Execution Version
FIRST INDUSTRIAL, L.P.
Issuer
to
U.S. BANK NATIONAL ASSOCIATION
Trustee
Supplemental Indenture No. 8
Dated as of May 17, 2004
$125,000,000
of
6.42% Senior Notes due June 1, 2014
SUPPLEMENTAL INDENTURE NO. 8, dated as of May 17, 2004 (the "Supplemental
Indenture"), between FIRST INDUSTRIAL, L.P., a limited partnership duly
organized and existing under the laws of the State of Delaware (herein called
the "Issuer" or "Operating Partnership"), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE OPERATING PARTNERSHIP
The Operating Partnership has heretofore delivered to the Trustee an
Indenture dated as of May 13, 1997 (the "Indenture"), which has been filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), as an exhibit to the quarterly report on Form
10-Q of First Industrial Realty Trust, Inc. for the fiscal quarter ended March
31, 1997, as amended by Form 10-Q/A No. 1 of the Company filed May 30, 1997,
File No. 1-13102, providing for the issuance from time to time of Debt
Securities of the Operating Partnership (the "Securities").
Section 301 of the Indenture provides for various matters with respect to
any series of Securities issued under the Indenture to be established in an
indenture supplemental to the Indenture.
Section 901(7) of the Indenture provides for the Operating Partnership and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture No. 8, when duly executed and delivered, a valid and binding agreement
in accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the series of
Securities provided for herein by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the Notes,
as follows:
ARTICLE I
RELATION TO INDENTURE: DEFINITIONS
Section 1.1. Relation to Indenture. This Supplemental Indenture constitutes
an integral part of the Indenture.
Section 1.2. Definitions For all purposes of this Supplemental Indenture,
except as otherwise expressly provided for or unless the context otherwise
requires:
(a) Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Indenture; and
(b) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
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"Annual Service Charge" for any period means the aggregate interest expense
for such period in respect of, and the amortization during such period of any
original issue discount of, Indebtedness of the Operating Partnership and its
Subsidiaries and the amount of dividends which are payable during such period in
respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banks in New York City or in Chicago
are authorized or required by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Clearstream Banking" means Clearstream Banking, societe anonyme, its
successors and assigns.
"Closing Date" has the meaning specified in Section 3.1(a) hereof.
"Commission" means the United States Securities and Exchange Commission, or
any successor entity.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Operating Partnership and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Indebtedness of the
Operating Partnership and its Subsidiaries, (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income, (iii) amortization
of debt discount, (iv) provisions for gains and losses on properties and
property depreciation and amortization, (v) the effect of any non-cash charge
resulting from a change in accounting principles in determining Earnings from
Operations for such period, (vi) amortization of deferred charges and (vii)
interest income related to investments irrevocably deposited with an agent of
the Operating Partnership or any of its Subsidiaries, as the case may be, for
the purpose of defeasing any indebtedness or any other obligation (whether
through a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be administered, which
office at the date hereof is located at 60 Livingston Avenue, St. Paul,
Minnesota 55107 and, for purposes of the Place of Payment provisions of Sections
305 and 1002 of the Indenture, is located at 100 Wall Street, Suite 2000, New
York, New York 10005.
"Default Day" has the meaning specified in Section 3.2(b) hereof.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise, (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for Capital
Stock which is not Disqualified Stock or the maturity price or redemption price
of which may, at the option of such Person, be paid in Capital Stock which is
not Disqualified Stock), (ii) is convertible into or exchangeable or exercisable
for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity of the Notes.
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"DTC" means The Depository Trust Company, a New York Corporation, its
successors and assigns.
"Earnings from Operations" for any period means net income excluding gains
and losses on sales of investments, extraordinary items and property valuation
losses, net as reflected in the financial statements of the Operating
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP (except that for purposes hereof, each Subsidiary
of the Operating Partnership shall be treated as if such Subsidiary were a
subsidiary under GAAP).
"Encumbrance" means any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind; provided, however, that the term "Encumbrance"
shall not include any mortgage, lien, charge, pledge or security interest
securing any indebtedness or any other obligation which has been defeased
(whether a covenant defeasance or otherwise) pursuant to the terms of such
indebtedness or other obligation or the terms of any instrument creating or
evidencing it.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System, its successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"Exchange Agreement" means the letter agreement dated May 17, 2004, between
the Issuer and UBS Securities LLC.
"Exchange Certificated Note" means a note in definitive, fully registered
form, without coupons, substantially in the form of Exhibit E hereto.
"Exchange Global Notes" has the meaning specified in Section 2.9(e) hereof.
"Exchange Notes" has the meaning set forth specified in Section 2.1(b)
hereof.
"Exchange Offer" means the offer by the Operating Partnership to exchange
all of the Initial Notes of a series for Exchange Notes of the same series.
"Exchange Offer Registration Statement" has the meaning specified in
Section 3.1(a) hereof.
"GAAP" means generally accepted accounting principles as used in the United
States applied on a consistent basis as in effect from time to time; provided
that solely for purposes of any calculation required by the financial covenants
contained herein, "GAAP" shall mean generally accepted accounting principles as
used in the United States on the date hereof, applied on a consistent basis.
"Global Notes" means the Initial Global Note and the Exchange Global Note.
"Holders" has the meaning specified in Section 3.1(a) hereof.
"Indebtedness" of the Operating Partnership or any of its Subsidiaries
means any indebtedness of the Operating Partnership or any of its Subsidiaries,
whether or not contingent, in respect of (a) borrowed money or evidenced by
bonds, notes, debentures or similar instruments whether or not such indebtedness
is secured by any Encumbrance existing on property owned by the Operating
Partnership or any of its Subsidiaries, (b) indebtedness for borrowed money of a
Person other than the Operating Partnership or a Subsidiary of the Operating
Partnership which is secured by any Encumbrance existing on property owned by
the Operating Partnership or any of its Subsidiaries, to the extent of the
lesser of (x) the amount of indebtedness so secured and (y) the fair market
value of the property subject to such Encumbrance, (c) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, except any such balance that
constitutes an accrued expense or trade payable,
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and all conditional sale obligations or obligations under any title retention
agreement, (d) the principal amount of all obligations of the Operating
Partnership or any of its Subsidiaries with respect to redemption, repayment or
other repurchase of any Disqualified Stock, (e) any lease of property by the
Operating Partnership or any of its Subsidiaries as lessee which is reflected on
the Operating Partnership's consolidated balance sheet determined in accordance
with GAAP (except that for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under GAAP)
as a capitalized lease or (f) interest rate swaps, caps or similar agreements
and foreign exchange contracts, currency swaps or similar agreements to the
extent, in the case of items of indebtedness set forth above, that any such
items (other than letters of credit) would appear as a liability on the
Operating Partnership's consolidated balance sheet determined in accordance with
GAAP (except that for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under
GAAP), and also includes, to the extent not otherwise included, any obligation
by the Operating Partnership or any of its Subsidiaries to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of collection
in the ordinary course of business), Indebtedness of another Person (other than
the Operating Partnership or any of its Subsidiaries) (it being understood that
Indebtedness shall be deemed to be incurred by the Operating Partnership or any
of its Subsidiaries whenever the Operating Partnership or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof);
provided; however, that the term "Indebtedness" shall not include any
indebtedness or any other obligation which has been defeased (whether through a
covenant defeasance or otherwise) pursuant to the terms of such indebtedness or
other obligation or the terms of any instrument creating or evidencing it.
"Indenture" has the meaning specified in the introductory paragraph hereof.
"Initial Certificated Notes" has the meaning specified in Section 2.9(d)
hereof.
"Initial Global Notes" has the meaning specified in Section 2.9(c) hereof.
"Initial Notes" has the meaning specified in Section 2.1(a) hereof.
"Initial Purchasers" means UBS Securities LLC and any assigns thereof.
"Initial Regulation S Global Note" means a single fully registered global
Initial Note in book-entry form, substantially in the form of Exhibit B attached
hereto.
"Initial Restricted Global Note" means a single fully registered global
Initial Note in book-entry form, substantially in the form of Exhibit A attached
hereto.
"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act. "Interest Payment Date" has the meaning specified in Section 2.3 hereof.
"Issuer" has the meaning specified in the introductory paragraph hereof.
"Make-Whole Amount" means, in connection with any optional redemption of
any Note, the excess, if any, of (i) the aggregate present value as of the date
of such redemption of each dollar of principal being redeemed or paid and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of such dollar if such redemption had
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given) from the date on which
such principal and interest would have been payable if such redemption had not
been made, over (ii) the aggregate principal amount of the Notes being redeemed.
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"Non-U.S. Person" means a Person that is not a U.S. Person as defined in
Regulation S, and includes dealers or other professional fiduciaries in the
United States acting on a discretionary basis for foreign beneficial owners
(other than an estate or trust) in offshore transactions meeting the
requirements of Rule 904 of Regulation S.
