FIRST AMENDMENT
TO EXCEPTED HOLDER AGREEMENT
THIS FIRST AMENDMENT TO EXCEPTED HOLDER AGREEMENT (this "AMENDMENT") is
made and entered into as of January 20, 1998 by and between MERIDIAN INDUSTRIAL
TRUST, INC., a Maryland corporation (the "COMPANY"), and THE PRUDENTIAL
INSURANCE COMPANY OF AMERICA, a New Jersey Corporation (the "INVESTOR").
R E C I T A L S
A. The Company and the Investor previously entered into that certain
MIT-Investor Excepted Holder Agreement, dated as of September 24, 1997 (the
"ORIGINAL AGREEMENT;" capitalized terms used herein and not otherwise defined
shall have the meaning given to such terms in the Original Agreement), pursuant
to which the Company granted Investor a special Excepted Holder Limit in
connection with Investor's acquisition of the Company's Common Stock.
B. The Company and Investor now seek to modify the definition of the
Excepted Holder Limit set forth in the Original Agreement so as to include
certain shares of the Company's Equity Common Stock owned from time to time by
certain subsidiaries of Investor within the definition of Investor's Excepted
Holder Limit.
NOW THEREFORE, in furtherance of the foregoing recitals and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Company and Investor hereby agree as follows.
A G R E E M E N T
1. MODIFICATION OF EXCEPTED HOLDER LIMIT FOR INVESTOR. The Company,
effective as of the date of this Amendment, has modified the Excepted Holder
Limit for Investor and its successors and permitted assigns by adopting a
resolution of its Board of Directors (the "SUBSEQUENT RESOLUTION") in the form
attached to hereto as ATTACHMENT A. The Excepted Holder Limit set forth on
ATTACHMENT A shall inure to the benefit of Investor and its successors and
permitted assigns from and after the date hereof. EXHIBIT A as attached to the
Original Agreement is hereby amended and restated in its entirety as set forth
on ATTACHMENT A hereto.
2. FULL FORCE AND EFFECT. Except as expressly modified pursuant to this
Amendment, all of the terms, covenants and provisions of the Original Agreement
shall continue in full force and effect.
3. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original but together shall
constitute one and the same instrument.
Each of the parties has caused this Amendment to be signed by its duly
authorized officers as of the date set first set forth above.
COMPANY: INVESTOR:
MERIDIAN INDUSTRIAL TRUST, INC., THE PRUDENTIAL INSURANCE
a Maryland Corporation COMPANY OF AMERICA,
a New Jersey corporation, individually
and on behalf of the separate accounts
listed on ATTACHMENT B
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary Title: Managing Director
ATTACHMENT A
AMENDED AND RESTATED
MIT -- PRUDENTIAL
EXCEPTED HOLDER LIMIT RESOLUTION
In accordance with Article 5 of the Company's Third Amended and Restated
Articles of Incorporation ("ARTICLES"), the Board has determined that, effective
upon the REIT Ownership Date (capitalized terms used in this resolution that are
not otherwise defined shall have the meanings given to those terms in the
Articles), and subject to adjustment as set forth below:
1. An Excepted Holder Limit of 30% of the number of outstanding
shares of the Company's Common Stock shall apply to The Prudential
Insurance Company of America, its successors and permitted assigns;
PROVIDED, HOWEVER, that in the event of a redemption, repurchase or
cancellation of shares of Common Stock or similar action on the part of the
Company that results in the number of shares of Common Stock then
Beneficially or Constructively Owned by Prudential representing a greater
percentage of the outstanding shares of Common Stock, such Ownership Limit
shall be increased proportionately; PROVIDED, FURTHER that such Excepted
Holder Limit shall be automatically increased from time to time by an
aggregate amount up to the greater of (A) 1,000,000 shares of the Company's
Common Stock or (B) 3% of the number of the Company's Common Stock then
outstanding, to include any shares held or acquired in good faith, with a
view to distribution thereof, by Prudential Securities Incorporated or any
other wholly-owned subsidiary of Prudential that is a registered "broker"
or "dealer" (as such terms are defined in the Securities Exchange Act of
1934, as amended), acting in the ordinary course of its business of
distributing securities, for so long as such entity holds such shares;
2. As to each Person that is deemed to Beneficially Own or
Constructively Own an interest in shares of the Company that are held by
Prudential, that Person's deemed indirect interest in the shares held by
Prudential shall be disregarded for purposes of applying the Ownership
Limit to that Person, provided, however, if such a Person also Beneficially
or Constructively Owns an interest in other shares of the Company, the
interest held through Prudential shall not be so disregarded; and
3. When Prudential sells or otherwise transfers ownership of shares
of the Company outside of Prudential, the Excepted Holder Limit then
applicable to Prudential shall be reduced by the interest that is sold or
transferred, but the limit applicable to Prudential shall not be reduced
below the basic Ownership Limit.
ATTACHMENT B
1. Western Conference of Teamsters Pension Trust Fund.
2. The Prudential Variable Contract Real Property Partnership, the partners of
which are the Prudential Insurance Company of America ("Prudential"), on
behalf of the Prudential Variable Contract Real Property Account, Pruco
Life Insurance Company (a separate account of Prudential), on behalf of
Pruco Life Variable Contract Real Property Account, and Pruco Life
Insurance Company of New Jersey (a separate account of Prudential), on
behalf of the Pruco Life of New Jersey Variable Contract Real Property
Account.
3. Strategic Performance Fund-II, Inc.
4. The Chevron Separate Account.
5. Strategic Performance Fund I Separate Account.
