FIRST INDUSTRIAL, L.P. Registration Rights Agreement
Exhibit
10.1
4.625%
Exchangeable Senior Notes Due 2011
September
25, 2006
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
CREDIT
SUISSE SECURITIES (USA) LLC
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
As
Representatives of the several Initial
Purchasers
listed
in
Schedule I
to the
Purchase Agreement
c/o
▇.▇.
▇▇▇▇▇▇ Securities Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and
Gentlemen:
First
Industrial, L.P., a Delaware limited partnership (the “Operating Partnership”),
proposes to issue and sell to certain purchasers (the “Initial Purchasers”), for
whom you (the “Representatives”) are acting as representatives, its 4.625%
Exchangeable Senior Notes due 2011 (the “Notes”), upon the terms set forth in
the Purchase Agreement by and among the Operating Partnership, First Industrial
Realty Trust, Inc., a Maryland corporation and the sole general partner of
the
Operating Partnership (the “Company”), and the Representatives, dated September
19, 2006 (the “Purchase Agreement”), relating to the initial placement (the
“Initial Placement”) of the Notes. In certain circumstances, the Notes will be
exchangeable into shares of common stock, $0.01 par value (the “Common Stock”),
of the Company. The Notes will be fully and unconditionally guaranteed as
to the
payment of principal and interest by the Company. To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy obligations
thereunder, the holders of the Notes will have the benefit of this registration
rights agreement by and among the Operating Partnership, the Company and
the
Initial Purchasers whereby the Company agrees with you for your benefit and
the
benefit of the holders from time to time of the Notes (including the Initial
Purchasers) (each a “Holder” and, collectively, the “Holders”), as
follows:
1. Definitions.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement,
the
following capitalized defined terms shall have the following
meanings:
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Additional
Interest” shall have the meaning set forth in Section 7 hereof.
“Affiliate”
shall have the meaning specified in Rule 405 under the Act.
“Automatic
Shelf Registration Statement” shall mean a Registration Statement filed by a
Well-Known Seasoned Issuer which shall become effective upon filing thereof
pursuant to General Instruction I.D for Form S-3.
“Broker-Dealer”
shall mean any broker or dealer registered as such under the Exchange
Act.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or
a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
“Closing
Date” shall mean the date of the first issuance of the Notes.
“Commission”
shall mean the Securities and Exchange Commission.
“Control”
shall have the meaning specified in Rule 405 under the Act and the terms
“controlling” and “controlled” shall have meanings correlative
thereto.
“Deferral
Period” shall have the meaning indicated in Section 3(i) hereof.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Exchange
Price” shall have the meaning specified in the Indenture.
“Final
Memorandum” shall
mean
the
offering memorandum, dated September
19, 2006, relating to the Notes, including any and all annexes thereto and
any
information incorporated by reference therein as of such date.
“Holder”
shall
have
the
meaning set forth in the preamble hereto.
“Indenture”
shall
mean
the
Indenture relating to the Notes,
dated as
of September
25, 2006,
by and
among the
Operating
Partnership, the Company,
as
guarantor,
and
U.S.
Bank National Association, as trustee, as
the
same may be amended from time to time in accordance with the terms
thereof.
“Initial
Placement” shall
have
the
meaning set forth in the preamble hereto.
“Initial
Purchasers” shall have the meaning set forth in the preamble
hereto.
“Losses”
shall have the meaning set forth in Section 5(d) hereof.
“Majority
Holders” shall
mean,
on any
date,
Holders
of a majority of the Common Stock registered under the
Shelf
Registration Statement.
“Managing
Underwriters” shall
mean
the
investment banker or investment bankers and manager or managers that administer
an underwritten offering,
if any,
conducted pursuant to Section 6 hereof.
2
“NASD
Rules” shall mean the Conduct Rules and the By-Laws of the National Association
of Securities Dealers, Inc.
“Notes”
shall have the meaning set forth in the preamble.
“Notice
and Questionnaire” shall mean a written notice delivered to the Company
substantially in the form attached as Annex A to the Final
Memorandum.
“Notice
Holder” shall mean, on any date, any Holder of Registrable Securities that has
delivered a Notice and Questionnaire to the Company on or prior to such
date.
“Prospectus”
shall
mean
a
prospectus included in the Shelf Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A or
Rule
430B under
the
Act), as amended or supplemented by any prospectus supplement, with respect
to
the terms of the offering of any portion of the Common Stock covered by the
Shelf Registration Statement, and all amendments and supplements
thereto,
including any and all exhibits thereto and any information incorporated by
reference therein.