"Notes" means the Initial Notes and the Exchange Notes.
"Operating Partnership" has the meaning specified in the introductory
paragraph hereof.
"Private Placement Legend" has the meaning specified in Section 4.1(a)
hereof.
"Purchase Agreement" means the form of Purchase Agreement to be entered
into, between the Operating Partnership, First Industrial Realty Trust, Inc. and
the Initial Purchasers as contemplated by the Exchange Agreement.
"QIB" means a qualified institutional buyer, as defined in Rule 144A under
the Securities Act.
"Redemption Price" has the meaning specified in Section 2.5 hereof.
"Registration Rights Agreement" means the form of Registration Rights
Agreement to be entered into, between the Operating Partnership and the Initial
Purchasers as contemplated by the Exchange Agreement.
"Regular Record Date " has the meaning specified in Section 2.3 hereof.
"Regulation S" means Regulation S under the Securities Act.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For such purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury Yield in the above manner, then the Treasury Yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Operating Partnership.
"Required Filing Dates" has the meaning specified in Section 2.12 hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" has the meaning specified in the recitals hereof.
"Securities Act" has the meaning specified in the recitals hereof.
"Shelf Registration Statement" has the meaning specified in Section 3.1(c).
"Special Interest Premium" has the meaning specified in Section 3.2.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination of the Make-Whole Amount, then
such other reasonably comparable index which shall be designated by the
Operating Partnership.
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"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Supplemental Indenture" has the meaning specified in the introductory
paragraph hereof.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Operating Partnership and its
Subsidiaries determined in accordance with GAAP (except that for the purposes
hereof, each Subsidiary of the Operating Partnership shall be treated as if such
Subsidiary were a subsidiary under GAAP), but excluding accounts receivable and
intangibles; provided, however, that the term "Total Assets" shall not include
any assets which have been deposited in trust to defease any indebtedness or any
other obligation (whether through a covenant defeasance or otherwise) pursuant
to the terms of such indebtedness or other obligation or the terms of any
instrument creating or evidencing it.
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Operating Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (except that
for the purposes hereof, each Subsidiary of the Operating Partnership shall be
treated as if such Subsidiary were a subsidiary under GAAP), but excluding
accounts receivable and intangibles; provided, however, that the term "Total
Unencumbered Assets" shall not include any assets which have been deposited in
trust to defease any indebtedness or any other obligation (whether through a
covenant defeasance or otherwise) pursuant to the terms of such indebtedness or
other obligation or the terms of any instrument creating or evidencing it.
"Trustee" has the meaning specified in the introductory paragraph hereof.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Operating
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP (except
that for the purposes hereof, each Subsidiary of the Operating Partnership shall
be treated as if such Subsidiary were a subsidiary under GAAP).
"Unsecured Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Operating Partnership or any of
its Subsidiaries.
ARTICLE II
THE SERIES OF NOTES
Section 2.1. Title of the Notes.
(a) There shall be a series of Securities designated the "6.42% Senior
Notes due 2014" (the "Initial Notes").
(b) There shall be a series of Securities designated the "6.42% Senior
Notes due 2004" (the "Exchange Notes"). The Exchange Notes are to be issued in
exchange for the Initial Notes as provided in this Eighth Supplemental
Indenture, the Exchange Agreement and the Registration Rights Agreement.
Section 2.2. Limitation on Aggregate Principal Amount.
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(a) The Initial Notes will be initially limited to an aggregate principal
amount of $125,000,000.
(b) The Exchange Notes will be initially limited to an aggregate principal
amount of up to $125,000,000 (but in no event in excess of the principal amount
of the Initial Notes tendered in exchange therefor in an Exchange Offer).
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Notes, is intended to or shall limit execution by the
Operating Partnership or authentication or delivery by the Trustee of Notes
under the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107
and 1305 of the Indenture.
Section 2.3. Interest and Interest Rates; Maturity Date of Notes. The Notes
will bear interest at 6.42% per annum and will mature on June 1, 2014. The Notes
will bear interest from May 17, 2004 or from the immediately preceding Interest
Payment Date to which interest has been paid, payable semi-annually in arrears
on June 1 and December 1 of each year, commencing December 1, 2004 (each, an
"Interest Payment Date"), and, if not otherwise an Interest Payment Date, at the
Stated Maturity, to the Persons in whose name the applicable Notes are
registered in the Security Register at the close of business on the preceding
May 1 or November 1 (whether or not a Business Day), as the case may be (each, a
"Regular Record Date"). Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. The interest so payable on any Note which is
not punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
the Indenture.
If an Initial Note is exchanged in an Exchange Offer prior to the Regular
Record Date for the first Interest Payment Date following such exchange, accrued
and unpaid interest, if any, on such Note, up to but not including the date of
issuance of the Exchange Note(s) issued in exchange for such Initial Note, shall
be paid on the first Interest Payment Date for such Exchange Note(s) to the
Holder or Holders of such Exchange Note(s) on the first Regular Record Date with
respect to such Exchange Note(s). If such Initial Note is exchanged in an
Exchange Offer subsequent to the Regular Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to such Initial
Note and any accrued and unpaid interest on the Exchange Note(s) issued in
exchange for such Initial Note, through the day before such Interest Payment
Date, shall be paid on such Interest Payment Date to the Holder of such Initial
Note on such Regular Record Date.
If any Interest Payment Date or Stated Maturity falls on a day that is not
a Business Day, the required payment shall be made on the next Business Day as
if it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or Stated Maturity, as the case may be.
Section 2.4. Limitations on Incurrence of Indebtedness.
(a) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness, other than intercompany Indebtedness
(representing Indebtedness to which the only parties are the Operating
Partnership and any of its Subsidiaries (but only so long as such Indebtedness
is held solely by any of the Operating Partnership and any of its
Subsidiaries)), if, immediately after giving effect to the incurrence of such
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Operating
Partnership and its Subsidiaries on a consolidated basis determined in
accordance with GAAP (except that
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for purposes hereof, each Subsidiary of the Operating Partnership shall be
treated as if such Subsidiary were a subsidiary under GAAP) is greater than 60%
of the sum of (without duplication) (i) the Total Assets as of the end of the
calendar quarter covered in the Operating Partnership's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Indebtedness and
(ii) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the
extent such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Indebtedness), by the Operating Partnership or any
of its Subsidiaries since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional
Indebtedness.
(b) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur Indebtedness secured by any Encumbrance upon any of the
property of the Operating Partnership or any of its Subsidiaries if, immediately
after giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Operating Partnership and its Subsidiaries on a
consolidated basis determined in accordance with GAAP (except that for the
purposes hereof, each Subsidiary of the Operating Partnership shall be treated
as if such Subsidiary were a subsidiary under GAAP) which is secured by any
Encumbrance on property of the Operating Partnership or any of its Subsidiaries
is greater than 40% of the sum of (without duplication) (i) the Total Assets as
of the end of the calendar quarter covered in the Operating Partnership's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Exchange Act, with the Trustee) prior to the incurrence of such additional
Indebtedness and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Operating
Partnership or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(c) The Operating Partnership and its Subsidiaries may not at any time own
Total Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Operating Partnership and
its Subsidiaries on a consolidated basis determined in accordance with GAAP
(except that for the purposes hereof, each Subsidiary of the Operating
Partnership shall be treated as if such Subsidiary were a subsidiary under
GAAP).
(d) The Operating Partnership will not, and will not permit any of its
Subsidiaries to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four consecutive
fiscal quarters most recently ended prior to the date on which such additional
Indebtedness is to be incurred shall have been less than 1.5:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Operating Partnership and its Subsidiaries
since the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Indebtedness, had occurred at
the beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Operating Partnership and its Subsidiaries since the first
day of such four-quarter period had been repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such period); (iii) in the case of
Acquired Indebtedness or Indebtedness incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro forma
calculation;
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and (iv) in the case of any acquisition or disposition by the Operating
Partnership or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Indebtedness had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to be
"incurred" by the Operating Partnership or a Subsidiary of the Operating
Partnership whenever the Operating Partnership or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof.
Section 2.5. Optional Redemption. No sinking fund shall be provided for the
Notes. The Notes may be redeemed at any time at the option of the Operating
Partnership, in whole or in part (equal to $1,000 or an integral multiple
thereof), at a redemption price (the "Redemption Price") equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date (as defined in the Indenture) and (ii) the Make-Whole
Amount, if any, with respect to such Notes.
If notice of redemption has been given as provided in the Indenture and
funds for the redemption of any Notes called for redemption shall have been made
available on the Redemption Date referred to in such notice, such Notes will
cease to bear interest on the Redemption Date and the only right of the Holders
of the Notes from and after the Redemption Date will be to receive payment of
the Redemption Price upon surrender of such Notes in accordance with such
notice.
