) or such other service displaying the
offer price specified in clause (a) of the definition
of Comparable Treasury Price as may replace Dow Jones
Markets Limited.
"TREASURY RATE" means the annual rate equal to
the semi-annual equivalent yield to maturity or
interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable
Treasury Issue for value on the Remarketing Date,
assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price.
"UNREMARKETABLE DRS." means any Drs. that are
unavailable for any reason for remarketing by the
Remarketing Dealer on the Remarketing Date (whether
due to termination of this Agreement according to its
terms, purchase of Drs. by the Company prior to the
Remarketing Date, or otherwise).
(b) The following additional terms are defined in
the following Sections:
Defined Term Section
- - ------------ -------
Commission Preamble
Company Preamble
Determination Date 4(d)
Drs. Preamble
DTC 4(e)
Exchange Act Preamble
Exchange Act Documents 2(a)
Indemnified Person 9(c)
Indemnifying Person 9(c)
Indenture Preamble
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Defined Term Section
- - ------------ -------
Interest Rate to Maturity 4(d)
Investment Grade 8(c)
JPMSI Preamble
Master Agreement 8(c)
Notification Date 4(c)
Prospectus Preamble
Registration Statement Preamble
Remarketing Date Preamble
Remarketing Dealer Preamble
Remarketing Materials 3(c)
Representation Date 2(a)
Securities Act Preamble
Trustee Preamble
Underwriting Agreement Preamble
SECTION 2. Representations and Warranties
(a) The Company represents and warrants to the
Remarketing Dealer as of the date hereof, the
Notification Date (as defined below), the
Determination Date (as defined below) and the
Remarketing Date (each of the foregoing dates being
hereinafter referred to as a "REPRESENTATION DATE"),
as follows:
(i) It has filed all reports and any
definitive proxy or information statements
required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act (collectively, the
"EXCHANGE ACT DOCUMENTS").
(ii) The applicable Remarketing Materials (as
defined below) will not, as of their date or the
Remarketing Date, include 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, in the
light of the circumstances under which they were
made, not misleading.
(iii) The representations and warranties
contained in the Underwriting Agreement are true
and correct with the same force and effect as
though expressly made at and as of each
Representation Date; except that for purposes of
this Agreement, representations and warranties in
the Underwriting Agreement relating to the
Registration Statement and
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the Prospectus (as defined therein) shall be
made with respect to such documents as deemed modified
by the Exchange Act Documents, as well as any new or
revised registration statement and new or revised
prospectus required by subsection 3(f) herein, and the
date as of which such representations and warranties are
made shall include each Representation Date.
(iv) Since the respective dates as of which
information is given in the Remarketing Materials or the
Exchange Act Documents, there has not been any material
adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in
the Remarketing Materials or the Exchange Act Documents.
(v) This Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The issue and sale of the Drs. and the performance by
the Company of all of its obligations under the Drs.,
the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of
its subsidiaries is subject, except for such conflicts,
breaches or defaults which individually or in the
aggregate would not have a Material Adverse Effect (as
defined in the Underwriting Agreement) nor will any such
action result in any violation of the provisions of the
Partnership Agreement of the Company or any applicable
law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their
respective properties. No consent, approval,
authorization, order, license, registration or
qualification of or with any such court or governmental
agency or body is required for the issue and sale of the
Drs. or the consummation by the Company of the
transactions contemplated by this Agreement or the
Indenture, except such as have already been obtained and
except as may be required under the blue sky laws of any
jurisdiction.
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(b) Additional Certifications. Any
certificate signed by any director or officer of the
Company and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with
the remarketing of the Drs. shall be deemed a
representation and warranty by the Company to the
Remarketing Dealer as to the matters covered thereby.
SECTION 3. Covenants of the Company
The Company covenants with the Remarketing Dealer
as follows:
(a) The Company will provide prompt notice by
telephone, confirmed in writing (which may include
facsimile or other electronic transmission), to the
Remarketing Dealer of the occurrence:
(i) at any time, of any event set forth in
clause (i) or (ii) of subsection 8(c) or of any
amendment of any kind to the Indenture (including
the Drs.); and
(ii) on or after the Notification Date, of any
event set forth in clauses (i) or (ii) of
subsection 8(d).