“Purchase
Agreement” shall have the meaning set forth in the preamble hereto.
“Registrable
Securities” shall mean shares of Common Stock initially issuable in exchange for
the Notes initially sold to the Initial Purchasers pursuant to the Purchase
Agreement other than shares of Common Stock that have (i) been registered
under
the Shelf Registration Statement and disposed of in accordance therewith,
(ii)
have become eligible to be sold without restriction as contemplated by Rule
144(k) under the Act or any successor rule or regulation thereto that
may
be adopted by the Commission
and (iii)
ceased to be outstanding.
“Shelf
Registration Period” shall
have
the
meaning set forth in Section 2(c) hereof.
“Shelf
Registration Statement” shall
mean
a
“shelf” registration statement of the Company pursuant to the provisions of
Section 2 hereof which covers some or all of the Common Stock on an
appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
“Underwriter”
shall
mean
any
underwriter of Common Stock in connection with an offering thereof under
the
Shelf Registration Statement.
“Well-Known
Seasoned Issuer” shall
have
the
meaning set forth in Rule 405 under the Act.
2. Shelf
Registration.
(a) The
Company shall, not
later
than April 30, 2007, file with the Commission a Shelf Registration Statement
(which shall be, if the Company is then a WKSI, an Automatic Shelf Registration
Statement) providing for the registration of, and the sale on a continuous
or
delayed basis by the Holders of, all of the Registrable Securities, from
3
time
to
time in accordance with the methods of distribution elected by such
Holders,
pursuant
to Rule 415 under the Act or any similar rule that may be adopted by the
Commission.
(b) If
the
Shelf Registration Statement is not an Automatic Shelf Registration Statement,
the Company shall use its reasonable best efforts to cause the Shelf
Registration Statement to become or be declared effective under the Act no
later
than 270 days after the Closing Date.
(c) The
Company shall use its reasonable
best efforts
to keep
the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in
order
to permit the Prospectus forming part thereof to be usable by Holders for
a
period (the
“Shelf
Registration Period”) from
the
date the Shelf Registration Statement is declared effective by the Commission
(or
becomes effective in the case of an Automatic Shelf Registration Statement)
until the earlier of (i) the 20th
Trading
Day (as defined in the Indenture) immediately following the maturity date
of the
Notes or
(ii)
the
date upon which there
are
no Notes
or
Registrable Securities outstanding.
The
Company shall be deemed not to have used its reasonable best efforts to keep
the
Shelf Registration Statement effective during the Shelf Registration Period
if
it voluntarily takes any action that would result in Holders of Registrable
Securities
not being able to offer and sell such Common Stock at
any
time during
the
Shelf
Registration Period, unless such action is (x)
required
by applicable law
or
otherwise undertaken by the Company in good faith and for valid business
reasons
(not including avoidance of the Company’s obligations hereunder), including the
acquisition or divestiture of assets, or (y) permitted by Section 3(i)
hereof.
(d) The
Company shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the
Shelf
Registration Statement or such amendment or supplement, (i) to comply in
all
material respects with the applicable requirements of the Act; and (ii) not
to
contain any untrue statement of a material fact or omit to state a material
fact
required to be stated therein or necessary in order to make the statements
therein (in
the
case of the Prospectus, in the
light
of
the circumstances under which they were made)
not
misleading.