Section 2.6. Places of Payment. The Places of Payment where the Notes may
be presented or surrendered for payment, where the Notes may be surrendered for
registration of transfer or exchange and where notices and demands to and upon
the Operating Partnership in respect of the Notes and the Indenture may be
served shall be in (i) the Borough of Manhattan, The City of New York, New York,
and the office or agency for such purpose shall initially be located at U.S.
Bank National Association, 100 Wall Street, Suite 2000, New York, New York 10005
and (ii) the City of St. Paul, Minnesota and the office or agency for such
purpose shall initially be located at U.S. Bank National Association, 60
Livingston Avenue, St. Paul, Minnesota 55107.
Section 2.7. Method of Payment. Payment of the principal of and interest on
the Notes not represented by a Global Security will be made at the Corporate
Trust Office maintained for that purpose in the Borough of Manhattan, The City
of New York, New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Operating Partnership,
payments of interest on the Notes may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto located within the United States. All payments of principal and
interest in respect of the Notes shall be made by the Issuer in immediately
available funds.
Section 2.8. Currency. Principal and interest on the Notes shall be payable
in United States Dollars or in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
Section 2.9. Form of Notes.
(a) The Initial Notes shall be in the form of Exhibit A, Exhibit B or
Exhibit C hereto, as applicable, and the Exchange Notes shall be in the form of
Exhibit D or Exhibit E hereto, as applicable.
9
(b) Initial Notes offered and sold to QIBs in reliance on Rule 144A as
provided in the Purchase Agreement shall be issued in book-entry form and shall
be represented by a single, permanent global note in fully registered form,
without coupons, substantially in the form of Exhibit A hereto and shall bear
the legends set forth in Section 5.1(a) and Section 5.1 (b) hereof (the "Initial
Restricted Global Note"). Upon issuance, the Initial Restricted Global Note
shall be registered in the name of "Cede & Co.," as nominee of DTC, duly
executed by the Operating Partnership and authenticated by the Trustee and
deposited with or on behalf of DTC.
(c) Initial Notes offered and sold to Non-U.S. Persons in reliance on
Regulation S as provided in the Purchase Agreement shall be issued in book-entry
form and shall be represented by a single, permanent global note in definitive,
fully registered form, without coupons, substantially in the form of Exhibit B
hereto and shall bear the legends set forth in Section 5.1 (a) and Section 5.1
(b) hereof (the "Initial Regulation S Global Note," and together with the
Initial Restricted Global Note, the "Initial Global Notes"). Upon issuance, the
Initial Regulation S Global Note shall be registered in the name of "Cede &
Co.," as nominee for DTC, duly executed by the Operating Partnership and
authenticated by the Trustee and deposited with or on behalf of DTC for the
accounts of Euroclear or Clearstream Banking. Interests in the Initial
Regulation S Global Note may only be held through Euroclear or Clearstream
Banking.
(d) Initial Notes offered and sold to Institutional Accredited Investors
that are not QIBs or Non-U.S. Persons as provided in the Purchase Agreement
shall be issued in definitive, fully registered certificated form, without
coupons, substantially in the form of Exhibit C hereto and shall bear the
legends set forth in Section 5.1 (a) hereof (the "Initial Certificated Notes").
Upon issuance, any such Initial Certificated Note or the transfer thereof shall
be duly executed by the Operating Partnership and authenticated by the Trustee.
Upon the registration of the transfer of any Initial Certificated Note to a QIB
or Non-U.S. Person, such Initial Certificated Note shall be exchanged for a
beneficial interest in the applicable Initial Global Note. Except as provided in
Section 4.1 (b), interests in an Initial Global Note may not be exchanged for
Initial Certificated Notes and the Operating Partnership waives any
discretionary right it may otherwise have to cause the Notes to be issued in
certificated form.
(e) In the event all or a portion of the Initial Notes of any series are
tendered in an Exchange Offer, such Notes or the portions thereof being
exchanged shall be exchanged for a single, permanent global note in definitive,
fully registered form, without coupons, substantially in the form of Exhibit D
hereto (the "Exchange Global Notes") and shall bear the legends set forth in
Section 5.1 (c) hereof. Upon issuance, each Exchange Global Note shall be
registered in the name of "Cede & Co.," as nominee of DTC, duly executed by the
Operating Partnership and authenticated by the Trustee and deposited with or on
behalf of DTC. Except as provided in Section 4.1 (b), Exchange Certificated
Notes shall not be issued and the Operating Partnership waives any discretionary
right it may otherwise have to cause the Notes to be issued in certificated
form.
Section 2.10. Registrar and Paying Agent. The Trustee shall initially serve
as Registrar and Paying Agent for the Notes.
Section 2.11. Defeasance. The provisions of Sections 1402 and 1403 of the
Indenture, together with the other provisions of Article Fourteen of the
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Indenture shall apply to the covenants set forth in Sections 2.4 and 2.12 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Indenture.
Section 2.12. Provision of Financial Information. Whether or not the
Operating Partnership is subject to Section 13 or 15(d) of the Exchange Act, the
Operating Partnership will, to the extent permitted under the Exchange Act, file
with the Commission the annual reports, quarterly reports and other
10
documents which the Operating Partnership would have been required to file with
the Commission pursuant to such Section 13 or 15(d) if the Operating Partnership
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Operating
Partnership would have been required so to file such documents if the Operating
Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date if the Operating Partnership is not then subject to Section
13 or 15(d) of the Exchange Act, (i) transmit by mail to all Holders, as their
names and addresses appear in the Security Register, without cost to such
Holders, copies of the annual reports and quarterly reports which the Operating
Partnership would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Operating Partnership were
subject to such Sections, and (ii) file with the Trustee copies of annual
reports, quarterly reports and other documents that the Operating Partnership
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Operating Partnership were subject to such
Sections and (y) if filing such documents by the Operating Partnership with the
Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective Holder.
Section 2.13. Waiver of Certain Covenants. Notwithstanding the provisions
of Section 1009 of the Indenture, the Operating Partnership may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1008, inclusive, of the Indenture, with Sections 2.4 and 2.12
of this Supplemental Indenture and with any other term, provision or condition
with respect to the Notes (except any such term, provision or condition which
could not be amended without the consent of all Holders of the Notes, as
applicable), if before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding Notes, as applicable, by
act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition. Except to the extent so
expressly waived, and until such waiver shall become effective, the obligations
of the Operating Partnership and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
Section 2.14. Other Terms and Conditions. The Notes shall have such other
terms and conditions as provided in the form thereof attached as Exhibit A, B,
C, D and E hereto.
Section 2.15. Further Issues. The Operating Partnership may, from time to
time, without the consent of the Holders, create and issue further securities
having the same terms and conditions as the Notes in all respects, except for
issue date, issue price and the first payment of interest thereon. Additional
Notes issued in this manner will be consolidated with and will form a single
series with the previously outstanding Notes. Notice of any such issuance will
be given to the Trustee and a new supplemental indenture will be executed in
connection with the issuance of such securities.
Section 2.16. Authorized Signatories. For purposes of this Eighth
Supplemental Indenture, the first sentence of Section 303 of the Indenture is
replaced in its entirety with the following: "The Securities and any coupons
appertaining thereto shall be executed on behalf of the Issuer by the General
Partner by its Chairman of the Board, its President, its Chief Executive
Officer, its Chief Financial Officer or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries."
Section 2.17. Registration Rights. The Holders of the Initial Notes shall
be entitled to the benefits of the Registration Rights Agreement, as described
in Article III hereof.
11
Section 2.18. Special Interest Premium. If the Operating Partnership fails
to comply with certain provisions of the Registration Rights Agreement, then a
Special Interest Premium shall become payable in respect of the Notes as
provided in Article III hereof.
ARTICLE III
REGISTRATION RIGHTS
Section 3.1. Registration Rights Agreement.
(a) The Operating Partnership shall enter into the Registration Rights
Agreement with the Initial Purchasers for the benefit of the holders of the
Initial Notes (the "Holders") wherein the Operating Partnership shall agree, for
the benefit of the Holders of the Notes, to use its reasonable best efforts (i)
to file with the Commission within 90 calendar days after the date on which the
Operating Partnership delivers the Notes to the Initial Purchasers (the "Closing
Date") a registration statement (the "Exchange Offer Registration Statement")
with respect to the Exchange Notes and (ii) to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act within
135 calendar days after the Closing Date. Promptly after the Exchange Offer
Registration Statement has been declared effective, the Operating Partnership
shall offer to the Holders the opportunity to exchange all their Notes of a
series for Exchange Notes of the same series pursuant to the Exchange Offer. The
Operating Partnership shall keep the Exchange Offer open for not less than 30
calendar days (or longer, if required by applicable law) after the date on which
the notice of the Exchange Offer is mailed to the Holders of the Initial Notes
but shall, in any event, use its reasonable best efforts to cause the Exchange
Offer to be consummated within 180 days of the Closing Date. For each Initial
Note validly tendered to the Operating Partnership pursuant to the Exchange
Offer, the Holder of such Initial Note shall receive an Exchange Note of the
same series having a principal amount equal to the principal amount of the
tendered Initial Note.