(b) The Company will furnish to the Remarketing
Dealer upon request:
(i) each Registration Statement and the
Prospectus relating to the Drs. (including in
each case any amendment or supplement thereto and
each document incorporated therein by reference),
other than Exchange Act Documents publicly
available on the Commission's internet website,
and
(ii) in connection with the remarketing of
Drs. such other publicly available written
information as the Remarketing Dealer may reasonably
request from time to time, other than Exchange Act
Documents publicly available on the Commission's
internet website.
The Company agrees to provide the Remarketing
Dealer with as many copies of the foregoing written
materials and other Company-approved information as
the Remarketing Dealer may reasonably request for use
in connection with the remarketing of Drs. and
consents to the use thereof for such purpose.
(c) If, at any time within three months of the
Remarketing Date, any event or condition known to the
Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could
reasonably be expected to cause any of the materials
or information referred to in subsection 3(b) above,
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any Exchange Act Documents or any document
incorporated therein by reference (collectively, the
"REMARKETING MATERIALS") to contain an untrue
statement of a material fact or omit to state a
material fact, the Company shall promptly notify the
Remarketing Dealer in writing of the circumstances and
details of such event or condition.
(d) So long as the Drs. are outstanding, the
Company will file all documents required to be filed
with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act
and the rules and regulations thereunder.
(e) The Company will comply with the Securities
Act, the Exchange Act, the Trust Indenture Act and the
rules and regulations of the Commission thereunder so
as to permit the completion of the remarketing of the
Drs. as contemplated in () this Agreement, () the
Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and () the
prospectus, if any, used in connection with the
remarketing.
(f) If a new or amended Registration Statement in
respect of the Drs. is in the opinion of counsel for
the Remarketing Dealer or for the Company necessary to
sell Drs. on an unrestricted basis on the Remarketing
Date, then the Company, at its expense, will, on or
before such date:
(i) prepare and file with the Commission such
amended or new Registration Statement (including
a Prospectus) covering such sale of Drs. by the
Remarketing Dealer, and cause such Registration
Statement to become effective on or prior to the
Remarketing Date;
(ii) furnish to the Remarketing Dealer such
number of copies of such Prospectus as the
Remarketing Dealer may reasonably request;
(iii) furnish to the Remarketing Dealer an
officers' certificate, an opinion, including a
statement as to the absence of material
misstatements in or omissions from the
Registration Statement and the Prospectus, of
Cahill Gordon & Reindel or such other counsel to
the Company reasonably satisfactory to the
Remarketing Dealer and a "comfort letter" from
the Company's independent accountants, in each
case dated as of the Remarketing Date and in form
and substance satisfactory to the Remarketing
Dealer, of the same tenor as the officers'
certificate, opinion and comfort letter,
respectively, delivered to satisfy the closing
conditions of the Underwriting Agreement, but
modified to relate to such new or amended
Registration Statement and the Prospectus; and
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(iv) provide to the Remarketing Dealer and any
other securities dealer participating in the
remarketing of the Drs. the opportunity to
conduct an underwriters' due diligence
investigation of the Company in a scope
customarily provided in connection with a public
offering of the Company's debt securities.
Furthermore, if at any time when, in the opinion
of counsel for the Remarketing Dealer, a prospectus is
required by the Securities Act to be delivered in
connection with remarketing of the Drs., any event
shall occur or condition shall exist as a result of
which it is necessary to amend the Registration
Statement or amend or supplement the Prospectus in
order that such Prospectus will not include any untrue
statement of a material fact or omit to state a
material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time it is delivered to
a purchaser, or if it is necessary to amend or
supplement the Prospectus to comply with law, the
Company, at its expense, will promptly furnish to the
Remarketing Dealer such amendments or supplements to
the Prospectus as may be needed so that the statements
in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading
or so that the Prospectus will comply with law.
The Company agrees to reimburse the Remarketing
Dealer, to a maximum of $25,000, for half of its
reasonable out-of-pocket expenses (including
reasonable fees and disbursements of counsel) incurred
in connection with any remarketing under circumstances
described in this subsection 3(f). Notwithstanding
the preceding sentence, if at the time of such
remarketing, the Company or its affiliates hold Drs.
which would not have had to have been registered but
for the fact that the Company or such affiliates hold
such Drs., then the Company shall pay all of the
Remarketing Dealer's reasonable out-of-pocket expenses
in connection with the remarketing of the Drs.