(e) Subject
to
applicable law, the Company shall issue a press release through a reputable
national newswire service announcing the anticipated effective date of the
Shelf
Registration Statement at least 15 Business Days prior to the anticipated
effective date thereof. Each Holder of Registrable Securities agrees to deliver
a Notice and Questionnaire and such other information as the Company may
reasonably request in writing, if any, to the Company at least 10 Business
Days
prior to the anticipated effective date of the Shelf Registration Statement
as
announced in the press release. From and after the effective date of the
Shelf
Registration Statement, the Company shall use reasonable best efforts, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within 10 Business Days after such date, (i)
if
required by applicable law, to file with the Commission a post-effective
amendment to the Shelf Registration Statement (provided
that the
Company shall not be required to file more than one post-effective amendment
in
any 90-day period in accordance with this Section 2(e)(i)) or to prepare
and, if
permitted or required by applicable law, to file a supplement to the related
Prospectus or an amendment or supplement to any document incorporated therein
by
reference or file any other required document so that the Holder delivering
such
Notice and
4
Questionnaire
is named as a selling securityholder in the Shelf Registration Statement
and the
related Prospectus, and so that such Holder is permitted to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment
to the
Shelf Registration Statement, use reasonable best efforts to cause such
post-effective amendment to be declared effective under the Act as promptly
as
is practicable; (ii) provide such Holder, upon request, copies of any documents
filed pursuant to Section 2(e)(i) hereof; and (iii) notify such Holder as
promptly as practicable after the effectiveness under the Act of any
post-effective amendment filed pursuant to Section 2(e)(i) hereof; provided
that if
such Notice and Questionnaire is delivered during a Deferral Period, the
Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(i) hereof. Notwithstanding
anything contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in the Shelf Registration Statement or related Prospectus;
provided,
however,
that any
Holder that becomes a Notice Holder pursuant to the provisions of this Section
2(e) (whether or not such Holder was a Notice Holder at the effective date
of
the Shelf Registration Statement) shall be named as a selling securityholder
in
the Shelf Registration Statement or related Prospectus in accordance with
the
requirements of this Section 2(e). Notwithstanding the foregoing, if (A)
the
Notes are called for redemption and the then prevailing market price of the
Common Stock is above the Exchange Price or (B) the Notes are exchanged as
provided for in Section 13.01(i), 13.01(ii) or 13.01(iv) of the Indenture,
then
the Company shall use reasonable best efforts to file the post-effective
amendment or supplement within five Business Days of the redemption date
or the
end of the exchange period, as applicable, or if such Notice and Questionnaire
is delivered during a Deferral Period, upon expiration of the Deferral Period.
3. Registration
Procedures.
The
following provisions shall apply
in
connection with the Shelf Registration Statement.
(a) The
Company shall:
(i) furnish
to
each
of
the
Representatives
and to
counsel for the Notice Holders,
not
less
than five Business Days prior
to
the filing thereof with the Commission, a copy of the
Shelf
Registration Statement
and each
amendment thereto
and each
amendment or supplement, if any, to the Prospectus included therein (including
all documents incorporated by reference therein after the initial filing)
and
shall
use its reasonable
best efforts
to
reflect in each such document, when so filed with the Commission, such comments
as the Representatives reasonably propose;
and
(ii) include
information regarding the Notice Holders and the methods of distribution
they
have elected for their Registrable Securities provided to the Company in
Notices
and Questionnaires as necessary to permit such distribution by the
methods specified therein.
(b) The
Company shall ensure that:
5
(i) the
Shelf
Registration Statement and any amendment thereto and any Prospectus forming
part
thereof and any amendment or supplement thereto complies in all material
respects with the Act; and
(ii) the
Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state
a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(c) The
Company shall advise the Representatives, the
Notice
Holders and any underwriter that has provided in writing to the Company a
telephone or facsimile number and address for notices, and confirm such advice
in writing, if requested (which notice pursuant to clauses (ii)-(v) hereof
shall
be accompanied by an instruction to suspend the use of the Prospectus until
the
Company shall have remedied the basis for such suspension):
(i) when
the
Shelf Registration Statement and any amendment thereto has been filed with
the
Commission and when the Shelf Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of
any
request by the Commission for any
amendment
or supplement to the Shelf Registration Statement or the Prospectus or for
additional information;
(iii) of
the
issuance by the Commission of any stop order suspending the effectiveness
of the
Shelf Registration Statement or the institution or
threatening of
any
proceeding for that purpose;
(iv) of
the
receipt by the Company of any notification with respect to the suspension
of the
qualification of the Common
Stock
included
therein for sale in any jurisdiction or the
institution or threatening of any proceeding
for such
purpose; and
(v) of
the
happening of any event that requires any change in the Shelf Registration
Statement or the Prospectus so that, as of such date, they
(A) do
not contain any untrue statement of a material fact
and
(B)
do
not
omit to state a material fact required to be stated therein or necessary
to make
the statements therein (in the case of the Prospectus, in the
light
of
the circumstances under which they were made) not misleading.
(d) The
Company shall use its reasonable best efforts to
prevent
the issuance of any
order
suspending the effectiveness of the Shelf Registration Statement or
the
qualification of the securities therein for sale in any jurisdiction
and, if
issued, to obtain as soon as possible the withdrawal thereof. The Company
shall
undertake
additional reasonable actions as required to permit unrestricted resales
of the
Common Stock in accordance with the terms and conditions of this Agreement.
(e) Upon
request, the
Company
shall furnish to each Notice Holder, without charge, at least one copy of
the
Shelf Registration Statement and any post-effective amendment
6
thereto,
including all
material incorporated therein by reference,
and, if
a Notice Holder so requests in writing, all exhibits thereto
(including
exhibits
incorporated
by reference
therein).