(b) Each Holder of the Initial Notes (other than certain specified Holders)
that wishes to exchange the Initial Notes for Exchange Notes in the Exchange
Offer shall be required to represent that (i) it is not an affiliate of the
Operating Partnership (within the meaning of Rule 405 of the Securities Act),
(ii) the Exchange Notes to be received by it were acquired in the ordinary
course of its business and (iii) at the time of the Exchange Offer, it has no
arrangement with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes.
(c) The Registration Rights Agreement also shall provide that if, (i)
because of any change in law or in currently prevailing interpretations of the
staff of the Commission, the Operating Partnership is not permitted to effect
the Exchange Offer, (ii) the Exchange Offer is not consummated within 180 days
of the Closing Date or (iii) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Operating Partnership within the meaning of the Securities Act or as a
broker-dealer), then in each case, the Operating Partnership shall (x) promptly
deliver to the Holders written notice thereof and (y) at the Operating
Partnership's sole expense (a) as promptly as practicable (but in no event more
than 60 days after so required or requested pursuant to the Registration Rights
Agreement), file a shelf registration statement covering resales of the Notes
(the "Shelf Registration Statement"), (b) use its reasonable best efforts to
cause the Shelf Registration Statement to be declared effective under the
Securities Act and (c) use its reasonable best efforts to keep effective the
Shelf Registration Statement until the earlier of two years (or, if Rule 144(k)
is amended to provide a shorter restrictive period, the end of such shorter
period) after the Closing Date or such time as all of the applicable Notes have
been sold thereunder. The Operating Partnership shall, if a Shelf Registration
Statement is filed, provide to each
12
Holder of the Initial Notes copies of the prospectus that is a part of the Shelf
Registration Statement, notify each such Holder when the Shelf Registration
Statement for the Notes has become effective and take certain other actions as
are required to permit unrestricted resales of the Notes. A Holder that sells
Notes pursuant to the Shelf Registration Statement shall be required to be named
as a selling security Holder in the related prospectus, to provide information
related thereto and to deliver such prospectus to purchasers, shall be subject
to certain of the civil liability provisions under the Securities Act in
connection with such sales and shall be bound by the provisions of the
Registration Rights Agreement that are applicable to such a Holder (including
certain indemnification rights and obligations).
Section 3.2. Special Interest Premium. If the Operating Partnership fails
to comply with certain provisions of the Registration Rights Agreement, in each
case as described below, then a special interest premium (the "Special Interest
Premium") shall become payable in respect of the Notes as follows:
(a) If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Closing Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or prior to
the 135th day following the Closing Date or (iii) the Exchange Offer is not
consummated or the Shelf Registration Statement is not declared effective on or
prior to the 180th day following the Closing Date, the Special Interest Premium
shall accrue from and including the next day following each of (a) such 90-day
period in the case of clause (i) above, (b) such 135-day period in the case of
clause (ii) above and (c) such 180-day period in the case of clause (iii) above,
in each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions shall in no
event exceed 0.50% per annum. If the Exchange Offer Registration Statement is
not declared effective on or prior to the 135th day following the Closing Date
and the Operating Partnership shall request Holders of Notes to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement, the Notes owned by Holders who do not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement shall not be entitled to any such increase in the
interest rate for any day after the 180th day following the Closing Date. Upon
(1) the filing of the Exchange Offer Registration Statement after the 90-day
period described in clause (i), (2) the effectiveness of the Exchange Offer
Registration Statement after the 135-day period described in clause (ii) above
or (3) the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, after the 180-day period described
in clause (iii) above, the interest rate on each series of Notes from the date
of such effectiveness or consummation, as the case may be, shall be reduced to
the original interest rate provided for herein for such series of Notes.
(b) If a Shelf Registration Statement is declared effective, and if the
Operating Partnership fails to keep such Shelf Registration Statement
continuously (x) effective or (y) useable for resales for the period required by
the Registration Rights Agreement due to certain circumstances relating to
pending corporate developments, public filings with the Commission and similar
events, or because the prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, and such
failure continues for more than 60 days (whether or not consecutive) in any
12-month period (the 61st day being referred to as the "Default Day"), then from
the Default Day until the earlier of (i) the date that the Shelf Registration
Statement is again deemed effective or is useable, (ii) the date that is the
second anniversary of the Closing Date (or, if Rule 144(k) is amended to provide
a shorter restrictive period, the end of such shorter period) or (iii) the date
as of which all of the Notes are sold pursuant to the Shelf Registration
Statement, the Special Interest Premium shall accrue at a rate equal to 0.50%
per annum.
13
Section 3.3. Legend. Each Note shall contain a legend to the effect that
the Holder thereof, by its acceptance thereof, shall be deemed to have agreed to
be bound by the provisions of the Registration Rights Agreement. Such legend
shall be in the form set forth in Section 5.1 (a) hereof.
ARTICLE IV
TRANSFER AND EXCHANGE
Section 4.1. Transfer and Exchange.
(a) By its acceptance of any Initial Note represented by a certificate
bearing the legend set forth in Section 5.1(a) hereof (the "Private Placement
Legend"), each Holder of, and beneficial bearer of an interest in, such Initial
Note acknowledges the restrictions on transfer of such Initial Note and agrees
that it shall transfer such Initial Note only in accordance with such
restrictions. Each purchaser (other than the Initial Purchasers) of the Notes
and each Person to whom the Notes are transferred shall, prior to the Resale
Restriction Termination Date (as defined in the Private Placement Legend), be
deemed to have acknowledged, represented and agreed to the matters and
restrictions on transfer to be described under the heading "Notice to Investors"
in an offering memorandum of the Operating Partnership which will relate to the
sale of the Initial Notes in an offering exempt from the registration
requirements of the Securities Act. Upon the registration of transfer, exchange
or replacement of an Initial Note not bearing the Private Placement Legend, the
Trustee shall deliver an Initial Note or Initial Notes that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of an Initial Note bearing the Private Placement Legend, the Trustee
shall deliver an Initial Note or Initial Notes bearing the Private Placement
Legend, unless such legend may be removed from such Note as provided in this
Section 4.1(a). If the Private Placement Legend has been removed from an Initial
Note, as provided herein, no other Initial Note issued in exchange for all or
any part of such Initial Note shall bear such legend, unless the Operating
Partnership has reasonable cause to believe that such other Initial Note
represents a "restricted security" within the meaning of Rule 144 under the
Securities Act and instructs the Trustee in writing to cause a legend to appear
thereon. Each Initial Note shall bear the Private Placement Legend unless and
until:
(i) a transfer of such Initial Note is made pursuant to an effective
Shelf Registration Statement, in which case the Private Placement Legend
shall be removed from such Initial Note so transferred at the request of
the Holder; or
(ii) there is delivered to the Operating Partnership such satisfactory
evidence, which may include an opinion of independent counsel licensed to
practice law in the State of New York, as may reasonably be requested by
the Operating Partnership confirming that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers of such Initial Note shall not violate the registration and
prospectus delivery requirements of the Securities Act; provided, that the
Trustee shall not be required to determine (but may rely on a determination
made by the Operating Partnership with respect to) the sufficiency of any
such evidence; and upon written direction of the Operating Partnership, the
Trustee shall authenticate and deliver in exchange for such Initial Note,
an Initial Note or Initial Notes representing the same aggregate principal
amount of the Initial Note being exchanged) without such legend.
(b) The Initial Global Note or Exchange Global Note, as the case may be,
shall be exchanged by the Operating Partnership for one or more Initial
Certificated Notes or Exchange Certificated Notes, as applicable, if (i) DTC (1)
has notified the Operating Partnership that it is unwilling or unable to
continue as, or ceases to be, a clearing agency registered under Section 17A of
the Exchange Act and (2) a successor to DTC registered as a clearing agency
under Section 17A of the Exchange Act is
14
not able to be appointed by the Operating Partnership within 90 calendar days or
(ii) DTC is at any time unwilling or unable to continue as depositary and the
Operating Partnership is not able to appoint a successor to DTC within 90
calendar days. If an Event of Default occurs and is continuing, the Operating
Partnership shall, at the request of the Trustee or the Holder thereof, exchange
all or part of the Initial Global Note or Exchange Global Note, as the case may
be, for one or more Initial Certificated Notes or Exchange Certificated Notes,
as applicable. Whenever a Global Note is exchanged for one or more Initial
Certificated Notes or Exchange Certificated Notes, as the case may be, it shall
be surrendered by the Holder thereof to the Trustee and cancelled by the
Trustee. All Initial Certificated Notes or Exchange Certificated Notes issued in
exchange for a Global Note or a portion thereof shall be registered in such
names, and delivered, as DTC shall instruct the Trustee. Any Initial
Certificated Notes issued pursuant to this Section 4.1(b) shall include the
Private Placement Legend, except as set forth in Section 4.1(a) hereof.