(g) The Company agrees that neither it nor any of
its subsidiaries or affiliates shall purchase or
otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. prior
to the Remarketing Date, other than
(i) a repurchase of the Drs. in accordance
with subsection 4(g);
(ii) a redemption of the Drs. in accordance with
subsection 4(h); or
(iii) a purchase by the Company of Drs.;
provided that if the Company purchases Drs.
pursuant to this subsection (g), it agrees (x) to
ensure that such Drs. remain at all times
outstanding and held through the
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facilities of DTC, (y) to ensure that none of such Drs.
are at any time subject to any liens or encumbrances of any
nature whatsoever and (z) if the Remarketing Dealer elects
to remarket the Drs. on the Remarketing Date, to tender
such Drs. to the Remarketing Dealer on the Remarketing Date
in accordance with the procedures described in this
Agreement.
(h) The Company will comply with each of the
covenants set forth in the Underwriting Agreement.
(i) In connection with the remarketing, the
Company will use its best efforts to qualify the Drs.
for sale under the laws of such jurisdictions as the
Remarketing Dealer may designate, and will maintain
such qualifications in effect so long as required for
the remarketing of the Drs.; provided, however, the
Company will not be required to qualify as a foreign
limited partnership, 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
partnership agreement that the general partner of the
Company reasonably determines to be contrary to the
best interests of the Company and its unitholders.
The Company will pay all expenses in connection with
such qualification, including the fees and
disbursements of counsel for any dealers participating
in the remarketing in connection with such
qualification and in connection with blue sky and
legal investment surveys.
(j) During the five Business Day period ending on
the Remarketing Date, the Company will not, without
the consent of the Remarketing Dealer, offer, sell or
contract to sell, or otherwise dispose of, directly or
indirectly, or announce the public offering of, any
debt securities issued or guaranteed by the Company.
SECTION 4. Appointment and Obligations of the
Remarketing Dealer
(a) Unless this Agreement is otherwise terminated
in accordance with Section 10 hereof, the Company
hereby appoints JPMSI, and JPMSI hereby accepts such
appointment, in accordance with the terms but subject
to the conditions of this Agreement, as the exclusive
Remarketing Dealer with respect to the Drs.
(b) The obligations of the Remarketing Dealer
hereunder to purchase the tendered Drs. on the
Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket
the Drs. are conditioned on:
(i) the issuance and delivery of such Drs.
pursuant to the terms and conditions of the
Underwriting Agreement;
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(ii) the Remarketing Dealer's election on the
Notification Date to purchase the Drs. for
remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in
Section 8 hereof shall have been fully and
completely met to the satisfaction of the
Remarketing Dealer.
(c) On a Business Day not later than five Business
Days prior to the Remarketing Date (the "NOTIFICATION
DATE"), the Remarketing Dealer will notify the Company
and the Trustee as to whether it elects to purchase
the Drs. on the Remarketing Date. If, and only if, the
Remarketing Dealer so elects, the Drs. shall be
subject to mandatory tender to the Remarketing Dealer
for purchase and remarketing on the Remarketing Date,
upon the terms and subject to the conditions described
herein. The purchase price of the Drs. shall be equal
to 100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new
stated interest rate on the Drs. as of the Remarketing
Date (the "INTEREST RATE TO MATURITY") on the third
Business Day immediately preceding the Remarketing
Date (the "DETERMINATION DATE") by soliciting by 3:30
p.m., New York City time, the Reference Corporate
Dealers for firm, committed bids to purchase all
outstanding Drs. at the Dollar Price, and by selecting
the lowest such firm, committed bid (regardless of
whether each of the Reference Corporate Dealers
actually submits a bid). Each bid shall be expressed
in terms of the Interest Rate to Maturity that the
Drs. would bear (quoted as a spread over the Base
Rate) based on the following assumptions:
(i) the Drs. would be sold to such Reference
Corporate Dealer on the Remarketing Date for
settlement on the same day;
(ii) the Drs. would mature on the Stated
Maturity Date;
(iii) the Drs. would bear interest from the
Remarketing Date at a stated rate equal to the
Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the
interest payment dates for the Drs.
The Interest Rate to Maturity announced by the
Remarketing Dealer as a result of such process will be
quoted to the nearest one hundred-thousandth (0.00001)
of one percent per annum and, absent manifest error,
will be binding and conclusive upon holders of the
Drs., the Company and the Trustee. Subject only to
subsection
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4(e), below, the Remarketing Dealer shall
have the discretion to select the time at which the
Interest Rate to Maturity is determined on the
Determination Date.