(f) During
the
Shelf Registration Period, the Company shall promptly deliver to each
Initial
Purchaser, each
Notice Holder, and
any
sales or placement agents or underwriters acting on their behalf, without
charge, as many copies of the Prospectus (including the
preliminary Prospectus,
if
any)
included
in the Shelf Registration Statement and any amendment or supplement thereto
as
any
such
person
may
reasonably request.
The
Company
consents to the use of the Prospectus or any amendment or supplement thereto
by
each of the foregoing in connection with the offering and sale of the
Common
Stock.
(g) Prior
to
any offering of Common Stock pursuant to the Shelf Registration Statement,
the
Company shall arrange for the qualification of the Common Stock for sale
under
the laws of such U.S.
jurisdictions
as any Notice
Holder shall
reasonably request and shall
maintain such qualification in effect so long as required;
provided
that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not then so qualified or to take any action that
would
subject it to service of process in suits,
other
than those arising out of the Initial Placement or any offering pursuant
to the
Shelf Registration Statement,
in any
jurisdiction where it is not then so subject.
(h) Upon
the
occurrence of any event contemplated by subsections (c)(ii)
through
(v)
above,
the Company shall promptly (or
within
the time period provided for by Section 3(i) hereof, if applicable) prepare
a
post-effective amendment to the Shelf Registration Statement or an amendment
or
supplement to the related Prospectus or file any other required document
so
that, as thereafter delivered to subsequent
purchasers
of the
securities included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact required
to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(i) Upon
the
occurrence or existence of any pending corporate development, public filings
with the Commission or any other material event that, in the reasonable judgment
of the Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus, the Company shall give
notice
(without notice of the nature or details of such events) to the Notice Holders
that the availability of the Shelf Registration Statement is suspended and,
upon
receipt of any such notice, each Notice Holder agrees (i) not to sell any
Registrable Securities pursuant to the Shelf Registration Statement until
such
Notice Holder’s receipt of copies of the supplemented or amended Prospectus
provided for in Section 3(i) hereof, or until it is advised in writing by
the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus and (ii) to hold such notice in confidence.
Except in the case of a suspension of the availability of the Shelf Registration
Statement and the related Prospectus solely as the result of the filing of
a
post-effective amendment or supplement to the Prospectus to add additional
selling securityholders therein, the period during which the availability
of the
Shelf Registration Statement and any Prospectus is suspended (the “Deferral
Period”) shall not exceed 45 days in any 90-day period or 90 days in any 360-day
period; provided,
that,
if the
event triggering the Deferral Period relates to a proposed or pending material
business transaction, the disclosure of which the board of directors of the
Company
7
determines
in good faith would be reasonably likely to impede the ability to consummate
the
transaction or would otherwise be seriously detrimental to the Company and
its
subsidiaries taken a whole, the Company may extend the Deferral Period from
45
days to 60 days in any 90-day period or from 90 days to 120 days in any 360-day
period.
(j) The
Company shall comply with all applicable rules and regulations of the Commission
and shall make generally available to its securityholders an earnings statement
satisfying the provisions of Section 11(a) of the Act as
soon as
practicable after the effective date of the Shelf Registration Statement
and
in any
event no later than 45 days after the end of a 12-month period (or 90 days,
if
such period is a fiscal year) beginning with the first month of the Company’s
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement.
(k) The
Company may require each Holder of Common Stock to be sold pursuant to the
Shelf
Registration Statement to furnish to the Company such information regarding
the
Holder
and
the distribution of such Common Stock as the Company may from time to time
reasonably require for inclusion in the Shelf Registration
Statement.
The Company
may
exclude from the Shelf Registration Statement the Common Stock of any Holder
that unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(l) Subject
to
Section 6 hereof, the
Company
shall enter into customary
agreements (including, if requested, an underwriting agreement in customary
form) and
take
all other appropriate actions in
order
to expedite or facilitate the registration or the disposition of the Common
Stock, and in connection therewith, if an underwriting agreement is entered
into,
cause
the same to contain customary indemnification provisions and
procedures.