(c) Any Initial Notes that are presented to the Trustee for exchange
pursuant to an Exchange Offer shall be exchanged for Exchange Notes of equal
principal amount upon surrender to the Trustee in accordance with the terms of
the Exchange Offer. Whenever any Initial Notes are so surrendered for exchange,
the Operating Partnership shall execute, and the Trustee shall authenticate and
deliver to the surrendering Holder thereof, Exchange Notes in the same aggregate
principal amount as the Initial Notes so surrendered.
(d) Any Holder of a Global Note shall, by acceptance of such Global Note,
agree that transfers of beneficial interests in such Global Note may be effected
only through a book-entry system maintained by such Holder (or its agent), and
that ownership of a beneficial interest in the Notes represented thereby shall
be required to be reflected in book-entry form. Transfers of a Global Note shall
be limited to transfers in whole and not in part, to DTC, its successors and
their respective nominees. Interests of beneficial owners in a Global Note shall
be transferred in accordance with the rules and procedures of DTC (or its
successors).
ARTICLE V
LEGENDS
Section 5.1. Legends. The following legends shall appear on each Initial
Note and each Exchange Note.
(a) Except as provided in Section 4.1(a) hereof, each Initial Note shall
bear the following legends on the face thereof:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED
AND MAY BE TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $1,000 ($100,000
FOR INSTITUTIONAL ACCREDITED INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN
EXCESS THEREOF.
15
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE
DATE OF THIS NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR
ANY AFFILIATE OF THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF SUCH NOTE), ONLY (a) TO THE OPERATING PARTNERSHIP OR ONE
OF THE INITIAL PURCHASERS OR BY, THROUGH OR IN A TRANSACTION APPROVED BY,
AN INITIAL PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (d) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT) ACQUIRING THE
SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH
OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH
TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT
PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (e)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN
INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE
ACCOUNT OR BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH
OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE
TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF
THE SERIES.
(b) In addition to the legends set forth in Section 4.1(a), each Initial
Global Note shall also bear the following legends on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO.
16
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR
ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC
OR A NOMINEE OF SUCH SUCCESSOR.
(c) The Exchange Global Note shall bear the following legends on the face
thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR
ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC
OR A NOMINEE OF SUCH SUCCESSOR.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
Section 6.2. Governing Law. This Supplemental Indenture and the Notes shall
be governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions.
Section 6.3. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its general partner
By: /s/ M. Havala
---------------------------------------
Name: Michael J. Havala
Title: CFO
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Richard Prokosch
---------------------------------------
Name: Richard Prokosch
Title: Vice President
18
Exhibit A to Supplemental Indenture
FORM OF INITIAL RESTRICTED GLOBAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $1,000 ($100,000 FOR INSTITUTIONAL ACCREDITED
INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY
AFFILIATE (AS SUCH TERM IS DEFINED UNDER RULE 144(A)(1) OF THE SECURITIES aCT)
OF THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
SUCH NOTE(S)), ONLY (a) TO THE OPERATING PARTNERSHIP OR ONE OF THE INITIAL
PURCHASERS OR BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL PURCHASER,
(b) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (c) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (d) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR
(AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT)
ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR
OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH
TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (e) PURSUANT TO
OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN INSTITUTION THAT IS
NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON) WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (f)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE BEING COMPLETED
AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
A-2
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: 32055R AK3 $125,000,000
RESTRICTED GLOBAL NOTE
FIRST INDUSTRIAL, L.P.
6.42% SENIOR NOTE DUE 2014
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Operating
Partnership," which term shall include any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS on June 1, 2014 and to pay interest on the
outstanding principal amount thereon from May 17, 2004, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year, commencing
December 1, 2004, at the rate of 6.42% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. All payments of
principal, Make-Whole Amount, if any, and interest in respect of this Note will
be made by the Operating Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this instrument to be duly
executed under its corporate seal.
Dated: May 17, 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its general partner
By:
---------------------------------------
Name:
Title:
[Seal]
Attest:
- -------------------------------
Assistant Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
------------------------------------
Authorized Signatory
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REVERSE OF SECURITY
Notes of this series are one of a duly authorized issue of debt securities of
the Operating Partnership (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of May 13, 1997, as
supplemented by Supplemental Indenture No. 8, dated as of May 17, 2004 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank National Association (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Security is one
of the series designated in the first page thereof, limited in aggregate
principal amount to $125,000,000.
Notes of this series may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Notes, not less than 30
nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Operating Partnership on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Operating Partnership, in each case, upon compliance by the Operating
Partnership with certain conditions set forth in the Indenture, which provisions
apply to this Note.
If this Note is exchanged in an Exchange Offer prior to the Regular Record Date
for the first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date of issuance of
the Note(s) issued in exchange (the "Exchange Note") for this Note, shall be
paid on the first Interest Payment Date for such Exchange Note(s) to the Holder
or Holders of such Exchange Note(s) on the first Regular Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Regular Record Date for the first Interest Payment Date
following such exchange but on or prior to the Interest Payment Date, then any
such accrued and unpaid interest with respect to this Note and any accrued and
unpaid interest on the Exchange Note(s) issued in exchange for this Note,
through the day before such Interest Payment Date, shall be paid on such
Interest Payment Date to the Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the Registration Rights
Agreement to be executed on or about May 24, 2004 (the "Registration Rights
Agreement") among the Issuer and UBS Securities LLC and its assigns, if any
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
If (i) a registration statement with respect to the Exchange Notes (the
"Exchange Offer Registration Statement") is not filed with the Commission on or
prior to the 90th day following the Closing Date,
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(ii) the Exchange Offer Registration Statement is not declared effective on or
prior to the 135th day following the Closing Date or (iii) the Exchange Offer is
not consummated or the shelf registration statement covering resales of the
Notes (the "Shelf Registration Statement") is not declared effective on or prior
to the 180th day following the Closing Date, the Special Interest Premium shall
accrue from and including the next day following each of (a) such 90-day period
in the case of clause (i) above, (b) such 135-day period in the case of clause
(ii) above and (c) such 180-day period in the cause of clause (iii) above, in
each case at a rate equal to 0.50% per annum. The aggregate amount of the
Special Interest Premium payable pursuant to the above provisions shall in no
event exceed 0.50% per annum. If the Exchange Offer Registration Statement is
not declared effective on or prior to the 135th day following the Closing Date
and the Operating Partnership shall request the Holder of this Note to provide
the information called for by the Registration Rights Agreement for inclusion in
the Shelf Registration Statement and the Holder of this Note does not deliver
such information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note shall not be
entitled to any such increase in the interest rate for any day after the 180th
day following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, shall be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the Operating
Partnership fails to keep such Shelf Registration Statement continuously (x)
effective or (y) useable for resales for the period required by the Registration
Rights Agreement due to certain circumstances relating to pending corporate
developments, public filings with the Commission and similar events, or because
the prospectus contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and such failure continues for more than 60
days (whether or not consecutive) in any 12-month period (the 61st day being
referred to as the "Default Day"), then from the Default Day until the earlier
of (i) the date that is the second anniversary of the Closing Date (or, if Rule
144(k) of the Securities Act is amended to provide a shorter restrictive period,
the end of such shorter period) or (ii) the date as of which this Note is sold
pursuant to the Shelf Registration Statement, the Special Interest Premium shall
accrue at a rate equal to 0.50% per annum.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder of
this Note shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Notes of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of the principal of,
and Make-Whole Amount, if any, and interest on the Notes on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the
A-7
Notes of each series to be affected under the Indenture at any time by the
Operating Partnership and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Notes of each series
of Notes then Outstanding affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Operating Partnership
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Amount, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Operating Partnership in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Notes are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Operating Partnership and the Security Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Operating Partnership, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of, Make-Whole Amount,
if any, or interest in respect of this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Operating Partnership or the General Partner or of any successor, either
directly or through the Operating Partnership or the General Partner or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-8
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Operating Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Notes, and reliance may be placed only
on the other identification numbers printed hereon.
A-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 ____ (Cust) ____
(minor) under Uniform Gifts to Minors Act___________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee.)
This Note and all rights thereunder hereby irrevocably constituting and
appointing Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated: ____________________________ ____________________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
A-10
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
|_| (a) Such Note is being transferred by the undersigned
registered holder to a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as
amended, pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
|_| (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor," as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee shall hold such Note for its own account,
or as a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is
a bank acting in its fiduciary capacity), for investment
purposes and not for distribution, subject to any requirement
of law that the disposition of such transferee's property
shall at all times be and remain within its control.
or
|_| (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a
person that is not a "U.S. person" (or acquiring such Note for
the account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933,
as amended, provided by Regulation S thereunder.