(e) If the Remarketing Dealer has elected to
remarket the Drs. as provided in subsections 4(c) and
4(d), then it shall notify the Company, the Trustee
and The Depository Trust Company ("DTC") by telephone,
confirmed in writing (which may include facsimile or
other electronic transmission), by 5:00 p.m., New York
City time, on the Determination Date of the Interest
Rate to Maturity applicable to the Drs. effective from
and including the Remarketing Date.
(f) If the Drs. are remarketed as provided herein,
then, subject to Section 8 hereof, the Remarketing
Dealer will make, or cause the Trustee to make,
payment to DTC by the close of business on the
Remarketing Date against delivery through DTC of the
tendered Drs., of the purchase price for all of the
tendered Drs. The purchase price of the tendered Drs.
will be equal to 100% of the principal amount thereof
and shall be paid in immediately available funds.
(g) If the Remarketing Dealer () does not elect to
purchase the Drs. for remarketing pursuant to
subsection 4(c), () determines in its sole discretion
that one or more of the conditions in Section 8 hereof
have not been fulfilled by the required time, or (iii)
for any other reason does not remarket the Drs., then
the Company shall repurchase on the Remarketing Date
all then outstanding Drs. at a price equal to 100% of
the principal amount of such Drs. plus all accrued
interest, if any, on such Drs. to (but excluding) the
Remarketing Date.
(h) If the Remarketing Dealer has elected to
remarket the Drs. on the Remarketing Date in
accordance with subsection 4(c) hereof, the Company
may irrevocably elect to exercise its right to redeem
the Drs., in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the
greater of (x) 100% of the aggregate principal amount
of the Drs. and (y) the Dollar Price, by giving notice
of such election to the Remarketing Dealer
(i) no later than the Business Day
immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate
Dealers submit firm, committed bids in accordance
with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for
receiving such bids has passed.
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In either such case, the Company shall pay such
redemption price for the Drs. in same-day funds by
wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
If the Company exercises its right to redeem the
Drs. pursuant to clause 4(h)(ii) above, it shall
promptly reimburse the Remarketing Dealer for any and
all expenses (including any and all hedge losses
resulting from intra-day hedging associated with the
determination of the Dollar Price on the Determination
Date by the Remarketing Dealer) incurred by the
Remarketing Dealer in connection with its having to
break such associated intra-day hedging transactions
to enable the Company to exercise such redemption
right. If any such broken hedges result in a profit
to the Remarketing Dealer, the Remarketing Dealer
shall promptly pay such profit over to the Company.
The amount of any hedge losses or profits shall be
determined solely by the Remarketing Dealer, on a
reasonable basis.
(i) In accordance with the terms and provisions of
the Drs., the tender and settlement procedures set
forth in this Section 4, shall be subject to
modification without the consent of the holders of the
Drs., to the extent required by DTC or, if the
book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required
to facilitate the tendering and remarketing of Drs. in
certificated form. In addition, the Remarketing Dealer
may, without the consent of the holders of the Drs.,
modify the settlement procedures set forth in the
Indenture and/or the Drs. in order to facilitate the
settlement process.
(j) In accordance with the terms and provisions of
the Drs., the Company hereby (i) agrees that at all
times, it will use its best efforts to maintain the
Drs. in book-entry form with DTC or any successor
thereto and to appoint a successor depositary to the
extent necessary to maintain the Drs. in book-entry
form and (ii) waives any discretionary right it
otherwise may have under the Indenture to cause the
Drs. to be issued in certificated form.
SECTION 5. Fees and Expenses
Subject to subsection 3(f), the last paragraph of
subsection 4(h), and Section 10 hereof, the
Remarketing Dealer will not receive any fees or
reimbursement of expenses from the Company for its
remarketing services set forth herein.
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SECTION 6. Resignation of the Remarketing Dealer
The Remarketing Dealer may resign and be
discharged from its duties and obligations hereunder
at any time prior to its giving notice of its
intention to remarket the Drs., such resignation to be
effective ten Business Days after delivery of a
written notice to the Company and the Trustee of such
resignation. The Remarketing Dealer also may resign
and be discharged from its duties and obligations
hereunder at any time, such resignation to be
effective immediately, upon termination of this
Agreement in accordance with subsection 10(b) hereof.