(m) Subject
to
Section 6 hereof, the
Company
shall:
(i) make
reasonably available for inspection by the Holders of Common Stock to be
registered thereunder, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement, and any attorney, accountant or other
agent
retained by the Holders or any such underwriter all relevant financial and
other
records and pertinent corporate documents of the Company and its
subsidiaries;
(ii) cause
the
Company’s officers, directors, employees,
accountants and auditors
to supply
all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with the Shelf
Registration Statement as is customary for similar due diligence
examinations;
(iii) make
such
representations and warranties to the Holders of Common Stock registered
thereunder and the underwriters, if any, in form, substance and scope as
are
customarily made by issuers to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in the
Purchase Agreement;
8
(iv) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory
to the
Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be
reasonably requested by such Holders and underwriters;
(v) obtain
“comfort” letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or
are
required to be, included in the Shelf Registration Statement), addressed
to each
selling Holder of Common Stock registered thereunder and the underwriters,
if
any, in customary form and covering matters of the type customarily covered
in
“comfort” letters in connection with primary underwritten offerings;
and
(vi) deliver
such documents and certificates as may be reasonably requested by the
Majority
Holders
or the Managing Underwriters, if any, including those to evidence compliance
with Section 3(i) hereof
and
with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company.
Subject
to
Section 6 hereof, the
actions
set forth in clauses (iii), (iv), (v) and (vi) of this paragraph
(m)
shall
be
performed in connection with any underwriting or similar agreement as and
to the
extent required thereunder.
(n) In
the
event that any Broker-Dealer shall underwrite any Common Stock or participate
as
a member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the NASD Rules) thereof, whether as a
Holder of such Common Stock or as an underwriter, a placement or sales agent
or
a broker or dealer in respect thereof, or otherwise, the Company shall, upon
the
reasonable request of such Broker-Dealer, comply with any such reasonable
request of such Broker-Dealer in complying with the NASD Rules.
(o) The
Company shall use its reasonable best efforts to take all other steps necessary
to effect the registration of the Common Stock covered by the Shelf Registration
Statement.
4. Registration
Expenses.
The
Company shall bear all expenses incurred in connection with the performance
of
its obligations under Sections 2 and 3 hereof and shall
reimburse the Holders for the reasonable fees and disbursements of one firm
or
counsel (which
shall initially be ▇▇▇▇▇
▇▇▇▇
& ▇▇▇▇▇▇▇▇, but
which
may be another nationally recognized law firm experienced in securities matters
designated by the
Majority
Holders)
to act as
counsel for the Holders in connection therewith.
9
5. Indemnification
and Contribution.
(a) The
Company and the Operating Partnership agree to indemnify and hold harmless
each
Holder of Common Stock covered
by
the Shelf
Registration Statement,
each
Initial Purchaser, the directors, officers, employees, Affiliates and agents
of
each such Holder or Initial Purchaser and each person who controls any such
Holder or Initial Purchaser within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal
or
state statutory law or regulation, at common law or otherwise, insofar as
such
losses, claims, damages or liabilities (or actions in respect thereof)
caused
by
any
untrue
statement or alleged untrue statement of a material fact contained in the
Shelf
Registration Statement as originally filed or in any amendment thereof, or
in
any preliminary Prospectus or the
Prospectus,
or in any amendment thereof or supplement thereto, or caused
by
the
omission or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein (in
the
case of any preliminary Prospectus or the Prospectus, in the light of the
circumstances under which they were made) not
misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided,
however,
that the
Company and the Operating Partnership will not be liable in any such
case
to
the extent that any such loss, claim, damage or liability is
caused
by or
is
based upon any such untrue statement or alleged untrue statement or omission
or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the party claiming
indemnification specifically for inclusion therein.
The
Company and the Operating Partnership also agree to indemnify as
provided in this Section 5(a) or
contribute as provided in Section 5(d) hereof
to
Losses
of each
underwriter,
if
any,
of Common
Stock registered
under the Shelf Registration Statement, its directors,
officers,
employees, Affiliates
or
agents
and each
person who controls such underwriter on substantially the same basis as that
of
the indemnification of the Initial Purchasers
and the
selling Holders provided in this paragraph (a) and shall, if requested by
any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 3(l) hereof.