A-11
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an Initial
Purchaser), the Trustee shall not be obligated to register such Note in the name
of any Person other than the registered holder thereof and until the conditions
to any such registration of transfer set forth in this Note and in the Indenture
shall have been satisfied.
Dated:______________
-----------------------------------------------
[Type or print name of registered holder]
By:____________________________________________
The signature of the registered
holder must correspond with the name
as written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may
A-12
not be transferred except in accordance with the resale and other transfer
restrictions set forth in the legend on the face thereof.
Dated:______________
-------------------------------------------------
[Type or print name of transferee]
By:______________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges and agrees
that this Note has not been registered under the Securities Act of 1933, as
amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:______________
-----------------------------------------------------
[Type or print name of transferee]
By:__________________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________
-----------------------------------------------------
[Type or print name of transferee]
By:__________________________________________________
Executive Officer
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Exhibit B to Supplemental Indenture
FORM OF INITIAL REGULATION S GLOBAL NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $1,000 ($100,000 FOR INSTITUTIONAL ACCREDITED
INVESTORS) AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY
AFFILIATE OF THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE), ONLY (a) TO THE OPERATING PARTNERSHIP OR ONE OF THE
INITIAL PURCHASERS OR BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL
PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE
SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED
INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN
INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
B-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
B-2
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: [ ] $125,000,000
REGULATION S GLOBAL NOTE
FIRST INDUSTRIAL, L.P.
6.42% SENIOR NOTE DUE 2014
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Operating
Partnership," which term shall include any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS on June 1, 2014 and to pay interest on the
outstanding principal amount thereon from May 17, 2004, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year, commencing
December 1, 2004, at the rate of 6.42% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. All payments of
principal, Make-Whole Amount, if any, and interest in respect of this Note will
be made by the Operating Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
B-3
IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this instrument to be duly
executed under its corporate seal.
Dated: May [ ], 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., as
its general partner
By:
---------------------------------------
Name:
Title:
[Seal]
Attest:
- ----------------------------
Assistant Secretary
B-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------
Authorized Signatory
B-5
REVERSE OF SECURITY
Notes of this series are one of a duly authorized issue of debt securities of
the Operating Partnership (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of May 13, 1997, as
supplemented by Supplemental Indenture No. 8, dated as of May 17, 2004 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank National Association (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Security is one
of the series designated in the first page thereof, limited in aggregate
principal amount to $125,000,000.
Notes of this series may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Notes, not less than 30
nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Operating Partnership on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Operating Partnership, in each case, upon compliance by the Operating
Partnership with certain conditions set forth in the Indenture, which provisions
apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
If this Note is exchanged in an Exchange Offer prior to the Regular Record Date
for the first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date of issuance of
the Note(s) issued in exchange (the "Exchange Note") for this Note, shall be
paid on the first Interest Payment Date for such Exchange Note(s) to the Holder
or Holders of such Exchange Note(s) on the first Regular Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Regular Record Date for the first Interest Payment Date
following such exchange but on or prior to the Interest Payment Date, then any
such accrued and unpaid interest with respect to this Note and any accrued and
unpaid interest on the Exchange Note(s) issued in exchange for this Note,
through the day before such Interest Payment Date, shall be paid on such
Interest Payment Date to the Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the Registration Rights
Agreement to be executed on or about May 24, 2004 (the "Registration Rights
Agreement") among the Issuer and UBS Securities LLC and its assigns, if any
(collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
B-6
If (i) a registration statement with respect to the Exchange Notes (the
"Exchange Offer Registration Statement") is not filed with the Commission on or
prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions shall in no event exceed 0.50%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note shall not be
entitled to any such increase in the interest rate for any day after the 180th
day following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, shall be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the Operating
Partnership fails to keep such Shelf Registration Statement continuously (x)
effective or (y) useable for resales for the period required by the Registration
Rights Agreement due to certain circumstances relating to pending corporate
developments, public filings with the Commission and similar events, or because
the prospectus contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and such failure continues for more than 60
days (whether or not consecutive) in any 12-month period (the 61st day being
referred to as the "Default Day"), then from the Default Day until the earlier
of (i) the date that is the second anniversary of the Closing Date (or, if Rule
144(k) of the Securities Act is amended to provide a shorter restrictive period,
the end of such shorter period) or (ii) the date as of which this Note is sold
pursuant to the Shelf Registration Statement, the Special Interest Premium shall
accrue at a rate equal to 0.50% per annum.
As provided in and subject to the provisions of the Indenture, the Holder of
this Note shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Notes of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of the principal of,
and Make-Whole Amount, if any, and interest on the Notes on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the Notes of each series
to be affected under the Indenture at any time by the Operating Partnership and
the
B-7
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Notes of each series of Notes then Outstanding
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Operating Partnership with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Amount, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Operating Partnership in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Notes are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Operating Partnership and the Security Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Operating Partnership, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of, Make-Whole Amount,
if any, or interest in respect of this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Operating Partnership or the General Partner or of any successor, either
directly or through the Operating Partnership or the General Partner or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-8
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Operating Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Notes, and reliance may be placed only
on the other identification numbers printed hereon.
B-9
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 ____ (Cust) ____
(minor) under Uniform Gifts to Minors Act___________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee.)
This Note and all rights thereunder hereby irrevocably constituting and
appointing Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated: ____________________________ ____________________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
B-10
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
|_| (a) Such Note is being transferred by the undersigned
registered holder to a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as
amended, pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
|_| (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor," as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee shall hold such Note for its own account,
or as a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is
a bank acting in its fiduciary capacity), for investment
purposes and not for distribution, subject to any requirement
of law that the disposition of such transferee's property
shall at all times be and remain within its control.
or
|_| (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a
person that is not a "U.S. person" (or acquiring such Note for
the account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933,
as amended, provided by Regulation S thereunder.
B-11
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an Initial
Purchaser), the Trustee shall not be obligated to register such Note in the name
of any Person other than the registered holder thereof and until the conditions
to any such registration of transfer set forth in this Note and in the Indenture
shall have been satisfied.
Dated:______________
---------------------------------------------------
[Type or print name of registered holder]
By:________________________________________________
The signature of the registered
holder must correspond with the name
as written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:______________
------------------------------------------------------
[Type or print name of transferee]
By:___________________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges and agrees
that this Note has not been registered under the Securities Act of 1933, as
amended, and may
B-12
not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:______________
-----------------------------------------------------
[Type or print name of transferee]
By:__________________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________
----------------------------------------------------
[Type or print name of transferee]
By:_________________________________________________
Executive Officer
B-13
Exhibit C to Supplemental Indenture
FORM OF INITIAL CERTIFICATED NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION, NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION, THIS NOTE WILL BE ISSUED AND MAY BE TRANSFERRED ONLY
IN MINIMUM DENOMINATIONS OF $100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS
THEREOF.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE
OF THIS NOTE AND THE LAST DATE ON WHICH THE OPERATING PARTNERSHIP OR ANY
AFFILIATE OF THE OPERATING PARTNERSHIP WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF SUCH NOTE), ONLY (a) TO THE OPERATING PARTNERSHIP OR ONE OF THE
INITIAL PURCHASERS OR BY, THROUGH OR IN A TRANSACTION APPROVED BY, AN INITIAL
PURCHASER, (b) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (c) FOR SO LONG AS THE NOTES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (d) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE
SECURITIES ACT) ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT OR AS A FIDUCIARY
OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED
INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
(e) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES TO AN
INSTITUTION THAT IS NOT A U.S. PERSON (AND WAS NOT PURCHASING FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON) WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, OR (f) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS NOTE BEING COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF
APPLICABLE, THE TRANSFEREE TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL NOTES OF THE
SERIES.
C-1
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: [ ] $125,000,000
NOTE
FIRST INDUSTRIAL, L.P.
6.42% SENIOR NOTE DUE 2014
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Operating
Partnership," which term shall include any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS on June 1, 2014 and to pay interest on the
outstanding principal amount thereon from May 17, 2004, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year, commencing
December 1, 2004, at the rate of 6.42% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. All payments of
principal, Make-Whole Amount, if any, and interest in respect of this Note will
be made by the Operating Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
C-2
IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this instrument to be duly
executed under its corporate seal.
Dated: May [ ], 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its general partner
By:
---------------------------------------
Name:
Title:
[Seal]
Attest:
- ------------------------------
Assistant Secretary
C-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
C-4
REVERSE OF SECURITY
Notes of this series are one of a duly authorized issue of debt securities of
the Operating Partnership (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of May 13, 1997, as
supplemented by Supplemental Indenture No. 8, dated as of May 17, 2004 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank National Association (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Security is one
of the series designated in the first page thereof, limited in aggregate
principal amount to $125,000,000.
Notes of this series may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Notes, not less than 30
nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Operating Partnership on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Operating Partnership, in each case, upon compliance by the Operating
Partnership with certain conditions set forth in the Indenture, which provisions
apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
If this Note is exchanged in an Exchange Offer prior to the Regular Record Date
for the first Interest Payment Date following such exchange, accrued and unpaid
interest, if any, on this Note, up to but not including the date of issuance of
the Note(s) issued in exchange (the "Exchange Note") for this Note, shall be
paid on the first Interest Payment Date for such Exchange Note(s) to the Holder
or Holders of such Exchange Note(s) on the first Regular Record Date with
respect to such Exchange Note(s). If this Note is exchanged in an Exchange Offer
subsequent to the Regular Record Date for the first Interest Payment Date
following such exchange but on or prior to the Interest Payment Date, then any
such accrued and unpaid interest with respect to this Note and any accrued and
unpaid interest on the Exchange Note(s) issued in exchange for this Note,
through the day before such Interest Payment Date, shall be paid on such
Interest Payment Date to the Holder of this Note on the Record Date.
The Holder of this Note is entitled to the benefits of the Registration Rights
Agreement to be executed on or about dated May 24, 2004 (the "Registration
Rights Agreement") among the Issuer and UBS Securities LLC and its assigns, if
any (collectively, the "Initial Purchasers").
If the Operating Partnership fails to comply with certain provisions of the
Registration Rights Agreement, in each case as described below, then a special
interest premium (the "Special Interest Premium") shall become payable in
respect of the Notes as follows:
C-5
If (i) a registration statement with respect to the Exchange Notes (the
"Exchange Offer Registration Statement") is not filed with the Commission on or
prior to the 90th day following the Closing Date, (ii) the Exchange Offer
Registration Statement is not declared effective on or prior to the 135th day
following the Closing Date or (iii) the Exchange Offer is not consummated or the
shelf registration statement covering resales of the Notes (the "Shelf
Registration Statement") is not declared effective on or prior to the 180th day
following the Closing Date, the Special Interest Premium shall accrue from and
including the next day following each of (a) such 90-day period in the case of
clause (i) above, (b) such 135-day period in the case of clause (ii) above and
(c) such 180-day period in the cause of clause (iii) above, in each case at a
rate equal to 0.50% per annum. The aggregate amount of the Special Interest
Premium payable pursuant to the above provisions shall in no event exceed 0.50%
per annum. If the Exchange Offer Registration Statement is not declared
effective on or prior to the 135th day following the Closing Date and the
Operating Partnership shall request the Holder of this Note to provide the
information called for by the Registration Rights Agreement for inclusion in the
Shelf Registration Statement and the Holder of this Note does not deliver such
information to the Operating Partnership when required pursuant to the
Registration Rights Agreement, then the Holder of this Note shall not be
entitled to any such increase in the interest rate for any day after the 180th
day following the Closing Date. Upon (1) the filing of the Exchange Offer
Registration statement after the 90-day period described in clause (i), (2) the
effectiveness of the Exchange Offer Registration Statement after the 135-day
period described in clause (ii) above or (3) the consummation of the Exchange
Offer or the effectiveness of a Shelf Registration Statement, as the case may
be, after the 180-day period described in clause (iii) above, the interest rate
on this Note from the date of such effectiveness or consummation, as the case
may be, shall be reduced to the original interest rate provided for herein.
If a Shelf Registration Statement is declared effective, and if the Operating
Partnership fails to keep such Shelf Registration Statement continuously (x)
effective or (y) useable for resales for the period required by the Registration
Rights Agreement due to certain circumstances relating to pending corporate
developments, public filings with the Commission and similar events, or because
the prospectus contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and such failure continues for more than 60
days (whether or not consecutive) in any 12-month period (the 61st day being
referred to as the "Default Day"), then from the Default Day until the earlier
of (i) the date that is the second anniversary of the Closing Date (or, if Rule
144(k) of the Securities Act is amended to provide a shorter restrictive period,
the end of such shorter period) or (ii) the date as of which this Note is sold
pursuant to the Shelf Registration Statement, the Special Interest Premium shall
accrue at a rate equal to 0.50% per annum.
As provided in and subject to the provisions of the Indenture, the Holder of
this Note shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Notes of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of the principal of,
and Make-Whole Amount, if any, and interest on the Notes on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the Notes of each series
to be affected under the Indenture at any time by the Operating Partnership and
the
C-6
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Notes of each series of Notes then Outstanding
affected thereby. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Operating Partnership with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Amount, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Operating Partnership in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Notes are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Operating Partnership and the Security Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Operating Partnership, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of, Make-Whole Amount,
if any, or interest in respect of this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Operating Partnership or the General Partner or of any successor, either
directly or through the Operating Partnership or the General Partner or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
C-7
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Operating Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Notes, and reliance may be placed only
on the other identification numbers printed hereon.
C-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 ____ (Cust) ____
(minor) under Uniform Gifts to Minors Act___________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee.)
This Note and all rights thereunder hereby irrevocably constituting and
appointing Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated: ____________________________ ____________________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
C-9
ASSIGNMENT & TRANSFER CERTIFICATE
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE TRUSTEE IF THE UNDERSIGNED
REGISTERED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER NOTE:
In connection with the resale or other transfer of this Note occurring
prior to the time the legend originally set forth on the face of this Note (or
one or more predecessor Notes) restricting resales and other transfers thereof
has been removed in accordance with the procedures set forth in the Indenture
(other than a resale or other transfer made to the Operating Partnership or to,
by, through, or in a transaction approved by an Initial Purchaser), the
undersigned registered holder certifies that without utilizing any general
solicitation or general advertising:
[CHECK ONE]
|_| (a) Such Note is being transferred by the undersigned
registered holder to a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as
amended, pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144A
thereunder.
or
|_| (b) Such Note is being transferred by the undersigned registered
holder to an institutional investor which is an "accredited
investor," as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended, and that the
undersigned has been advised by the prospective transferee
that such transferee shall hold such Note for its own account,
or as a fiduciary or agent for others (which others are also
institutional accredited investors, unless such transferee is
a bank acting in its fiduciary capacity), for investment
purposes and not for distribution, subject to any requirement
of law that the disposition of such transferee's property
shall at all times be and remain within its control.
or
|_| (c) Such Note is being transferred by the undersigned
registered holder to an institutional investor which is a
person that is not a "U.S. person" (or acquiring such Note for
the account or benefit of a U.S. person) in an "offshore
transaction," as such terms are defined in Regulation S under
the Securities Act of 1933, as amended, pursuant to the
exemption from registration under the Securities Act of 1933,
as amended, provided by Regulation S thereunder.
C-10
If none of the foregoing boxes are checked, then, so long as this Note
shall bear a legend on the face thereof restricting resales and other transfers
thereof (except in the case of a resale or other transfer made to the Operating
Partnership or to, by, through, or in a transaction approved by, an Initial
Purchaser), the Trustee shall not be obligated to register such Note in the name
of any Person other than the registered holder thereof and until the conditions
to any such registration of transfer set forth in this Note and in the Indenture
shall have been satisfied.
Dated:______________
-------------------------------------------------
[Type or print name of registered holder]
By:______________________________________________
The signature of the registered
holder must correspond with the name
as written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
TO BE COMPLETED BY TRANSFEREE
IF (a) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that (i) it is a
"qualified institutional buyer," as defined in Rule 144A under the Securities
Act of 1933, as amended, and acknowledges that the undersigned either has
received such information regarding the Operating Partnership as the undersigned
transferee has requested pursuant to Rule 144A or has determined not to request
such information, (ii) this instrument has been executed on behalf of the
undersigned transferee by one of its executive officers and (iii) it is aware
that the registered holder of this Note is relying upon the undersigned
transferee's foregoing representations in order to claim the exemption from
registration provided by Rule 144A. The undersigned transferee acknowledges and
agrees that this Note has not been registered under the Securities Act of 1933,
as amended, and may not be transferred except in accordance with the resale and
other transfer restrictions set forth in the legend on the face thereof.
Dated:______________
---------------------------------------------------
[Type or print name of transferee]
By:________________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (b) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and an "accredited investor," as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended, and
that this instrument has been executed on behalf of the undersigned transferee
by one of its executive officers. The undersigned transferee undertakes to hold
this Note acquired from the registered holder thereof for its own account, or as
a fiduciary or agent for others (which others are also institutional accredited
investors, unless such transferee is a bank acting in its fiduciary capacity),
for investment purposes and not for distribution, subject to any requirement of
law that the disposition of the undersigned transferee's property shall at all
times be and remain within its control. The undersigned acknowledges
C-11
and agrees that this Note has not been registered under the Securities Act of
1933, as amended, and may not be transferred except in accordance with the
resale and other transfer restrictions set forth in the legend on the face
thereof.
Dated:______________
----------------------------------------------------
[Type or print name of transferee]
By:_________________________________________________
Executive Officer
TO BE COMPLETED BY TRANSFEREE
IF (c) ABOVE IS CHECKED:
The undersigned transferee represents and warrants that it is an
institutional investor and that it is not a U.S. person (as defined in
Regulation S under the Securities Act of 1933, as amended) and it is acquiring
this Note from the registered holder thereof in an "offshore transaction" (as
defined in Regulation S) pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Regulation S thereunder. The
undersigned transferee acknowledges and agrees that this Note has not been
registered under the Securities Act of 1933, as amended, and may not be
transferred except in accordance with the resale and other transfer restrictions
set forth in the legend on the face thereof.
Dated:______________
-----------------------------------------------------
[Type or print name of transferee]
By:__________________________________________________
Executive Officer
C-12
Exhibit D to Supplemental Indenture
FORM OF EXCHANGE GLOBAL NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: [ ] $125,000,000
NOTE
FIRST INDUSTRIAL, L.P.
6.42% SENIOR NOTE DUE 2014
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Operating
Partnership," which term shall include any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS on June 1, 2014 and to pay interest on the
outstanding principal amount thereon from May 17, 2004, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year, commencing
December 1, 2004, at the rate of 6.42% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be
D-1
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture. All payments of principal, Make-Whole Amount,
if any, and interest in respect of this Note will be made by the Operating
Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
D-2
IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this instrument to be duly
executed under its corporate seal.
Dated: May [ ], 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its general partner
By:
---------------------------------------
Name:
Title:
[Seal]
Attest:
- --------------------------------
Assistant Secretary
D-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
---------------------------------------
Authorized Signatory
D-4
REVERSE OF SECURITY
Notes of this series are one of a duly authorized issue of debt securities of
the Operating Partnership (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of May 13, 1997, as
supplemented by Supplemental Indenture No. 8, dated as of May 17, 2004 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank National Association (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Security is one
of the series designated in the first page thereof, limited in aggregate
principal amount to $125,000,000.
Notes of this series may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Notes, not less than 30
nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Operating Partnership on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Operating Partnership, in each case, upon compliance by the Operating
Partnership with certain conditions set forth in the Indenture, which provisions
apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder of
this Note shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Notes of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of the principal of,
and Make-Whole Amount, if any, and interest on the Notes on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the Notes of each series
to be affected under the Indenture at any time by the Operating Partnership and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding
D-5
Notes of each series of Notes then Outstanding affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes of each series at the time Outstanding, on behalf
of the Holders of all Securities of such series, to waive compliance by the
Operating Partnership with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Amount, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Operating Partnership in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Notes are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Operating Partnership and the Security Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Operating Partnership, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of, Make-Whole Amount,
if any, or interest in respect of this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Operating Partnership or the General Partner or of any successor, either
directly or through the Operating Partnership or the General Partner or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
D-6
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Operating Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Notes, and reliance may be placed only
on the other identification numbers printed hereon.
D-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 ____ (Cust) ____
(minor) under Uniform Gifts to Minors Act___________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee.)
This Note and all rights thereunder hereby irrevocably constituting and
appointing Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated: ____________________________ ____________________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
D-8
Exhibit E to Supplemental Indenture
FORM OF EXCHANGE CERTIFICATED NOTE
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: [ ] $125,000,000
NOTE
FIRST INDUSTRIAL, L.P.
6.42% SENIOR NOTE DUE 2014
FIRST INDUSTRIAL, L.P., a limited partnership duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Operating
Partnership," which term shall include any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of ONE HUNDRED
TWENTY FIVE MILLION DOLLARS on June 1, 2014 and to pay interest on the
outstanding principal amount thereon from May 17, 2004, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on June 1 and December 1 in each year, commencing
December 1, 2004, at the rate of 6.42% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the May 1 or November 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. All payments of
principal, Make-Whole Amount, if any, and interest in respect of this Note will
be made by the Operating Partnership in immediately available funds.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Note shall not be
entitled to any benefit under the Indenture, or be valid or obligatory for any
purpose.
E-1
IN WITNESS WHEREOF, FIRST INDUSTRIAL, L.P. has caused this instrument to be duly
executed under its corporate seal.
Dated: May [ ], 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.,
as its general partner
By:
---------------------------------------
Name:
Title:
[Seal]
Attest:
- --------------------------
Assistant Secretary
E-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
-----------------------------------------
Authorized Signatory
E-3
REVERSE OF SECURITY
Notes of this series are one of a duly authorized issue of debt securities of
the Operating Partnership (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of May 13, 1997, as
supplemented by Supplemental Indenture No. 8, dated as of May 17, 2004 (as so
supplemented, herein called the "Indenture"), between the Operating Partnership
and U.S. Bank National Association (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Operating Partnership, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Security is one
of the series designated in the first page thereof, limited in aggregate
principal amount to $125,000,000.
Notes of this series may be redeemed at any time at the option of the Operating
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
Notice of redemption will be given by mail to Holders of Notes, not less than 30
nor more than 60 days prior to the Redemption Date, all as provided in the
Indenture.
In the event of redemption of this Security in part only, a new Note or Notes
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Operating Partnership on this Note and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Operating Partnership, in each case, upon compliance by the Operating
Partnership with certain conditions set forth in the Indenture, which provisions
apply to this Note.
If an Event of Default with respect to the Notes shall occur and be continuing,
the principal amount of the Notes may be declared due and payable in the manner
and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder of
this Note shall not have the right to institute any proceeding with respect to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the Notes, the
Holders of not less than 25% in principal amount of the Notes of this series at
the time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Note for the enforcement of any payment of the principal of,
and Make-Whole Amount, if any, and interest on the Notes on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Operating Partnership and the rights of the Holders of the Notes of each series
to be affected under the Indenture at any time by the Operating Partnership and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding
E-4
Notes of each series of Notes then Outstanding affected thereby. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes of each series at the time Outstanding, on behalf
of the Holders of all Securities of such series, to waive compliance by the
Operating Partnership with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Operating Partnership,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Amount, if any) and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Operating Partnership in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Notes are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Operating Partnership and the Security Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of this series, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Operating Partnership may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Operating Partnership, the Trustee and any agent of the Operating Partnership or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Operating Partnership, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal of, Make-Whole Amount,
if any, or interest in respect of this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any past, present or future stockholder,
employee, officer, director, incorporator, limited or general partner, as such,
of the Operating Partnership or the General Partner or of any successor, either
directly or through the Operating Partnership or the General Partner or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
All capitalized terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
E-5
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Operating Partnership has caused "CUSIP" numbers
to be printed on the Securities of this series as a convenience to the Holders
of such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Notes, and reliance may be placed only
on the other identification numbers printed hereon.
E-6
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, 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 ____ (Cust) ____
(minor) under Uniform Gifts to Minors Act___________(State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee.)
This Note and all rights thereunder hereby irrevocably constituting and
appointing Attorney to transfer this Note on the books of the Trustee, with full
power of substitution in the premises.
Dated: ____________________________ ____________________________________________
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Note in every
particular, without
alteration or enlargement
or any change whatsoever.
E-7
TABLE OF CONTENTS
Page
ARTICLE I RELATION TO INDENTURE: DEFINITIONS.......................1
Section 1.1. Relation to Indenture...............................1
Section 1.2. Definitions.........................................1
ARTICLE II THE SERIES OF NOTES......................................6
Section 2.1. Title of the Notes..................................6
Section 2.2. Limitation on Aggregate Principal Amount............6
Section 2.3. Interest and Interest Rates; Maturity Date of
Notes...............................................7
Section 2.4. Limitations on Incurrence of Indebtedness...........7
Section 2.5. Optional Redemption.................................9
Section 2.6. Places of Payment...................................9
Section 2.7. Method of Payment...................................9
Section 2.8. Currency............................................9
Section 2.9. Form of Notes.......................................9
Section 2.10. Registrar and Paying Agent.........................10
Section 2.11. Defeasance.........................................10
Section 2.12. Provision of Financial Information.................10
Section 2.13. Waiver of Certain Covenants........................11
Section 2.14. Other Terms and Conditions.........................11
Section 2.15. Further Issues.....................................11
ARTICLE III REGISTRATION RIGHTS.....................................12
Section 3.1. Registration Rights Agreement......................12
Section 3.2. Special Interest Premium...........................13
Section 3.3. Legend.............................................14
ARTICLE IV TRANSFER AND EXCHANGE...................................14
Section 4.1. Transfer and Exchange..............................14
ARTICLE V LEGENDS.................................................15
Section 5.1. Legends............................................15
ARTICLE VI MISCELLANEOUS PROVISIONS................................17
Section 6.1. Ratification of Indenture..........................17
Section 6.2. Governing Law......................................17
Section 6.3. Counterparts.......................................17
-i-