The Company shall have the right, but not the
obligation, to appoint a successor Remarketing Dealer.
SECTION 7. Dealing in the Drs.; Purchase of Drs.
by the Company
(a) JPMSI, when acting as the Remarketing Dealer
or in its individual or any other capacity, may, to
the extent permitted by law, buy, sell, hold and deal
in any of the Drs. JPMSI, as holder or beneficial
owner of the Drs., may exercise any vote or join as a
holder or beneficial owner, as the case may be, in any
action which any holder or beneficial owner of Drs.
may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any
capacity hereunder. The Remarketing Dealer, in its
capacity either as principal or agent, may also engage
in or have an interest in any financial or other
transaction with the Company as freely as if it did
not act in any capacity hereunder.
(b) The Company may purchase Drs. in the
remarketing, provided that the Interest Rate to
Maturity established with respect to Drs. in the
remarketing is not different from the Interest Rate to
Maturity that would have been established if the
Company had not purchased such Drs.
SECTION 8. Conditions to Remarketing Dealer's
Obligations
The obligations of the Remarketing Dealer to
purchase the Drs. on the Remarketing Date in
accordance with the provisions of this Agreement, to
determine the Interest Rate to Maturity pursuant to
subsection 4(d), and to remarket the Drs. have been
undertaken in reliance on, and are subject to, the
following conditions:
(a) the due performance in all material respects
by the Company of its obligations and agreements as
set forth in this Agreement and the accuracy of the
representations and warranties in this Agreement and
any certificate delivered pursuant hereto;
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(b) the due performance in all material respects
by the Company of its obligations and agreements set
forth in, and the accuracy as of the dates specified
therein of the representations and warranties
contained in, the Underwriting Agreement;
(c) none of the following events shall have
occurred at any time on or prior to the Remarketing
Date:
(i) an Event of Default (as defined in the
Indenture), or any event which, with the giving
of notice or passage of time, or both, would
constitute an Event of Default thereunder, with
respect to the Drs. shall have occurred and be
continuing;
(ii) an Event of Default or a Termination
Event (each as defined in the form of ISDA Master
Agreement attached as Exhibit A hereto (the
"MASTER AGREEMENT")) shall have occurred and be
continuing under the Master Agreement; or
(iii) without the prior written consent of the
Remarketing Dealer, the Indenture (including the
Drs.) shall have been amended in any manner, or
otherwise contain any provision not contained
therein as of the date hereof, that in either
case in the judgment of the Remarketing Dealer
materially changes the nature of the Drs. or the
remarketing procedures;
(d) none of the following events shall have
occurred after the Remarketing Dealer elects on the
Notification Date to purchase the Drs.:
(i) there shall have occurred any
downgrading, or any notice shall have been given
of (A) any downgrading, (B) any intended or
potential downgrading or (C) any review or
possible change that does not indicate an
improvement, in the rating accorded any debt
securities of, or guaranteed by, the Company by
any "nationally recognized statistical rating
organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities
Act;
(ii) trading of any securities of, or
guaranteed by, the Company shall have been
suspended on any exchange or in any
over-the-counter market;
(iii) a material adverse change, or any
development involving a prospective material
adverse change, in or affecting the general
affairs, business, prospects, management,
financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries, taken as a
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whole, in each case otherwise than as set forth
or contemplated in the Prospectus the effect of which is
such as to make it, in the judgment of the Remarketing
Dealer, impracticable or inadvisable to remarket the
Drs.;
(iv) if a prospectus is required under the
Securities Act to be delivered in connection with
the remarketing of the Drs., the Company shall
fail to furnish to the Remarketing Dealer on the
Remarketing Date the officers' certificate,
opinion and comfort letter referred to in
subsection 3(f) of this Agreement and such other
documents and opinions as Davis Polk & Wardwell,
as special counsel for the Remarketing Dealer may
reasonably require for the purpose of enabling
such counsel to pass upon the sale of Drs. in the
remarketing as herein contemplated and related
proceedings, or in order to evidence the accuracy
and completeness of any of the representations
and warranties, or the fulfillment of any of the
conditions, herein contained;
(v) trading generally shall have been
suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National
Association of Securities Dealers, Inc.; or a
general moratorium on commercial banking
activities in New York shall have been declared
by either Federal or New York State authorities;
(vi) there shall have occurred any outbreak or
escalation of hostilities or any change in
financial markets or any calamity or crisis that,
in the judgment of the Remarketing Dealer, is
material and adverse and which, in the judgment
of the Remarketing Dealer, makes it impracticable
to remarket the Drs. or to enforce contracts for
the sale of the Drs.;
(vii) the Treasury Rate used to determine the
Dollar Price on the Determination Date exceeds