(b) Each
Holder of securities covered by the Shelf Registration Statement (including
each
Initial Purchaser
that is a
Holder, in such capacity)
severally and
not
jointly agrees
to
indemnify and hold harmless the Company and the Operating
Partnership,
each
of
its directors,
each of
its officers who signs the
Shelf
Registration Statement and each person who controls the Company or the Operating
Partnership within the meaning of either the Act or the Exchange Act,
to the
same extent as the foregoing indemnity from the Company and the Operating
Partnership to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such
Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement shall be
acknowledged by each Notice Holder that is not an Initial Purchaser in such
Notice Holder’s Notice and Questionnaire and shall be
in
addition to any liability that any such Notice
Holder
may
otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 5 or notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this
Section
5,
notify
the
10
indemnifying
party in writing of the commencement thereof; but the failure so to notify
the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses;
and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel (including
local counsel) of
the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel,
other
than local counsel if not appointed by the indemnifying party,
retained
by the indemnified party or parties except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel (including
local counsel) to
represent the indemnified party in an action, the indemnified party shall
have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of
interest; (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time
after notice of the institution of such action;
or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section
5
is
unavailable to or insufficient to hold harmless an indemnified party for
any
reason, then each applicable indemnifying party shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending loss, claim, liability, damage or action)
(collectively “Losses”) to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by
such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Placement and the Shelf Registration Statement which
resulted in such Losses; provided,
however,
that in
no case shall any Initial Purchaser be responsible, in the aggregate, for
any
amount in excess of the purchase discount or commission applicable
to
the
Notes,
as set
forth in
the Final
Memorandum, nor shall any underwriter be responsible for any amount in excess
of
the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Shelf Registration Statement which resulted
in
such Losses. If the allocation provided by the immediately preceding sentence
is
unavailable for any reason, the indemnifying party and the
11
indemnified
party shall contribute in such proportion as is appropriate to reflect not
only
such relative benefits but also the relative fault of such indemnifying party,
on the one hand, and such indemnified party, on the other hand, in connection
with the statements or omissions which resulted in such Losses as well as
any
other relevant equitable considerations. Benefits received by the Company
and
the
Operating Partnership shall
be
deemed to be equal to the total net proceeds from the Initial Placement (before
deducting expenses) as set forth in
the
Final
Memorandum.
Benefits
received by the Initial Purchasers
shall be deemed to be equal to the total purchase discounts and commissions
as
set forth on the cover page of the Final Memorandum, and benefits received
by
any other Holders shall be deemed to be equal to the value of receiving Common
Stock registered under the Act. Benefits received by any underwriter shall
be
deemed to be equal to the total underwriting discounts and commissions, as
set
forth on the cover page of the Prospectus forming a part of the Shelf
Registration Statement which resulted in such Losses. Relative fault shall
be
determined by reference to, among other things, whether any untrue
or
any alleged
untrue
statement of
a
material fact or
omission or
alleged
omission to state a material fact relates
to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand,
the
intent of the parties and their relative knowledge, access to information
and
opportunity to correct or prevent such untrue statement or omission.
The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even
if
the Holders were treated as one entity for such purpose) or
any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section
5,
each
person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder
shall
have the same rights to contribution as such Holder, and each person who
controls the Company or
the
Operating Partnership
within
the meaning of either the Act or the Exchange Act, each officer of the Company
or
the
Operating Partnership
who shall
have signed the Shelf Registration Statement and each director of the Company
or
the
Operating Partnership
shall
have the same rights to contribution as the Company
and the
Operating Partnership,
subject
in each case to the applicable terms and conditions of this paragraph
(d).
(e) The
provisions of this Section 5
shall
remain in full force and effect, regardless of any investigation made by
or on
behalf of any Holder or the Company or
the
Operating Partnership
or any of
the indemnified persons referred to in this
Section
5,
and
shall survive the sale by a Holder of securities covered by the Shelf
Registration Statement.
6. Underwritten
Registrations.
(a)
In no
event will the method of distribution of Registrable Securities take the
form of
an underwritten offering without the prior written consent of the Company.
Consent may be conditioned on waivers of any of the obligations in Section
3,
Section 4 or Section 5.
(b) If
any
shares of Common Stock covered by the Shelf Registration Statement are to
be
sold in an underwritten offering, the Managing Underwriters shall be selected
by
the Company, subject to the prior written consent of the Majority Holders,
which
consent shall not be unreasonably withheld.
12
(c) No
person
may participate in any underwritten offering pursuant to the Shelf Registration
Statement unless such person (i) agrees to sell such person’s shares of Common
Stock on the basis reasonably provided in any underwriting arrangements approved
by the persons entitled hereunder to approve such arrangements; and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms
of such underwriting arrangements.
7. Registration
Defaults.
