Execution Version
FIRST INDUSTRIAL, L.P.
Issuer
to
U.S. BANK NATIONAL ASSOCIATION
Trustee
Supplemental Indenture No. 9
Dated as of June 14, 2004
$125,000,000
of
5.25% Senior Notes due 2009
SUPPLEMENTAL INDENTURE NO. 9, dated as of June 14, 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 "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, 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, 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
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date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
"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.
"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 noncash 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.
"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.
"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).
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"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"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.
"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, 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 recitals hereof.
"Interest Payment Date" has the meaning specified in Section 2.3 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
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principal being redeemed 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 or accelerated.
"Notes" has the meaning specified in Section 2.1 hereof.
"Operating Partnership" has the meaning specified in the introductory
paragraph hereof.
"Redemption Price" has the meaning specified in Section 2.5 hereof.
"Regular Record Date" has the meaning specified in Section 2.3 hereof.
"Required Filing Dates" has the meaning specified in Section 2.13 hereof.
"Reinvestment Rate" means 0.20% (twenty one hundredths of one percent) 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.
"Securities" has the meaning specified in the recitals hereof.
"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.
"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 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.
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"Trustee" has the meaning set forth 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. There shall be a series of Securities
designated the "5.25% Senior Notes due 2009" (the "Notes").
Section 2.2. Limitation on Aggregate Principal Amount. The Notes initially
will be limited to an aggregate principal amount of $125,000,000.
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 5.25% per annum and will mature on June 15, 2009. The
Notes will bear interest from June 14, 2004 or from the immediately preceding
Interest Payment Date to which interest has been paid, payable semi-annually in
arrears on June 15 and December 15 of each year, commencing December 15, 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 31 or November 30 (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 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
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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 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
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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; 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 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
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the Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto located within the United States.
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. Registered Securities; Global. The Notes shall be issuable and
transferable in fully registered form as Registered Securities, without coupons.
The Notes shall be issued in the form of one Global Security. The depository for
the Notes shall be The Depository Trust Company ("DTC"). The Notes shall not be
issuable in definitive form except as provided in Section 305 of the Indenture.
Section 2.10. Form of Notes. The Notes shall be substantially in the form
attached as Exhibit A hereto.
Section 2.11. Registrar and Paying Agent. The Trustee shall initially serve
as Registrar and Paying Agent for the Notes.
Section 2.12. 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 2.13 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Indenture.
Section 2.13. 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 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 either such Section, 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 either
such Section 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 2.14. 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 2.13
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
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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 2.15. Other Terms and Conditions. The Notes shall have such other
terms and conditions as provided in the form thereof attached as Exhibit A
hereto.
Section 2.16. 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 that
such further securities will have a different issue date and may have a
different issue price and date of 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 2.17. Authorized Signatories. For purposes of this 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."
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1. 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 3.2. 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 3.3. 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.
9
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/ Michael J. Havala
-------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Cynthia S. Woodward
-------------------------------------
Name: Cynthia S. Woodward
Title: Vice President
10
Exhibit A to Supplemental Indenture
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York, to the
Operating Partnership (as defined below) 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, 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. This Security is a Global Security within the meaning set forth in
the Indenture hereinafter referred to and is registered in the name of DTC or a
nominee of DTC. This Security is exchangeable for Securities registered in the
name of a person other than DTC or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a whole by DTC
to a nominee of DTC or another nominee of DTC or by DTC or its nominee to a
successor Depository or its nominee.
Registered No. 1 PRINCIPAL AMOUNT
CUSIP No.: 32055RAL1 $125,000,000
GLOBAL SECURITY
FIRST INDUSTRIAL, L.P.
5.25% SENIOR NOTE DUE 2009
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 125,000,000
DOLLARS on June 15, 2009 and to pay interest on the outstanding principal amount
thereon from June 14, 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 15 and December 15 in each year, commencing December 15, 2004,
at the rate of 5.25% 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 Security is registered at the close of
business on the Regular Record Date for such interest which shall be the May 31
or November 30 (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
Security 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 Securities 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
Securities 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 Global
Security will be made by the Operating Partnership in immediately available
funds.
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Reference is hereby made to the further provisions of this Security 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 Security 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: June 14, 2004
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc., as
its general partner
----------------------------------------------
Name: Michael J. Havala
Title: Chief Financial Officer
[Seal]
Attest:
- --------------------------------------
Name: John Clayton
Title: Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities 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
Securities of this series are one of a duly authorized issue of securities of
the Operating Partnership (herein called the "Securities"), 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. 9, dated as of June 14, 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 Securities and of
the terms upon which the Securities 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.
Securities 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 Securities, 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 Security or
Securities 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 Security 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 Security.
If an Event of Default with respect to the Securities shall occur and be
continuing, the principal amount of the Securities 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 Security 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
Securities, the Holders of not less than 25% in principal amount of the
Securities 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
Securities 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 Security for the
enforcement of any payment of the principal of, and Make-Whole Amount, if any,
and interest on the Securities 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 Securities of each
series to be affected under the Indenture at any time by the Operating
Partnership and
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the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series of Securities then
Outstanding affected thereby. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities 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 Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this Security 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 Security 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 Security is registrable in the Security Register,
upon surrender of this Security 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 Security 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 Securities of this series, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities 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,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities 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 Security 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 Security is registered as
the owner hereof for all purposes, whether or not this Security 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 Security, 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 Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, 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 Securities, and reliance may be placed
only on the other identification numbers printed hereon.
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ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
[ ]
.................................................................................
(Please Print or Typewrite Name and Address including Zip Code of Assignee)
.................................................................................
the within Security of First Industrial, L.P. and hereby does irrevocably
constitute and appoint
........................................................................Attorney
to transfer said Security on the books of First Industrial, L.P. with full power
of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
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