the Base Rate; or
(viii) the Remarketing Dealer shall not have
received by the required time on the
Determination Date any firm, committed bids to
purchase all of the Drs. in accordance with
subsection 4(d) hereof;
(e) the Remarketing Dealer shall have received (as
soon as practicable following notification by the
Remarketing Dealer to the Company on the Notification
Date of its election to purchase the Drs. and in any
event prior to the Determination Date) a certificate
of any of the Chairman of the Board of Directors,
President, Chief Operating Officer or Chief Financial
or Accounting Officer of the Company, satisfactory to
the Remarketing Dealer, dated as of the Notification
Date, to the following effect:
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(i) the Company has, prior to the Remarketing
Dealer's election on the Notification Date to
remarket the Drs., provided the Remarketing
Dealer with notice of all events as required
under subsection 3(a) of this Agreement;
(ii) the representations and warranties in
this Agreement are true and correct in all
material respects at and as of the Notification
Date; and
(iii) the Company has complied with all
agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to
the Notification Date; and
(f) the Remarketing Dealer shall have received on
the Remarketing Date a certificate of any of the Chief
Financial Officer, the Treasurer or the Controller of
the Company, satisfactory to the Remarketing Dealer,
dated as of the Remarketing Date, to the following
effect:
(i) the representations and warranties in
this Agreement are true and correct in all
material respects with the same force and effect
as though made at and as of the Remarketing Date;
(ii) the Company has complied in all material
respects with all agreements and satisfied all
conditions on its part to be performed or
satisfied at or prior to the Remarketing Date;
(iii) no material adverse change, or any
development involving a prospective material
adverse change, in or affecting the general
affairs, business prospects, management,
financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries, taken as a whole, shall have
occurred since the date of the most recent
financial statements of the Company filed with
the Commission; and
(iv) the conditions specified in clauses
8(c)(i) and 8(c)(ii) and clauses 8(d)(i) and
8(d)(ii) of this Agreement have been satisfied.
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SECTION 9. Indemnification.
(a) The Company agrees to indemnify and hold
harmless the Remarketing Dealer and each person, if
any, who controls the Remarketing Dealer within the
meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal
fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted):
(i) arising out of the failure to have an
effective registration statement under the
Securities Act relating to the Drs., if required,
or the failure to satisfy the prospectus delivery
requirements of the Securities Act because the
Company failed to provide the Remarketing Dealer
with a prospectus for delivery,
(ii) caused by any untrue statement or alleged
untrue statement of a material fact contained in
any of the Remarketing Materials or caused by any
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, except insofar as such losses,
claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue
statement or omission made in reliance upon and
in conformity with information relating to the
Remarketing Dealer furnished to the Company in
writing by the Remarketing Dealer expressly for
use therein, or
(iii) the acts or omissions of the Remarketing
Dealer in connection with its duties and
obligations hereunder, except to the extent
finally judicially determined to be due primarily
to its gross negligence or willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and
hold harmless the Company, its directors and its
officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the
Remarketing Dealer in subsection 9(a)(ii) of this
Agreement, but only with reference to information
relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer
expressly for use in any of the Remarketing Materials.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or
demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such person
(the "INDEMNIFIED PERSON") shall promptly
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notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PERSON") in writing, and the
Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees
and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless
(i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to
the contrary,
(ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding
(including any impleaded parties) include both
the Indemnifying Person and the Indemnified
Person and representation of both parties by the
same counsel would be inappropriate due to actual
or potential differing interests between them.
It is understood that the Indemnifying Person
shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable
for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred.
Any such separate firm for the Remarketing Dealer and
its directors and officers shall be designated in
writing by it and any such separate firm for the
Company, its directors and its officers who sign the
Registration Statement and such control persons of the
Company or authorized representatives shall be
designated in writing by the Company. The
Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its
written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or
liability by reason of such settlement or judgment.