If any
of the following events shall occur, then the Company shall pay additional
interest on the Notes ( “Additional Interest”) to the Holders as
follows:
(a) if
the
Shelf Registration Statement (which shall be, if the Company is then a WKSI,
an
Automatic Shelf Registration Statement) is not filed with the Commission
on or
prior to April 30, 2007, then commencing on May 1, 2007, Additional Interest
shall accrue on the aggregate outstanding principal amount of the Notes,
at a
rate of 0.25% per annum for the first 90 days from and including May 1, 2007
and
0.50% per annum thereafter; or
(b) if
the
Shelf Registration Statement is not declared effective by the Commission
(or has
not become effective in the case of an Automatic Shelf Registration Statement)
on or prior to the 270th day following the Closing Date, then commencing
on the
271st day after the Closing Date, Additional Interest shall accrue on the
aggregate outstanding principal amount of the Notes, at a rate of 0.25% per
annum for the first 90 days from and including such 271st day and 0.50% per
annum thereafter; or
(c) if
the
Shelf Registration Statement has been declared or become effective but ceases
to
be effective or usable for the offer and sale of the Registrable Securities,
other than in connection with (A) a Deferral Period or (B) as a result of
a
requirement to file a post-effective amendment or supplement to the Prospectus
to make changes to the information regarding selling securityholders or the
plan
of distribution provided for therein, at any time during the Shelf Registration
Period and the Company does not cure the lapse of effectiveness or usability
within 10 Business Days (or, if a Deferral Period is then in effect and subject
to the 10 Business Day filing requirement and the proviso regarding the filing
of post-effective amendments in Section 2(e) with respect to any Notice and
Questionnaire received during such period, within 10 Business Days following
the
expiration of such Deferral Period or period permitted pursuant to Section
2(e))
then Additional Interest shall accrue on the aggregate outstanding principal
amount of the Notes at a rate of 0.25% per annum for the first 90 days from
and
including the day following such tenth Business Day and 0.50% per annum
thereafter; or
(d) if
the
Company through its omission fails to name as a selling securityholder any
Holder that had complied timely with its obligations hereunder in a manner
to
entitle such Holder to be so named in (i) the Shelf Registration Statement
at
the time it first became effective or (ii) any Prospectus at the later of
time
of filing thereof or the time the Shelf Registration Statement of which the
Prospectus forms a part becomes effective then Additional Interest shall
accrue,
on the aggregate outstanding principal amount of the Notes held by such Holder,
at a rate of 0.25% per annum for the first 90 days from and including the
day
following the effective date of such Shelf Registration Statement or the
time of
filing of such Prospectus, as the case may be, and 0.50% per annum thereafter;
or
13
(e) if
the
aggregate duration of Deferral Periods in any period exceeds the number of
days
permitted in respect of such period pursuant to Section 3(i) hereof, then
commencing on the day the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period, Additional
Interest shall accrue on the aggregate outstanding principal amount of the
Notes
at a rate of 0.25% per annum for the first 90 days from and including such
date,
and 0.50% per annum thereafter;
provided,
however,
that (1)
upon the filing of the Shelf Registration Statement (in the case of paragraph
(a) above), (2) upon the effectiveness of the Shelf Registration Statement
(in
the case of paragraph (b) above), (3) upon such time as the Shelf Registration
Statement which had ceased to remain effective or usable for resales again
becomes effective and usable for resales (in the case of paragraph (c) above),
(4) upon the time such Holder is permitted to sell its Registrable Securities
pursuant to any Shelf Registration Statement and Prospectus in accordance
with
applicable law (in the case of paragraph (d) above), (5) upon the termination
of
the Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be exceeded (in the case
of
paragraph (f) above), or (6) in any case, notwithstanding the preceding clauses
(1) through (5), upon the earlier of the two dates provided in clauses (i)
and
(ii) of Section 2(c), Additional Interest shall cease to accrue.
Any
amounts of Additional Interest due pursuant to this Section 7 will be payable
in
cash on the next succeeding interest payment date to Holders entitled to
receive
such Additional Interest on the relevant record dates for the payment of
interest. If any Note ceases to be outstanding during any period for which
Additional Interest is accruing, the Company will prorate the Additional
Interest payable with respect to such Note.
The
Additional Interest rate on the Notes shall not exceed in the aggregate 0.50%
per annum and shall not be payable under more than one clause above for any
given period of time, except that if Additional Interest would be payable
because of more than one Registration Default, but at a rate of 0.25% per
annum
under one Registration Default and at a rate of 0.50% per annum under the
other,
then the Additional Interest rate shall be the higher rate of 0.50% per
annum.
Notwithstanding
any provision in this Agreement, in no event shall Additional Interest accrue
to
holders of Common Shares issued upon exchange of Notes. In lieu thereof,
the
Company shall increase the Conversion Rate (as defined in the Indenture)
by 3%
for each $1,000 principal amount of Notes exchanged at a time when such
Registration Default has occurred and is continuing.
8. No
Inconsistent Agreements.
Neither
the
Company
nor
the
Operating Partnership has
entered into, and each
agrees
not
to enter into, any agreement with respect to its securities that is inconsistent
with the registration
rights
granted to the Holders herein.
9. Rule
144A and Rule 144.
So long
as any Registrable Securities remain outstanding, the Company shall use its
reasonable best efforts to file the reports required to be filed by it under
Rule 144A(d)(4) under the Act and the Exchange Act in a timely manner and,
if at
anytime the Company is not required to file such reports, it will, upon the
written request of any Holder of Registrable Securities, make publicly available
other information so long as
14
necessary
to permit sales of such Holder’s Registrable Securities pursuant to Rules 144
and 144A of the Act. The Company covenants that it will take such further
action
as any Holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Act within the limitation of the
exemptions provided by Rules 144 and 144A (including, without limitation,
the
requirements of Rule 144A(d)(4)). Upon the written request of any Holder
of
Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 9 shall be deemed to require the Company
or the Operating Partnership to register any of its securities pursuant to
the
Exchange Act.
10. Listing.
The
Company shall use its reasonable best efforts to maintain the approval of
the
Common Stock for listing on the New York Stock Exchange.
11. Amendments
and Waivers.
The
provisions of this Agreement may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
the
Majority
Holders; provided
that,
with respect to any matter that directly or indirectly affects the rights
of any
Initial Purchaser hereunder, the Company shall obtain the written consent
of
each such Initial Purchaser against which such amendment, qualification,
modification,
supplement,
waiver or consent is to be effective; provided,
further,
that
no
amendment,
qualification, modification,
supplement,
waiver or consent with
respect to Section 7 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder;
and
provided,
further,
that
the
provisions of this Article 11 may not be
amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has
obtained the written consent of the Initial
Purchasers and each
Holder.
12. Notices.
All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand-delivery, first-class mail, telex, telecopier or
air
courier guaranteeing overnight delivery:
(a) if
to a
Holder, at the most current address given by such holder to the Company in
accordance with the provisions of the Notice and Questionnaire;
(b) if
to
the
Initial Purchasers or the
Representatives, initially at the address or
addresses set
forth
in the Purchase Agreement; and
(c) if
to the
Company
or the
Operating Partnership,
initially at its address set forth in the Purchase Agreement.
All
such
notices and communications shall be deemed to have been duly given when
received.
The
Initial Purchasers,
the
Company or
the
Operating Partnership by
notice
to the other parties
may
designate additional or different addresses for subsequent notices or
communications.
15
Notwithstanding
the foregoing, notices given to Holders holding Notes in book-entry form
may be
given through the facilities of DTC or any successor depository.
13. Remedies.
Each
Holder, in addition to being entitled to exercise all rights provided to
it
herein or in the Purchase Agreement or granted by law, including recovery
of
liquidated or other damages, will be entitled to specific performance of
its
rights under this Agreement. The Company and the Operating Partnership agree
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by them of the provisions of this Agreement and hereby
agree to waive in any action for specific performance the defense that a
remedy
at law would be adequate.
14. Successors.
This
Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective successors
and assigns, including, without the need for an express assignment or any
consent by the Company or
the
Operating Partnership thereto,
subsequent Holders of Common Stock,
and the
indemnified persons referred to in Section 5 hereof.
The
Company and
the
Operating Partnership hereby
agree to extend the benefits of this Agreement to any Holder of Common
Stock,
and any
such Holder may specifically enforce the provisions of this Agreement as
if an
original party hereto.
15. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and
the
same agreement.
16. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17. Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York applicable to contracts made and to be performed in the
State
of New York. The parties hereto each hereby waive any right to trial by jury
in
any action, proceeding or counterclaim arising out of or relating to this
Agreement.
18. Severability.
In the
event that any one of more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
19. Common
Stock Held by the Company, etc.
Whenever
the consent or approval of Holders of a specified percentage of principal
amount
of Common Stock is required hereunder, Common Stock held by the Company or
its
Affiliates (other than subsequent Holders of Common Stock if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of
such
Common Stock) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
16
Very
truly
yours,
FIRST
INDUSTRIAL REALTY TRUST, INC.
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President - Corporate Legal
FIRST
INDUSTRIAL, L.P.
|
By:
|
First
Industrial Realty Trust, Inc.,
|
as its sole general partner
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Vice President - Corporate Legal
The
foregoing Agreement is hereby confirmed and
accepted
as of the date first above written.
▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
CREDIT
SUISSE SECURITIES (USA) LLC
▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇
& ▇▇▇▇▇ INCORPORATED
By: ▇.▇.
▇▇▇▇▇▇ SECURITIES INC.
on
behalf
of itself and the several Initial Purchasers
listed
in
Schedule I
to the
Purchase Agreement
By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title:
Vice President
17