(d) Notwithstanding the foregoing subsection 9(c),
if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as
contemplated by such subsection 9(c), the Indemnifying
Person agrees that it shall be liable for any
settlement of any proceeding effected without its
written consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such
Indemnifying Person shall not have
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reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying
Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party
and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from
all liability on claims that are the subject matter of
such proceeding.
(e) If the indemnification provided for in
subsections 9(a) and 9(b) is unavailable to an
Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to,
then each Indemnifying Person, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute
to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company,
on the one hand, and the Remarketing Dealer, on the
other, from the remarketing of the Drs. 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
Remarketing Dealer, on the other, in connection with
the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and
the Remarketing Dealer, on the other, shall be deemed
to be in the same respective proportions as the
aggregate principal amount of the Drs. bears to the
amount, if any, by which the price at which the Drs.
are sold by the Remarketing Dealer in the remarketing
exceeds the price paid by the Remarketing Dealer for
the Drs. tendered on the Remarketing Date. The
relative fault of the Company on the one hand and the
Remarketing Dealer on the other shall be determined by
reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Company or by
the Remarketing Dealer and the parties' relative
intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission.
(f) The Company and the Remarketing Dealer agree
that it would not be just and equitable if
contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other
method of allocation that does not take account of the
equitable considerations referred to in the
immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above,
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any legal or other expenses incurred by such
Indemnified Person in connection with investigating or
defending any such action or claim.
(g) Notwithstanding the provisions of this Section
9, in no event shall the Remarketing Dealer be
required to contribute any amount in excess of the
amount by which the total price at which the Drs.
remarketed by it and distributed to the public were
offered to the public exceeds the amount of any
damages that such Remarketing Dealer has otherwise
been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to
contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies
provided for in this Section 9 are not exclusive and
shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law
of in equity.
(h) The indemnity and contribution agreements
contained in this Section 9 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 termination of this
Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person
controlling the Remarketing Dealer or by or on behalf
of the Company, its officers or directors or any other
person controlling the Company.
SECTION 10. Termination of Remarketing Agreement.
(a) This Agreement shall terminate as to the
Remarketing Dealer on the earliest of
(i) the effective date of the resignation of
the Remarketing Dealer pursuant to Section 6
hereof;
(ii) the occurrence of any event described in
clause (i) or (ii) of subsection 4(g) hereof; or
(iii) the date the Company gives notice of its
intention to redeem all of the outstanding Drs. in
accordance with subsection 4(h).
(b) In addition, the Remarketing Dealer may
terminate all of its obligations under this Agreement
immediately by notifying the Company and the Trustee
of its election to do so, at any time on or before the
Remarketing Date, if:
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(i) any of the conditions referred to or set
forth in subsection 8(a) or (b) hereof have not
been met or satisfied in full or any of the
events set forth in subsection 8(c) or 8(d) shall
have occurred; or
(ii) the Remarketing Dealer determines, in its
sole discretion, after consultation with the
Company, that there is material, non-public
information about the Company that is not
available to the Remarketing Dealer which is
necessary for it to fulfill its obligations under
this Agreement.
(c) If this Agreement is terminated pursuant to
this Section 10, such termination shall be without
liability of any party to any other party, except
that, in the case of a termination resulting from a
failure to observe the conditions set forth in
subsections 8(a) or 8(b), or the occurrence of any of
the events set forth in subsection 8(c) or clauses
8(d)(i) through 8(d)(iv), the Company shall reimburse
the Remarketing Dealer for all of its reasonable
out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Remarketing
Dealer. Section 9 and subsections 3(f), 4(h), 10(c)
and 10(d) shall survive such termination and remain in
full force and effect.
(d) Upon the termination of this Agreement
pursuant to subsection 10(b) (except as a result of an
event described in subsection 8(d)(vii)), then, upon
the request of the Remarketing Dealer, the Company
shall pay to the Remarketing Dealer, in same-day funds
by wire transfer to an account designated by the
Remarketing Dealer, the Call Price. The Call Price
shall be paid as soon as practicable after the
Remarketing Dealer has determined the Call Price and
notified the Company of the Call Price, but in any
case no later than the earlier of (x) three Business
Days after written notification to the Company and (y)
the Remarketing Date.
The Remarketing Dealer shall promptly notify the
Company of the Call Price by telephone, confirmed in
writing (which may include facsimile or other
electronic transmission). The Call Price, absent
manifest error, shall be binding and conclusive upon
the parties hereto.
(e) This Agreement shall not be subject to
termination by the Company.
SECTION 11. Remarketing Dealer's Performance; Duty of Care.
The duties and obligations of the Remarketing
Dealer shall be determined solely by the express
provisions of this Agreement and the Indenture. No
implied covenants or obligations of or against the
Remarketing Dealer shall be read into this Agreement
or the Indenture. In the absence of bad faith on the
part of the
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Remarketing Dealer, the Remarketing Dealer
may conclusively rely upon any document furnished to
it, which purports to conform to the requirements of
this Agreement and the Indenture, as to the truth of
the statements expressed in any of such documents. The
Remarketing Dealer shall be protected in acting upon
any document or communication reasonably believed by
it to have been signed, presented or made by the
proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any beneficial
owner or holder of Drs. in its individual capacity or
as Remarketing Dealer for any action or failure to act
in connection with the remarketing or otherwise,
except as a result of its gross negligence or willful
misconduct.
SECTION 12. Governing Law.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws
provisions thereof.
SECTION 13. Term of Agreement.
Unless otherwise terminated in accordance with
the provisions hereof, this Agreement shall remain in
full force and effect from the date hereof until the
earlier of the first day thereafter on which no Drs.
are outstanding or the completion of the remarketing
of the Drs.
Regardless of any termination of this Agreement
pursuant to any of the provisions hereof, the
obligations of each of the parties pursuant to Section
9 and of the Company pursuant to subsections 3(f),
4(h), 10(c) and 10(d) hereof shall remain operative
and in full force and effect until fully satisfied.
SECTION 14. Successors and Assigns.
The rights and obligations of the Company
hereunder may not be assigned or delegated to any
other person without the prior written consent of the
Remarketing Dealer. The rights and obligations of the
Remarketing Dealer hereunder may not be assigned or
delegated to any other person (other than an affiliate
of the Remarketing Dealer) without the prior written
consent of the Company. This Agreement shall inure to
the benefit of and be binding upon the Company and the
Remarketing Dealer and their respective successors and
assigns, and will not confer any benefit upon any
other person, partnership, association or corporation
other than persons, if any, controlling the
Remarketing Dealer within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act
or any other indemnified party to the extent provided
in Section 9 hereof. The
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terms "successors" and "assigns" shall not include any
purchaser of any Drs. merely because of such purchase.
SECTION 15. Headings.
Section headings have been inserted in this
Agreement as a matter of convenience of reference
only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in
the interpretation of any provisions of this
Agreement.
SECTION 16. Severability.
If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid,
inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it
conflicts with any provision of any constitution,
statute, rule or public policy or for any other
reason, such circumstances shall not have the effect
of rendering the provision in question invalid,
inoperative or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any
other provision or provisions of this Agreement
invalid, inoperative or unenforceable to any extent
whatsoever.
SECTION 17. Counterparts.
This Agreement may be executed in several
counterparts, each of which shall be regarded as an
original and all of which shall constitute one and the
same document.
SECTION 18. Amendments; Waivers.
This Agreement may be amended or portions thereof
may be waived by any instrument in writing signed by
each of the parties hereto so long as this Agreement
as amended or the provisions as so waived are not
inconsistent with the Indenture in effect as of the
date of any such amendment or waiver.
SECTION 19. Notices.
Unless otherwise specified, any notices,
requests, consents or other communications given or
made hereunder or pursuant hereto shall be made in
writing (which may include facsimile or other
electronic transmission) and shall be deemed to have
been validly given or made when delivered or, if
earlier, three days after it was mailed, registered or
certified mail, return receipt requested and postage
prepaid, addressed as follows:
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(a) to the Company:
First Industrial, L.P.
311 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Michael T. Tomasz
Facsimile No.: (312) 922-9851
(b) to JPMSI:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
Facsimile No.: (212) 648-5909
or to such other address as the Company or the
Remarketing Dealer shall specify in writing.
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IN WITNESS WHEREOF, each of the Company and the
Remarketing Dealer has caused this Remarketing
Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date
first above written.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
its sole General Partner
By _________________________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By _________________________________________
Name:
Title: