sv3asr
As filed with the Securities and Exchange Commission on
April 30, 2007
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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FIRST INDUSTRIAL REALTY TRUST,
INC.
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FIRST INDUSTRIAL,
L.P.
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(Exact name of registrant as
specified in its charter)
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(Exact name of registrant as
specified in its charter)
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Maryland
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Delaware
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(State or other jurisdiction of
incorporation or organization)
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(State or other jurisdiction of
incorporation or organization)
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36-3935116
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36-3924586
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(I.R.S. Employer Identification
Number)
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(I.R.S. Employer Identification
Number)
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311 S. Wacker Drive, Suite 4000
Chicago, Illinois 60606
(312) 344-4300
(Address, including zip
code, and telephone number, including area code,
of registrants principal executive offices)
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Copies to:
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Michael W. Brennan
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Gerald S.
Tanenbaum, Esq.
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President and Chief Executive
Officer
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Roger
Andrus, Esq.
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First Industrial Realty Trust,
Inc.
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Cahill Gordon & Reindel
llp
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311 S. Wacker Drive,
Suite 4000
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80 Pine Street
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Chicago, Illinois
60606
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New York, New York
10005
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(312) 344-4300
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(212) 701-3000
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(Name, address, including zip
code, and telephone number, including
area code, of agent for service)
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Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box: o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box: þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering: o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering: o
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following box: þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following box: o
CALCULATION
OF REGISTRATION FEE
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Amount to Be
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of Securities to Be Registered
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Registered(1)
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Offering Price Per Unit(1)
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Aggregate Offering Price(1)
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Registration Fee(1)
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Debt Securities
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Common Stock (par value
$.01 per share)
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Preferred Stock (par value
$.01 per share)
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Depositary Shares
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(1)
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An indeterminate aggregate initial
offering price or number of the securities of each identified
class is being registered as may from time to time be offered
and sold at indeterminate prices. Securities registered by this
registration statement may be offered and sold separately or
together with other securities. Separate consideration may or
may not be received for securities that are issuable upon
conversion of, or in exchange for, or upon exercise of,
convertible or exchangeable securities. In accordance with
Rules 456(b) and 457(r), the registrants are deferring
payment of all of the registration fee, except for $38,010 that
has already been paid with respect to securities that were
previously registered pursuant to Registration Statement
No. 333-117842,
initially filed with the SEC on August 2, 2004, and that
were not sold thereunder in accordance with Rule 457(p).
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PROSPECTUS
FIRST
INDUSTRIAL REALTY TRUST, INC.
and
FIRST
INDUSTRIAL, L.P.
First Industrial Realty Trust, Inc. and First Industrial, L.P.
may offer the following securities for sale through this
prospectus from time to time:
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debt securities;
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shares of common stock;
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shares of preferred stock; and
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shares of preferred stock represented by depositary shares.
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We will provide the specific terms of the securities that we are
offering in one or more supplements to this prospectus. Any
supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any
prospectus supplement together with the additional information
described under Where You Can Find More Information
before investing in our securities.
The common stock of First Industrial Realty Trust, Inc. is
listed on the New York Stock Exchange (the NYSE)
under the symbol FR.
We may sell offered securities through agents, to or through
underwriters or through dealers, directly to purchasers or
through a combination of these methods of sale.
This prospectus may not be used to consummate sales of offered
securities unless accompanied by a prospectus supplement.
Investing in the securities of First Industrial Realty Trust,
Inc. or First Industrial, L.P. involves risks that are described
in the Risk Factors section of our Annual Reports on
Form 10-K
for the year ended December 31, 2006, First Industrial
Realty Trust, Inc.s Current Report on
Form 8-K
dated April 30, 2007, First Industrial, L.P.s Current
Report on
Form 8-K
dated April 30, 2007 and other reports that we may file
from time to time with the Securities and Exchange
Commission.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is April 30, 2007.
TABLE OF
CONTENTS
We have not authorized any dealer, salesperson or other person
to give you written information other than this prospectus or
any prospectus supplement or to make representations as to
matters not stated in this prospectus or any prospectus
supplement. You must not rely on unauthorized information. This
prospectus and any prospectus supplement are not an offer to
sell these securities or our solicitation of your offer to buy
the securities in any jurisdiction where that would not be
permitted or legal. The delivery of this prospectus or any
prospectus supplement at any time does not create an implication
that the information contained herein or therein is correct as
of any time subsequent to their respective dates.
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that First
Industrial Realty Trust, Inc. (the Company or
First Industrial) and First Industrial, L.P. (the
Operating Partnership) filed with the Securities and
Exchange Commission, (the SEC or the
Commission), utilizing the shelf
registration process, relating to the debt securities, common
stock, preferred stock and depositary shares described in this
prospectus. Under this shelf registration process, the Company
and the Operating Partnership may sell an unlimited aggregate
principal amount of any combination of the securities described
in this prospectus from time to time and in one or more
offerings.
This prospectus provides you with a general description of the
securities that the Company and the Operating Partnership may
offer. Each time the Company or the Operating Partnership sells
securities, it will provide a prospectus supplement that will
contain specific information about the terms of that offering.
The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with the
additional information described under the headings Where
You Can Find More Information and Documents
Incorporated by Reference.
As used in this prospectus, we, us and
our refer to the Company and its subsidiaries,
including the Operating Partnership, unless the context
otherwise requires.
THE
COMPANY AND THE OPERATING PARTNERSHIP
The Company is a real estate investment trust, or REIT, subject
to Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the Code). The Company and its
consolidated partnerships, corporations and limited liability
companies are a self-administered and fully integrated real
estate company which owns, manages, acquires, sells and develops
industrial real estate. As of December 31, 2006, we owned
931 industrial properties (inclusive of developments in
progress) located in 28 states in the United States and one
province in Canada, containing an aggregate of approximately
76.9 million square feet of gross leasable area.
Our interests in our properties and land parcels are held
through partnerships, corporations and limited liability
companies controlled by the Company, including the Operating
Partnership, of which the Company is the sole general partner.
As of December 31, 2006, the Company held approximately
87.3% of the outstanding limited partnership units of the
Operating Partnership. At that date, approximately 12.7% of the
outstanding limited partnership units were held by outside
investors, including certain members of the management of the
Company. Each limited partnership unit, other than those held by
the Company, may be exchanged for cash or, at the Companys
option, one share of First Industrial common stock, subject to
adjustments. Upon each exchange, the number of limited
partnership units held by the Company, and its ownership
percentage of the Operating Partnership, increase. As of
December 31, 2006, the Company also owned preferred general
partnership interests in the Operating Partnership with an
aggregate liquidation priority of $325,000,000.
We utilize an operating approach that combines the effectiveness
of decentralized, locally based property management,
acquisition, sales and development functions with the cost
efficiencies of centralized acquisition, sales and development
support, capital markets expertise, asset management and fiscal
control systems.
We have grown and will seek to continue to grow through the
acquisition and development of industrial properties.
The Company, a Maryland corporation organized on August 10,
1993, completed its initial public offering in June 1994. The
Operating Partnership is a Delaware limited partnership
organized in November 1993. Our principal executive offices are
located at 311 S. Wacker Drive, Suite 4000,
Chicago, Illinois 60606, telephone number
(312) 344-4300.
Our web site is www.firstindustrial.com. The information
on or linked to our web site is not a part of, and is not
incorporated by reference into, this prospectus.
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USE OF
PROCEEDS
Unless otherwise described in the applicable prospectus
supplement, the Company and the Operating Partnership intend to
use the net proceeds from the sale of securities offered by this
prospectus and the applicable prospectus supplement for general
corporate purposes. Any proceeds from the sale of common stock,
preferred stock or depositary shares by the Company will be
invested in the Operating Partnership, which will use the
proceeds for the same purposes.
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DESCRIPTION
OF DEBT SECURITIES
The debt securities will be issued under an indenture, dated as
of May 13, 1997, between the Operating Partnership and
U.S. Bank National Association (formerly known as First
Trust National Association), as trustee, which has been
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part, subject to such
amendments or supplements as may be adopted from time to time.
The indenture is subject to and governed by the Trust Indenture
Act of 1939, as amended. The statements made under this heading
relating to the debt securities and the indenture are summaries
only, do not purport to be complete and are qualified in their
entirety by reference to the debt securities and the indenture.
All material terms of the debt securities and the indenture,
other than those disclosed in the applicable prospectus
supplement, are described in this prospectus.
The debt securities to be offered under this prospectus and in
any applicable prospectus supplement will be investment
grade securities, meaning that at the time of the offering
of the debt securities, at least one nationally recognized
statistical rating organization, as defined in the Securities
Exchange Act of 1934, as amended (the Exchange Act),
will have rated the debt securities in one of its generic rating
categories that signifies investment grade. Typically the four
highest rating categories, within which there may be
sub-categories
or gradations indicating relative standing, signify investment
grades. An investment grade rating is not a recommendation to
buy, sell or hold securities, is subject to revision or
withdrawal at any time by the assigning entity and should be
evaluated independently of any other rating.
Terms
General. The debt securities will be direct
unsecured obligations of the Operating Partnership. The
indebtedness represented by the debt securities will rank
equally with all other unsecured and unsubordinated indebtedness
of the Operating Partnership. No partner of the Operating
Partnership, whether limited or general, including the Company,
has any obligation for the payment of principal of, or premium,
if any, or interest, if any, on, or any other amount with
respect to, the debt securities. The particular terms of the
debt securities offered by a prospectus supplement, including
any applicable federal income tax considerations, will be
described in the applicable prospectus supplement, along with
any applicable modifications of or additions to the general
terms of the debt securities as described in this prospectus and
in the indenture. For a description of the terms of any series
of debt securities, you should read both the prospectus
supplement relating to the debt securities and the description
of the debt securities in this prospectus.
Except as set forth in any prospectus supplement, the debt
securities may be issued without limit as to aggregate principal
amount, in one or more series, in each case as established from
time to time by the Operating Partnership or as set forth in the
indenture or in one or more supplemental indentures to the
indenture. All debt securities of one series need not be issued
at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the debt
securities of such series, for issuance of additional debt
securities of such series.
The indenture provides that the Operating Partnership may, but
need not, designate more than one trustee, each with respect to
one or more series of debt securities. Any trustee under the
indenture may resign or be removed with respect to one or more
series of debt securities, and a successor trustee may be
appointed to act with respect to the series. In the event that
two or more persons are acting as trustee with respect to
different series of debt securities, each trustee shall be a
trustee of a trust under the indenture separate and apart from
the trust administered by any other trustee. In that event and
except as otherwise indicated in this prospectus, any action
described in this prospectus to be taken by each trustee may be
taken by each such trustee with respect to, and only with
respect to, the one or more series of debt securities for which
it is trustee under the indenture.
The following summaries set forth general terms and provisions
of the indenture and the debt securities. The prospectus
supplement relating to the applicable series of debt securities
will contain further terms of the debt securities, including the
following specific terms:
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The title of the debt securities;
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The aggregate principal amount of the debt securities and any
limit on the aggregate principal amount;
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The price, expressed as a percentage of the principal amount
thereof, at which the debt securities will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of
acceleration of maturity;
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The date or dates, or the method for determining the date or
dates, on which the principal of the debt securities will be
payable;
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The rate or rates, which may be fixed or variable, or the method
by which the rate or rates shall be determined, at which the
debt securities will bear interest, if any;
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The date or dates, or the method for determining the date or
dates, from which any interest will accrue, the dates on which
any interest will be payable, the record dates for interest
payment dates, or the method by which the dates shall be
determined, the persons to whom the interest will be payable,
and the basis upon which interest shall be calculated if other
than that of a
360-day year
of twelve
30-day
months;
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The place or places where the principal of and premium or
make-whole amount, if any, and interest, if any, on the debt
securities will be payable, where the debt securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Operating Partnership in
respect of the debt securities and the indenture may be served;
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The period or periods, if any, within which, the price or prices
at which, and the other terms and conditions upon which, the
debt securities may, under any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of
the Operating Partnership;
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The obligation, if any, of the Operating Partnership to redeem,
repay or purchase the debt securities under any sinking fund or
analogous provision or at the option of a holder thereof, and
the period or periods within which, the price or prices at
which, and the other terms and conditions upon which, the debt
securities will be redeemed, repaid or purchased, as a whole or
in part, pursuant to such obligation;
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If other than U.S. dollars, the currency or currencies in
which the debt securities are denominated and payable, which may
be a foreign currency or units of two or more foreign currencies
or a composite currency or currencies, and the terms and
conditions relating thereto;
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Whether the amount of payments of principal of and premium or
make-whole amount, if any, including any amount due upon
redemption, if any, or interest, if any, on the debt securities
may be determined with reference to an index, formula or other
method, which index, formula or method may, but need not, be
based on the yield on or trading price of other securities,
including United States Treasury securities, or on a currency,
currencies, currency unit or units, or composite currency or
currencies, and the manner in which such amounts shall be
determined;
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Whether the principal of and premium or make-whole amount, if
any, or interest on the debt securities of the series are to be
payable, at the election of the Operating Partnership or a
holder of debt securities, in a currency or currencies, currency
unit or units or composite currency or currencies other than
that in which the debt securities are denominated or stated to
be payable, the period or periods within which, and the terms
and conditions upon which, that election may be made, and the
time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the
currency or currencies, currency unit or units or composite
currency or currencies in which the debt securities are
denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which the debt securities are to be so payable;
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Provisions, if any, granting special rights to the holders of
debt securities of the series upon the occurrence of such events
as may be specified;
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Any deletions from, modifications of or additions to the events
of default or covenants of the Operating Partnership with
respect to debt securities of the series, whether or not such
events of default or covenants are consistent with the events of
default or covenants described herein;
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Whether and under what circumstances the Operating Partnership
will pay any additional amounts on the debt securities in
respect of any tax, assessment or governmental charge and, if
so, whether the Operating Partnership will have the option to
redeem the debt securities in lieu of making such payment;
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Whether debt securities of the series are to be issuable as
registered securities, bearer securities (with or without
coupons) or both, any restrictions applicable to the offer, sale
or delivery of bearer securities and the terms upon which bearer
securities of the series may be exchanged for registered
securities of the series and vice versa, if permitted by
applicable laws and regulations, whether any debt securities of
the series are to be issuable initially in temporary global form
and whether any debt securities of the series are to be issuable
in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent
global security may exchange such interests for debt securities
of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in the
indenture, and, if registered securities of the series are to be
issuable as a global security, the identity of the depository
for such series;
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The date as of which any bearer securities of the series and any
temporary global security representing outstanding debt
securities of the series shall be dated if other than the date
of original issuance of the first security of the series to be
issued;
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The person to whom any interest on any registered security of
the series shall be payable, if other than the person in whose
name that security, or one or more predecessor securities, is
registered at the close of business on the regular record date
for such interest, the manner in which, or the person to whom,
any interest on any bearer security of the series shall be
payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest
payable on a temporary global security on an interest payment
date will be paid if other than in the manner provided in the
indenture;
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Whether the debt securities will be issued in certificated or
book-entry form;
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The applicability, if any, of the defeasance and covenant
defeasance provisions of the indenture to the debt securities of
the series;
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If the debt securities of the series are to be issuable in
definitive form, whether upon original issue or upon exchange of
a temporary security of the series, only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form
and/or terms
of the certificates, documents or conditions; and
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Any other terms of the series, not inconsistent with the Trust
Indenture Act of 1939, as amended.
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If so provided in the applicable prospectus supplement, the debt
securities may be issued at a discount below their principal
amount and provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the
maturity thereof. In such cases, all material U.S. federal
income tax, accounting and other considerations applicable to
such original issue discount securities will be described in the
applicable prospectus supplement.
Except as may be set forth in any prospectus supplement, the
indenture does not contain any provisions that would limit the
ability of the Operating Partnership to incur indebtedness or
that would afford holders of debt securities protection in the
event of a highly leveraged or similar transaction involving the
Operating Partnership or in the event of a change of control.
Restrictions on ownership and transfers of the common stock and
preferred stock of the Company under its Articles of
Incorporation are designed to preserve the Companys
qualification as a REIT and, therefore, may act to prevent or
hinder a change of control. See
5
Restrictions on Transfers of Capital Stock.
Reference is made to the applicable prospectus supplement for
information with respect to any deletions from, modifications
of, or additions to, the events of default or covenants of the
Operating Partnership that are described below, including any
addition of a covenant or other provision providing event risk
or similar protection.
Denomination,
Interest, Registration and Transfer
Unless otherwise provided in the applicable prospectus
supplement, the debt securities of any series will be issuable
in denominations of $1,000 and integral multiples thereof. Where
debt securities of any series are issued in bearer form, the
special restrictions and considerations, including special
offering restrictions and special U.S. federal income tax
considerations, applicable to those debt securities and to
payment on and transfer and exchange of those debt securities
will be described in the applicable prospectus supplement.
Bearer debt securities will be transferable by delivery.
Unless otherwise provided in the applicable prospectus
supplement, any interest not punctually paid or duly provided
for on any interest payment date with respect to a debt security
in registered form, or defaulted interest, will
immediately cease to be payable to the holder on the applicable
regular record date and may either be paid to the person in
whose name the debt security is registered at the close of
business on a special record date for the payment of the
defaulted interest to be fixed by the trustee, in which case
notice thereof shall be given to the holder of the debt security
not less than 10 days prior to the 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 such debt securities are listed, all as more completely
described in the indenture.
Subject to certain limitations imposed upon debt securities
issued in book-entry form, the debt securities of any series
will be exchangeable for any authorized denomination of other
debt securities of the same series and of a like aggregate
principal amount and tenor upon surrender of the debt securities
at the corporate trust office of the applicable trustee or at
the office of any transfer agent designated by the Operating
Partnership for such purpose. In addition, subject to certain
limitations imposed upon debt securities issued in book-entry
form, the debt securities of any series may be surrendered for
registration of transfer or exchange thereof at the corporate
trust office of the applicable trustee or at the office of any
transfer agent designated by the Operating Partnership for that
purpose. Every debt security in registered form surrendered for
registration of transfer or exchange must be duly endorsed or
accompanied by a written instrument of transfer, and the person
requesting that action must provide evidence of title and
identity satisfactory to the applicable trustee or transfer
agent. No service charge will be made for any registration of
transfer or exchange of any debt securities, but the Operating
Partnership may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection
therewith. If the applicable prospectus supplement refers to any
transfer agent, in addition to the applicable trustee, initially
designated by the Operating Partnership with respect to any
series of debt securities, the Operating Partnership may at any
time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer
agent acts, except that the Operating Partnership will be
required to maintain a transfer agent in each place of payment
for that series. The Operating Partnership may at any time
designate additional transfer agents with respect to any series
of debt securities.
Neither the Operating Partnership nor any trustee shall be
required to
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before the selection of any debt securities for
redemption and ending at the close of business on
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if the debt securities are issuable only as registered
securities, the day of the mailing of the relevant notice of
redemption, and
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if the debt securities are issuable as bearer securities, the
day of the first publication of the relevant notice of
redemption or, if the debt securities are also issuable as
registered securities and there is no publication, the mailing
of the relevant notice of redemption;
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register the transfer of or exchange any debt security, or
portion thereof, so selected for redemption, in whole or in
part, except the unredeemed portion of any debt security being
redeemed in part;
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exchange any bearer security selected for redemption except
that, to the extent provided with respect to the bearer
security, the bearer security may be exchanged for a registered
security of that series and of like tenor, provided that the
registered security shall be simultaneously surrendered for
redemption; or
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issue, register the transfer of or exchange any debt security
that has been surrendered for repayment at the option of the
holder, except the portion, if any, of the debt security not to
be so repaid.
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Payment in respect of debt securities in bearer form will be
made in the currency and in the manner designated in the
applicable prospectus supplement, subject to any applicable laws
and regulations, at such paying agencies outside the United
States as the Operating Partnership may appoint from time to
time. The paying agents outside the United States, if any,
initially appointed by the Operating Partnership for a series of
debt securities will be named in the applicable prospectus
supplement. Unless otherwise provided in the applicable
prospectus supplement, the Operating Partnership may at any time
designate additional paying agents or rescind the designation of
any paying agents, except that
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if debt securities of a series are issuable in registered form,
the Operating Partnership will be required to maintain at least
one paying agent in each place of payment for such
series, and
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if debt securities of a series are issuable in bearer form, the
Operating Partnership will be required to maintain at least one
paying agent in a place of payment outside the United States
where debt securities of such series and any coupons
appertaining thereto may be presented and surrendered for
payment.
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Merger,
Consolidation or Sale of Assets
The indenture provides that the Operating Partnership may,
without the consent of the holders of any outstanding debt
securities, consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any
other entity, provided that
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either the Operating Partnership shall be the continuing entity,
or the successor entity, if other than the Operating
Partnership, formed by or resulting from any such consolidation
or merger or which shall have received the transfer of such
assets, shall be organized under the laws of any domestic
jurisdiction and shall expressly assume the Operating
Partnerships obligations to pay principal of and premium
or make-whole amount, if any, and interest on all of the debt
securities and the due and punctual performance and observance
of all of the covenants and conditions contained in the
indenture;
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immediately after giving effect to such transaction and treating
any indebtedness that becomes an obligation of the Operating
Partnership or any subsidiary as a result thereof as having been
incurred by the Operating Partnership or such subsidiary at the
time of such transaction, no event of default under the
indenture, and no event which, after notice or the lapse of
time, or both, would become an event of default, shall have
occurred and be continuing; and
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an officers certificate and legal opinion covering those
conditions shall be delivered to each trustee.
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7
Certain
Covenants
The applicable prospectus supplement will describe any material
covenants in respect of a series of debt securities that are not
described in this prospectus. Unless otherwise indicated in the
applicable prospectus supplement, the debt securities will
include the following covenants of the Operating Partnership:
Existence. Except as permitted under
Merger, Consolidation or Sale of Assets,
the indenture requires the Operating Partnership to do or cause
to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises;
provided, however, that the Operating Partnership
shall not be required to preserve any right or franchise if it
determines that its preservation is no longer desirable in the
conduct of its business.
Maintenance of properties. The indenture
requires the Operating Partnership to cause all of its material
properties used or useful in the conduct of its business or the
business of any subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all
necessary equipment and to cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Operating Partnership may
be necessary so that the business carried on may be properly and
advantageously conducted at all times; provided,
however, that the Operating Partnership and its
subsidiaries shall not be prevented from selling or otherwise
disposing of their properties for value in the ordinary course
of business.
Insurance. The indenture requires the
Operating Partnership to cause each of its and its
subsidiaries insurable properties to be insured against
loss or damage in an amount at least equal to their then full
insurable value with insurers of recognized responsibility. If
described in the applicable prospectus supplement, such insurer
will be required to have a specified rating from a recognized
insurance rating service.
Payment of taxes and other claims. The
indenture requires the Operating Partnership to pay or discharge
or cause to be paid or discharged, before the same shall become
delinquent,
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all taxes, assessments and governmental charges levied or
imposed upon it or any subsidiary or upon the income, profits or
property of the Operating Partnership or any subsidiary; and
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all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the
Operating Partnership or any subsidiary;
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provided, however, that the Operating Partnership
shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good
faith.
Events of
Default, Notice and Waiver
Unless otherwise provided in the applicable prospectus
supplement, the indenture provides that the following events are
events of default with respect to any series of debt
securities issued thereunder:
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(1)
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default in the payment of any interest on any debt security of
such series, when such interest becomes due and payable, that
continues for a period of 30 days;
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(2)
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default in the payment of the principal of, or premium or
make-whole amount, if any, on, any debt security of such series
when due and payable;
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(3)
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default in making any sinking fund payment as required for any
debt security of such series;
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(4)
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default in the performance, or breach, of any other covenant or
warranty of the Operating Partnership in the indenture with
respect to the debt securities of such series and continuance of
such default or breach for a period of 60 days after
written notice as provided in the indenture;
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(5)
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default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by
the Operating Partnership, or by any subsidiary the repayment of
which the Operating Partnership has guaranteed or for which the
Operating Partnership is directly
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responsible or liable as obligor or guarantor, having an
aggregate principal amount outstanding of at least $10,000,000,
whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of
10 days after written notice to the Operating Partnership
as provided in the indenture;
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(6)
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certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of the
Operating Partnership or any significant subsidiary; and
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(7)
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any other event of default provided with respect to a particular
series of debt securities.
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The term significant subsidiary has the meaning
ascribed to that term in
Regulation S-X
promulgated under the Securities Act.
If an event of default under the indenture with respect to debt
securities of any series at the time outstanding occurs and is
continuing, then in every such case the applicable trustee or
the holders of not less than 25% in principal amount of the debt
securities of that series will have the right to declare the
principal amount of, or, if the debt securities of that series
are original issue discount securities or indexed securities,
such portion of the principal amount as may be specified in the
terms thereof, and premium or make-whole amount, if any, on, all
the debt securities of that series to be due and payable
immediately by written notice thereof to the Operating
Partnership, and to the applicable trustee if given by the
holders; provided that in the case of an event of default
described under the sixth clause of the preceding paragraph,
acceleration is automatic. However, at any time after such a
declaration of acceleration with respect to debt securities of
the series has been made, but before a judgment or decree for
payment of the money due has been obtained by the applicable
trustee, the holders of not less than a majority in principal
amount of outstanding debt securities of the series may rescind
and annul such declaration and its consequences if
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the Operating Partnership shall have deposited with the
applicable trustee all required payments of the principal of,
and premium or make-whole amount, if any, and interest on the
debt securities of the series, plus certain fees, expenses,
disbursements and advances of the applicable trustee, and
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all events of default, other than the non-payment of accelerated
principal of, or a specified portion thereof, and the premium or
make-whole amount, if any, on, debt securities of the series
have been cured or waived as provided in the indenture.
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The indenture also provides that the holders of not less than a
majority in principal amount of the outstanding debt securities
of any series may waive any past default with respect to such
series and its consequences, except a default
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in the payment of the principal of, or premium or make-whole
amount, if any, or interest on, any debt security of the
series, or
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in respect of a covenant or provision contained in the indenture
that cannot be modified or amended without the consent of the
holder of each outstanding debt security affected thereby.
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The indenture requires each trustee to give notice to the
holders of debt securities within 90 days of a default
under the indenture unless such default shall have been cured or
waived; provided, however, that the trustee may
withhold notice to the holders of any series of debt securities
of any default with respect to the series, except a default in
the payment of the principal of, or premium or make-whole
amount, if any, or interest on, any debt security of the series
or in the payment of any sinking fund installment in respect of
any debt security of, the series if specified responsible
officers of the trustee determine in good faith that such
withholding is in the interest of such holders.
The indenture provides that no holders of debt securities of any
series may institute any proceedings, judicial or otherwise,
with respect to the indenture or for any remedy thereunder,
except in the case of failure of the applicable trustee, for
60 days, to act after it has received a written request to
institute proceedings in
9
respect of an event of default from the holders of not less than
25% in principal amount of the outstanding debt securities of
the series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however,
any holder of debt securities from instituting suit for the
enforcement of payment of the principal of, and premium or
make-whole amount, if any, and interest on, the debt securities
at their respective due dates or redemption dates.
The indenture provides that, subject to provisions in the
indenture relating to its duties in case of default, a trustee
will be under no obligation to exercise any of its rights or
powers under the indenture at the request or direction of any
holders of any series of debt securities then outstanding under
the indenture, unless such holders shall have offered to the
trustee thereunder reasonable security or indemnity. The holders
of not less than a majority in principal amount of the
outstanding debt securities of any series, or of all debt
securities then outstanding under the indenture, as the case may
be, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the
applicable trustee, or of exercising any trust or power
conferred upon such trustee. However, a trustee may refuse to
follow any direction which is in conflict with any law or the
indenture, which may involve the trustee in personal liability
or which may be unduly prejudicial to the holders of debt
securities of such series not joining therein.
Within 120 days after the close of each fiscal year, the
Operating Partnership will be required to deliver to each
trustee a certificate, signed by one of several specified
officers of the Company, stating whether or not such officer has
knowledge of any default under the indenture and, if so,
specifying each default and the nature and status thereof.
Modification
of the Indenture
Modifications and amendments of the indenture are permitted to
be made only with the consent of the holders of not less than a
majority in principal amount of all outstanding debt securities
issued under the indenture affected by such modification or
amendment. However, no modification or amendment may,
without the consent of the holder of each such debt security
affected thereby,
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change the stated maturity of the principal of, or any
installment of interest, or premium or make-whole amount, if
any, on, any debt security;
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reduce the principal amount of, or the rate or amount of
interest on, or any premium or make-whole amount payable on
redemption of, any such debt security, or reduce the amount of
principal of an original issue discount security that would be
due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect
any right of repayment of the holder of any debt security;
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change the place of payment, or the coin or currency, for
payment of principal of or premium or make-whole amount, if any,
or interest on any debt security;
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impair the right to institute suit for the enforcement of any
payment on or with respect to any debt security;
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reduce the above-stated percentage of outstanding debt
securities of any series necessary to modify or amend the
indenture, to waive compliance with certain provisions thereof
or certain defaults and consequences thereunder or to reduce the
quorum or voting requirements set forth in the indenture; or
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modify any of the foregoing provisions or any of the provisions
relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect
such action or to provide that certain other provisions may not
be modified or waived without the consent of the holder of the
debt security.
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The holders of a majority in aggregate principal amount of the
outstanding debt securities of each series may, on behalf of all
holders of debt securities of that series, waive, insofar as
that series is concerned, compliance by the Operating
Partnership with certain restrictive covenants of the indenture.
10
Modifications and amendments of the indenture are permitted to
be made by the Operating Partnership and the respective trustee
thereunder without the consent of any holder of debt securities
for any of the following purposes:
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to evidence the succession of another person to the Operating
Partnership as obligor under the indenture;
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to add to the covenants of the Operating Partnership for the
benefit of the holders of all or any series of debt securities
or to surrender any right or power conferred upon the Operating
Partnership in the indenture;
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to add events of default for the benefit of the holders of all
or any series of debt securities;
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to add or change any provisions of the indenture to facilitate
the issuance of, or to liberalize certain terms of, debt
securities in bearer form, or to permit or facilitate the
issuance of debt securities in uncertificated form, provided
that such action shall not adversely affect the interests of the
holders of the debt securities of any series in any material
respect;
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to change or eliminate any provisions of the indenture, provided
that any such change or elimination shall become effective only
when there are no debt securities outstanding of any series
created prior thereto that are entitled to the benefit of such
provision;
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to secure the debt securities;
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to establish the form or terms of debt securities of any series;
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to provide for the acceptance of appointment by a successor
trustee or facilitate the administration of the trusts under the
indenture by more than one trustee;
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to cure any ambiguity, defect or inconsistency in the indenture,
provided that such action shall not adversely affect the
interests of holders of debt securities of any series issued
under the indenture in any material respect; or
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to supplement any of the provisions of the indenture to the
extent necessary to permit or facilitate defeasance and
discharge of any series of the debt securities, provided that
such action shall not adversely affect the interests of the
holders of the outstanding debt securities of any series in any
material respect.
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The indenture provides that in determining whether the holders
of the requisite principal amount of outstanding debt securities
of a series have given any request, demand, authorization,
direction, notice, consent or waiver thereunder or whether a
quorum is present at a meeting of holders of debt securities,
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the principal amount of an original issue discount security that
shall be deemed to be outstanding shall be the amount of the
principal thereof that would be due and payable as of the date
of such determination upon declaration of acceleration of the
maturity thereof,
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the principal amount of any debt security denominated in a
foreign currency that shall be deemed outstanding shall be the
U.S. dollar equivalent, determined on the issue date of the
debt security, of the principal amount of the debt security, or,
in the case of an original issue discount security, the
U.S. dollar equivalent on the issue date of the debt
security of the amount determined as provided in the
subparagraph immediately above,
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the principal amount of an indexed security that shall be deemed
outstanding shall be the principal face amount of such indexed
security at original issuance, unless otherwise provided with
respect to such indexed security pursuant to the
indenture, and
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debt securities owned by the Operating Partnership or any other
obligor upon the debt securities or any affiliate of the
Operating Partnership or of such other obligor shall be
disregarded.
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The indenture contains provisions for convening meetings of the
holders of debt securities of a series. A meeting will be
permitted to be called at any time by the applicable trustee,
and also, upon request,
11
by the Operating Partnership or the holders of at least 25% in
principal amount of the outstanding debt securities of the
series, in any case upon notice given as provided in the
indenture. Except for any consent that must be given by the
holder of each debt security affected by certain modifications
and amendments of the indenture, any resolution presented at a
meeting or adjourned meeting duly reconvened at which a quorum
is present may be adopted by the affirmative vote of the holders
of a majority in principal amount of the outstanding debt
securities of that series. However, except as referred to above,
any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the holders of a
specified percentage, which is less than a majority, in
principal amount of the outstanding debt securities of a series
may be adopted at a meeting or adjourned meeting or adjourned
meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in
principal amount of the outstanding debt securities of that
series. Any resolution passed or decision taken at any meeting
of holders of debt securities of any series duly held in
accordance with the indenture will be binding on all holders of
debt securities of that series. The quorum at any meeting called
to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount
of the outstanding debt securities of a series. However, if any
action is to be taken at the meeting with respect to a consent
or waiver that may be given by the holders of not less than a
specified percentage in principal amount of the outstanding debt
securities of a series, the persons holding or representing such
specified percentage in principal amount of the outstanding debt
securities of the series will constitute a quorum.
Notwithstanding the foregoing provisions, the indenture provides
that if any action is to be taken at a meeting of holders of
debt securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver and
other action that the indenture expressly provides may be made,
given or taken by the holders of a specified percentage in
principal amount of all outstanding debt securities affected
thereby, or of the holders of such series and one or more
additional series:
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there shall be no minimum quorum requirement for such
meeting; and
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the principal amount of the outstanding debt securities of the
series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under the
indenture.
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Discharge,
Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus
supplement, the Operating Partnership will be permitted, at its
option, to discharge certain obligations to holders of any
series of debt securities issued under the indenture that have
not already been delivered to the applicable trustee for
cancellation and that either have become due and payable or will
become due and payable within one year, or scheduled for
redemption within one year, by irrevocably depositing with the
applicable trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or
currencies in which the debt securities are payable in an amount
sufficient to pay the entire indebtedness on the debt securities
in respect of principal, and premium or make-whole amount, if
any, and interest to the date of such deposit, if the debt
securities have become due and payable, or to the stated
maturity or redemption date, as the case may be.
The indenture provides that, unless otherwise provided in the
applicable prospectus supplement, the Operating Partnership may
elect either
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to defease and be discharged from any and all obligations with
respect to the debt securities, except for the obligation to pay
additional amounts, if any, upon the occurrence of certain
events of tax, assessment or governmental charge with respect to
payments on the debt securities and the obligations to register
the transfer or exchange of the debt securities, to replace
temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency in respect of the
debt securities, and to hold moneys for payment in trust, or
defeasance, or
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12
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to be released from certain obligations with respect to the debt
securities under the indenture, including the restrictions
described under Certain Covenants or, if
provided in the applicable prospectus supplement, its
obligations with respect to any other covenant, and any omission
to comply with such obligations shall not constitute an event of
default with respect to the debt securities, or covenant
defeasance,
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in either case upon the irrevocable deposit by the Operating
Partnership with the applicable trustee, in trust, of an amount,
in such currency or currencies, currency unit or units or
composite currency or currencies in which the debt securities
are payable at stated maturity, or government obligations as
defined below, or both, applicable to the debt securities, which
through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount
sufficient to pay the principal of and premium or make-whole
amount, if any, and interest on the debt securities, and any
mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor.
Such a trust will only be permitted to be established if, among
other things, the Operating Partnership has delivered to the
applicable trustee an opinion of counsel, as specified in the
indenture, to the effect that the holders of the debt securities
will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant
defeasance had not occurred, and the opinion of counsel, in the
case of defeasance, will be required to refer to and be based
upon a ruling received from the IRS or a change in applicable
U.S. federal income tax law occurring after the date of the
indenture. In the event of such defeasance, the holders of the
debt securities would thereafter be able to look only to such
trust fund for payment of principal, and premium or make-whole
amount, if any, and interest.
Government obligations means securities that are
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direct obligations of the United States or the government which
issued the foreign currency in which the debt securities of a
particular series are payable, for the payment of which its full
faith and credit is pledged, or
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obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States or such
government which issued the foreign currency in which the debt
securities of the series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States or such other government,
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which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as
custodian with respect to any such government obligation or a
specific payment of interest on or principal of any such
government obligation held by such custodian for the account of
the holder of a depository receipt, provided that, except
as required by law, the custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the government obligation or the specific payment of
interest on or principal of the government obligation evidenced
by such depository receipt.
Unless otherwise provided in the applicable prospectus
supplement, if after the Operating Partnership has deposited
funds and/or
government obligations to effect defeasance or covenant
defeasance with respect to debt securities of any series,
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the holder of a debt security of the series is entitled to, and
does, elect pursuant to the indenture or the terms of the debt
security to receive payment in a currency, currency unit or
composite currency other than that in which such deposit has
been made in respect of the debt security, or
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a conversion event, as defined below, occurs in respect of the
currency, currency unit or composite currency in which such
deposit has been made,
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the indebtedness represented by the debt security will be deemed
to have been, and will be, fully discharged and satisfied
through the payment of the principal of and premium or
make-whole amount, if any, and interest on the debt security as
they become due out of the proceeds yielded by converting the
amount so deposited in
13
respect of the debt security into the currency, currency unit or
composite currency in which the debt security becomes payable as
a result of such election or such cessation of usage based on
the applicable market exchange rate.
Conversion event means the cessation of use of
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a currency, currency unit or composite currency both by the
government of the country which issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community,
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the Euro both within the European Monetary System and for the
settlement of transactions by public institutions of or within
the European Communities or
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any currency unit or composite currency other than the Euro for
the purposes for which it was established.
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Unless otherwise provided in the applicable prospectus
supplement, all payments of principal of and premium or
make-whole amount, if any, and interest on any debt security
that is payable in a foreign currency that ceases to be used by
its government of issuance shall be made in U.S. dollars.
In the event the Operating Partnership effects covenant
defeasance with respect to any debt securities and the debt
securities are declared due and payable because of the
occurrence of any event of default, other than the event of
default described in clause (4) under
Events of Default, Notice and Waiver
with respect to specified sections of the indenture, which
sections would no longer be applicable to the debt securities,
or described in clause (7) under Events
of Default, Notice and Waiver with respect to any other
covenant as to which there has been covenant defeasance, the
amount in such currency, currency unit or composite currency in
which the debt securities are payable, and government
obligations on deposit with the applicable trustee, will be
sufficient to pay amounts due on the debt securities at the time
of their stated maturity but may not be sufficient to pay
amounts due on the debt securities at the time of the
acceleration resulting from such event of default. However, the
Operating Partnership would remain liable to make payment of
those amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant
defeasance, including any modifications to the provisions
described above, with respect to the debt securities of or
within a particular series.
No
Conversion Rights
The debt securities will not be convertible into or exchangeable
for any capital stock of the Company or equity interest in the
Operating Partnership.
Global
Securities
The debt securities of a series may be issued in whole or in
part in book-entry form consisting of one or more global
securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement
relating to the series. Global securities may be issued in
either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement
with respect to a series of debt securities will be described in
the applicable prospectus supplement relating to the series.
The
Trustee
U.S. Bank National Trust is the trustee under the
indenture. From time to time, we have and may in the future
enter into other transactions with the trustee.
14
Payment
and Paying Agents
Unless otherwise provided in the applicable prospectus
supplement, the principal of, and applicable premium or
make-whole amount, if any, and interest on, any series of debt
securities will be payable at the corporate trust office of the
trustee, the address of which will be stated in the applicable
prospectus supplement. However, at the option of the Operating
Partnership, payment of interest may be made by check mailed to
the address of the person entitled thereto as it appears in the
applicable register for the debt securities or by wire transfer
of funds to such person at an account maintained within the
United States.
All moneys paid by the Operating Partnership to a paying agent
or a trustee for the payment of the principal of or any premium,
make-whole amount or interest on any debt security which remain
unclaimed at the end of two years after such principal, premium,
make-whole amount or interest has become due and payable will be
repaid to the Operating Partnership, and the holder of the debt
security thereafter may look only to the Operating Partnership
for payment thereof.
15
DESCRIPTION
OF PREFERRED STOCK
The following is a summary of the material terms of our
preferred stock. You should also read our articles of
incorporation and bylaws, which are incorporated by reference to
the registration statement of which this prospectus is a part.
All material terms of the preferred stock, except those
disclosed in the applicable prospectus supplement, are described
in this prospectus.
General
Under our articles of incorporation, the Company has authority
to issue 10 million shares of its preferred stock, par
value $.01 per share. The preferred stock may be issued
from time to time, in one or more series, as authorized by the
Companys board of directors. Prior to issuance of shares
of each series, the Companys board of directors is
required by Maryland General Corporate Law (the
MGCL) and our articles of incorporation to fix for
each series, subject to the provisions of the articles of
incorporation regarding excess stock, par value $.01 per
share, the terms, preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or
other distributions, qualifications and terms or conditions of
redemption of those shares as may be permitted by Maryland law.
These rights, powers, restrictions and limitations could include
the right to receive specified dividend payments and payments on
liquidation prior to any payments to holders of common stock or
other capital stock of the Company ranking junior to the
preferred stock. The outstanding shares of preferred stock are,
and additional shares of preferred stock will be, when issued,
fully paid and nonassessable and will have no preemptive rights.
The Companys board of directors could authorize the
issuance of shares of preferred stock with terms and conditions
that could have the effect of discouraging a takeover or other
transaction that holders of common stock might believe to be in
their best interests or in which holders of some, or a majority,
of the shares of common stock might receive a premium for their
shares over the then market price of those shares of common
stock.
Outstanding
Preferred Stock
At December 31, 2006 the Company had outstanding
20,000 shares of Series C preferred stock,
500 shares of Series F preferred stock,
250 shares of Series G preferred stock,
200 shares of Series K preferred stock, and
600 shares of Series J preferred stock constituting
all of the Companys outstanding preferred stock. The terms
of the Series C, Series F, Series G,
Series J, and Series K preferred stock provide for a
preference as to the payment of dividends over shares of common
stock and any other capital stock ranking junior to the
Series C, Series F, Series G, Series J, and
Series K preferred stock. The terms of the Series C,
Series J and Series K preferred stock provide for
cumulative quarterly dividends at the rate of $215.625,
$18,125.00 and $18,125.00, respectively, per share per year.
Through March 31, 2009 and March 31, 2014,
respectively, the terms of the Series F and Series G
preferred stock provide for cumulative semi-annual dividends at
the rate of $6,236.00 and $7,236.00, respectively, per share per
year. After March 31, 2009 and March 31, 2014,
respectively, the terms of the Series F and Series G
preferred stock provide for the reset of dividend rates, at the
Companys option, on a fixed or floating rate basis for
fixed or floating rate periods. Any such fixed rates and periods
will be determined through a remarketing procedure, with
cumulative dividends payable semi-annually. Any such floating
rates during floating rate periods will equal 2.375% (the
initial credit spread), plus the greater of (i) the
3-month
LIBOR Rate, (ii) the
10-year
Treasury CMT Rate and (iii) the
30-year
Treasury CMT Rate (the adjustable rate), reset quarterly, with
cumulative dividends payable quarterly. On and after
June 6, 2007, March 31, 2009, March 31, 2014,
August 15, 2011 and January 15, 2011, respectively,
the Series C, Series F, Series G, Series J,
and Series K preferred stock are subject to redemption, in
each case in whole or in part, at the option of the Company, at
a cash redemption price of $2,500.00 per share,
$100,000.00 per share, $100,000.00 per share,
$250,000.00 per share and $250,000.00 per share,
respectively, plus accrued and unpaid dividends. The
Series C, Series F, Series G, Series J, and
Series K preferred stock rank on a parity as to payment of
dividends and amounts upon liquidation.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of the
Series C, Series F, Series G, Series J, and
Series K preferred stock will be entitled to receive out of
the Companys assets available for distribution to
stockholders, before any distribution of assets is made to
holders of common stock or any other shares of capital stock
ranking, as to distributions, junior to the
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Series C, Series F, Series G, Series J, and
Series K preferred stock, liquidating distributions in the
amount of $2,500.00 per share, $100,000.00 per share,
$100,000.00 per share, $250,000.00 per share and
$250,000.00 per share, respectively, plus all accrued and unpaid
dividends.
Except as expressly required by law and in some other limited
circumstances, the holders of the preferred stock are not
entitled to vote. The consent of holders of not less than
two-thirds of the outstanding preferred stock and any other
series of preferred stock ranking on a parity with the
outstanding preferred stock, voting as a single class, is
required to authorize another class of shares senior to the
outstanding preferred stock. The affirmative vote or consent of
the holders of not less than two-thirds of the outstanding
shares of each series of preferred stock is required to amend or
repeal any provision of, or add any provision to, our articles
of incorporation, including the articles supplementary relating
to that series of preferred stock, if that action would
materially and adversely alter or change the rights, preferences
or privileges of that series of preferred stock.
Future
Series of Preferred Stock
The following is a description of the general terms and
provisions of the preferred stock to which any prospectus
supplement may relate. The statements below describing the
preferred stock are in all respects subject to and qualified in
their entirety by reference to the applicable provisions of our
articles of incorporation and bylaws and any applicable
amendment to our articles of incorporation designating terms of
a series of preferred stock.
Any prospectus supplement relating to a future series of the
preferred stock will contain specific terms, including:
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(1)
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The title and stated value of the preferred stock;
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(2)
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The number of shares of the preferred stock offered, the
liquidation preference per share and the offering price of the
preferred stock;
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(3)
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The dividend rate(s), period(s)
and/or
payment date(s) or method(s) of calculation applicable to the
preferred stock;
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(4)
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The date from which dividends on the preferred stock shall
accumulate, if applicable;
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(5)
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The procedures for any auction and remarketing, if any, for the
preferred stock;
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(6)
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The provision for a sinking fund, if any, for the preferred
stock;
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(7)
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The provision for redemption, if applicable, of the preferred
stock;
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(8)
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Any listing of the preferred stock on any securities exchange;
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(9)
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The terms and conditions, if applicable, upon which the
preferred stock will be convertible into common stock, including
the conversion price or manner of calculation of the conversion
price;
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(10)
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Any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock;
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(11)
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A discussion of federal income tax considerations applicable to
the preferred stock;
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(12)
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The relative ranking and preference of the preferred stock as to
dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company;
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(13)
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Any limitations on issuance of any series of preferred stock
ranking senior to or on a parity with the series of preferred
stock as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and
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(14)
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Any limitations on direct or beneficial ownership and
restrictions on transfer, in each case as may be appropriate to
preserve the status of the Company as a REIT.
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Unless otherwise specified in the prospectus supplement, the
preferred stock will, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Company, rank:
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senior to all classes or series of common stock, and to all
equity securities ranking junior to the preferred stock with
respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company;
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on a parity with all equity securities issued by the Company the
terms of which specifically provide that those equity securities
rank on a parity with the preferred stock with respect to
dividend rights or rights upon liquidation, dissolution or
winding up of the Company; and
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junior to all equity securities issued by the Company the terms
of which specifically provide that those equity securities rank
senior to the preferred stock with respect to dividend rights or
rights upon liquidation, dissolution or winding up of the
Company.
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The term equity securities does not include
convertible debt securities.
Dividends
Holders of the preferred stock of each series will be entitled
to receive, when, as and if declared by the Companys board
of directors, out of the Companys assets legally available
for payment, cash dividends at rates and on dates as will be set
forth in the applicable prospectus supplement. Each dividend
shall be payable to holders of record as they appear on the
share transfer books of the Company on the record dates as shall
be fixed by the Companys board of directors.
Dividends on any series of the preferred stock may be cumulative
or non-cumulative, as provided in the applicable prospectus
supplement. Dividends, if cumulative, will be cumulative from
and after the date set forth in the applicable prospectus
supplement. If the Companys board of directors fails to
declare a dividend payable on a dividend payment date on any
series of the preferred stock for which dividends are
non-cumulative, then the holders of that series of the preferred
stock will have no right to receive a dividend in respect of the
dividend period ending on that dividend payment date, and the
Company will have no obligation to pay the dividend accrued for
that period, whether or not dividends on that series are
declared payable on any future dividend payment date.
If preferred stock of any series is outstanding, no dividends
will be declared or paid or set apart for payment on any capital
stock of the Company of any other series ranking, as to
dividends, on a parity with or junior to the preferred stock of
that series for any period unless:
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if that series of preferred stock has a cumulative dividend,
full cumulative dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the
payment is set apart for that payment on the preferred stock of
that series for all past dividend periods and the then current
dividend period; or
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if that series of preferred stock does not have a cumulative
dividend, full dividends for the then current dividend period
have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof is set apart for
that payment on the preferred stock of that series.
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When dividends are not paid in full, or a sum sufficient for
full payment is not set apart, upon preferred stock of any
series and the shares of any other series of preferred stock
ranking on a parity as to dividends with the preferred stock of
that series, all dividends declared upon preferred stock of that
series and any other series of preferred stock ranking on a
parity as to dividends with that preferred stock will be
declared pro rata so that the amount of dividends
declared per share of preferred stock of that series and the
other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the
preferred stock of that series, which shall not include any
accumulation in respect of unpaid dividends for prior dividend
periods if that preferred stock does not have a cumulative
dividend, and the other series of preferred stock bear to each
other. No interest, or sum of money in lieu of interest, shall
be payable in respect of any dividend payment or payments on
preferred stock of that series that may be in arrears.
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Except as provided in the immediately preceding paragraph,
unless:
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if a series of preferred stock has a cumulative dividend, full
cumulative dividends on the preferred stock of that series have
been or contemporaneously are declared and paid or declared and
a sum sufficient for that payment is set apart for payment for
all past dividend periods and the then current dividend
period, and
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if a series of preferred stock does not have a cumulative
dividend, full dividends on the preferred stock of that series
have been or contemporaneously are declared and paid or declared
and a sum sufficient for that payment is set apart for payment
for the then current dividend period,
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no dividends, other than in shares of common stock or other
shares of capital stock ranking junior to the preferred stock of
that series as to dividends and upon liquidation, shall be
declared or paid or set aside for payment nor shall any other
distribution be declared or made upon the common stock, or any
other capital stock of the Company ranking junior to or on a
parity with the preferred stock of that series as to dividends
or upon liquidation, nor shall any shares of common stock, or
any other shares of capital stock of the Company ranking junior
to or on a parity with the preferred stock of that series as to
dividends or upon liquidation, be redeemed, purchased or
otherwise acquired for any consideration, or any moneys be paid
to or made available for a sinking fund for the redemption of
any shares, by the Company, except by conversion into or
exchange for other capital stock of the Company ranking junior
to the preferred stock of that series as to dividends and upon
liquidation.
Any dividend payment made on shares of a series of preferred
stock shall first be credited against the earliest accrued but
unpaid dividends due with respect to shares of that series which
remain payable.
Redemption
If provided in the applicable prospectus supplement, the
preferred stock will be subject to mandatory redemption or
redemption at the option of the Company, as a whole or in part,
in each case upon the terms, at the times and at the redemption
prices set forth in the applicable prospectus supplement.
The prospectus supplement relating to a series of preferred
stock that is subject to mandatory redemption will specify the
number of shares of the preferred stock that will be redeemed by
the Company in each year commencing after a date to be
specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid
dividends, which will not, if that preferred stock does not have
a cumulative dividend, include any accumulation in respect of
unpaid dividends for prior dividend periods, to the date of
redemption. The redemption price may be payable in cash or other
property, as specified in the applicable prospectus supplement.
If the redemption price for preferred stock of any series is
payable only from the net proceeds of the issuance of shares of
capital stock of the Company, the terms of that preferred stock
may provide that, if no shares of capital stock shall have been
issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then
due, the preferred stock will automatically and mandatorily be
converted into the applicable shares of capital stock of the
Company pursuant to conversion provisions specified in the
applicable prospectus supplement.
However, unless
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if a series of preferred stock has a cumulative dividend, full
cumulative dividends on all shares of that series of preferred
stock will have been or contemporaneously are declared and paid
or declared and a sum sufficient for that payment set apart for
payment for all past dividend periods and the then current
dividend period and
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if a series of preferred stock does not have a cumulative
dividend, full dividends on all shares of the preferred stock of
that series have been or contemporaneously are declared and paid
or declared and a sum sufficient for that payment set apart for
payment for the then current dividend period,
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no shares of the series of preferred stock will be redeemed
unless all outstanding shares of preferred stock of that series
are simultaneously redeemed. However, the preceding shall not
prevent the purchase or acquisition
19
of preferred stock of that series to preserve the REIT
qualification of the Company or pursuant to a purchase or
exchange offer made on the same terms to holders of all
outstanding shares of preferred stock of that series.
In addition, unless
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if the series of preferred stock has a cumulative dividend, full
cumulative dividends on all outstanding shares of that series of
preferred stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for that payment set apart
for payment for all past dividend periods and the then current
dividend period and
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if the series of preferred stock does not have a cumulative
dividend, full dividends on the preferred stock of that series
have been or contemporaneously are declared and paid or declared
and a sum sufficient for that payment set apart for payment for
the then current dividend period,
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the Company will not purchase or otherwise acquire directly or
indirectly any shares of preferred stock of that series, except
by conversion into or exchange for capital shares of the Company
ranking junior to the preferred stock of that series as to
dividends and upon liquidation. However, the preceding shall not
prevent the purchase or acquisition of shares of preferred stock
of that series to preserve the REIT qualification of the Company
or pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of preferred stock of
that series.
If fewer than all of the outstanding shares of preferred stock
of any series are to be redeemed, the number of shares to be
redeemed will be determined by the Company. Those shares may be
redeemed ratably from the holders of record of those shares in
proportion to the number of those shares held or for which
redemption is requested by that holder, with adjustments to
avoid redemption of fractional shares, or by any other equitable
manner determined by the Company.
Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each
holder of record of preferred stock of any series to be redeemed
at the address shown on the stock transfer books of the Company.
Each notice shall state:
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the redemption date;
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the number of shares and series of the preferred stock to be
redeemed;
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the redemption price;
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the place or places where certificates for the preferred stock
are to be surrendered for payment of the redemption price;
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that dividends on the shares to be redeemed will cease to accrue
on the redemption date; and
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the date upon which the holders conversion rights, if any,
as to those shares shall terminate.
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If fewer than all the shares of preferred stock of any series
are to be redeemed, the notice mailed to each holder of
preferred stock shall also specify the number of shares of
preferred stock to be redeemed from each holder. If notice of
redemption of any preferred stock has been given and if the
funds necessary for the redemption have been set aside by the
Company in trust for the benefit of the holders of any preferred
stock called for redemption, then from and after the redemption
date dividends will cease to accrue on the preferred stock
called for redemption, and all rights of the holders of those
shares will terminate, except the right to receive the
redemption price.
Liquidation
Preference
Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, before any
distribution or payment shall be made to the holders of any
common stock or any other class or series of capital stock of
the Company ranking junior to the preferred stock in the
distribution of assets upon any liquidation, dissolution or
winding up of the Company, the holders of each series of
preferred stock shall be entitled to receive out of assets of
the Company legally available for distribution to stockholders
liquidating distributions in the amount of the liquidation
preference per share, if any, set forth in the applicable
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prospectus supplement, plus an amount equal to all dividends
accrued and unpaid thereon, which shall not include any
accumulation in respect of unpaid noncumulative dividends for
prior dividend periods. After payment of the full amount of the
liquidating distributions to which they are entitled, the
holders of preferred stock will have no right or claim to any of
the Companys remaining assets. In the event that, upon any
voluntary or involuntary liquidation, dissolution or winding up,
the Companys available assets are insufficient to pay the
amount of the liquidating distributions on all outstanding
shares of preferred stock and the corresponding amounts payable
on all shares of other classes or series of capital stock of the
Company ranking on a parity with the preferred stock in the
distribution of assets, then the holders of the preferred stock
and those other classes or series of capital stock will share
ratably in the distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be
respectively entitled.
If liquidating distributions have been made in full to all
holders of preferred stock, the Companys remaining assets
will be distributed among the holders of any other classes or
series of capital stock ranking junior to the preferred stock
upon liquidation, dissolution or winding up, according to their
respective rights and preferences and in each case according to
their respective number of shares. For these purposes, the
consolidation or merger of the Company with or into any other
corporation, trust or entity, or the sale, lease or conveyance
of all or substantially all of the property or business of the
Company, will not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
Voting
Rights
Holders of the preferred stock will not have any voting rights,
except as set forth below or as otherwise from time to time
required by law or as indicated in the applicable prospectus
supplement.
Unless provided otherwise for any series of preferred stock, so
long as any shares of preferred stock of a series remain
outstanding, the Company will not, without the affirmative vote
or consent of the holders of at least two-thirds of the shares
of that series of preferred stock outstanding at the time, given
in person or by proxy, either in writing or at a meeting, each
series voting separately as a class:
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authorize or create, or increase the authorized or issued amount
of, any class or series of capital stock ranking prior to that
series of preferred stock with respect to payment of dividends
or the distribution of assets upon liquidation, dissolution or
winding up or reclassify any authorized capital stock of the
Company into those shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right
to purchase any of those shares; or
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amend, alter or repeal the provisions of our articles of
incorporation or the designating amendment for that series of
preferred stock, whether by merger, consolidation or otherwise,
so as to materially and adversely affect any right, preference,
privilege or voting power of that series of preferred stock or
the holders of that series of preferred stock.
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However, with respect to the occurrence of any of the events set
forth in the second subparagraph above, so long as the preferred
stock remains outstanding with its terms materially unchanged,
taking into account that upon the occurrence of an event, the
Company may not be the surviving entity, the occurrence of any
such event shall not be deemed to materially and adversely
affect the rights, preferences, privileges or voting power of
holders of preferred stock. Further,
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any increase in the amount of the authorized preferred stock or
the creation or issuance of any other series of preferred stock,
or
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any increase in the amount of authorized shares of that series
or any other series of preferred stock, in each case ranking on
a parity with or junior to the preferred stock of that series
with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up,
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will not be deemed to materially and adversely affect the
rights, preferences, privileges or voting powers.
These voting provisions will not apply if, at or prior to the
time when the act with respect to which that vote would
otherwise be required shall be effected, all outstanding shares
of that series of preferred stock
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shall have been redeemed or called for redemption and sufficient
funds will have been deposited in trust to effect the redemption.
Conversion
Rights
The terms and conditions, if any, upon which any series of
preferred stock is convertible into common stock will be set
forth in the applicable prospectus supplement. The terms will
include:
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the number of shares of common stock into which the shares of
preferred stock are convertible,
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the conversion price (or manner of calculating the conversion
price),
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the conversion period,
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provisions as to whether conversion will be at the option of the
holders of the preferred stock or the Company,
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the events requiring an adjustment of the conversion
price, and
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provisions affecting conversion in the event of the redemption
of that series of preferred stock.
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Restrictions
on Ownership
For us to qualify as a REIT under the Code, not more than 50% in
value of our outstanding capital stock may be owned, directly or
indirectly, by five or fewer individuals, as defined in the Code
to include certain entities, during the last half of a taxable
year. To assist the Company in meeting this requirement, the
Company may take certain actions to limit the beneficial
ownership, directly or indirectly, by individuals of the
Companys outstanding equity securities, including any
preferred stock. Therefore, the designating amendment for each
series of preferred stock may contain provisions restricting the
ownership and transfer of the preferred stock. The applicable
prospectus supplement will specify any additional ownership
limitation relating to a series of preferred stock. See
Restrictions on Transfers of Capital Stock.
Transfer
Agent
The transfer agent and registrar for the preferred stock will be
set forth in the applicable prospectus supplement.
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DESCRIPTION
OF DEPOSITARY SHARES
The Company may, at its option, elect to offer depositary shares
rather than full shares of preferred stock. In the event that
option is exercised, each of the depositary shares will
represent ownership of and entitlement to all rights and
preferences of a fraction of a share of preferred stock of a
specified series, including dividend, voting, redemption and
liquidation rights. The applicable fraction will be specified in
the prospectus supplement. The shares of preferred stock
represented by the depositary shares will be deposited with a
depositary named in the applicable prospectus supplement, under
a deposit agreement among the Company, the depositary and the
holders of the depositary receipts. Certificates evidencing
depositary shares will be delivered to those persons purchasing
depositary shares in the offering. The depositary will be the
transfer agent, registrar and dividend disbursing agent for the
depositary shares. Holders of depositary receipts agree to be
bound by the deposit agreement, which requires holders to take
actions such as filing proof of residence and paying charges.
The summary of terms of the depositary shares contained in this
prospectus does not purport to be complete and is subject to,
and qualified in its entirety by, the provisions of the deposit
agreement, our articles of incorporation and the form of
designating amendment for the applicable series of preferred
stock. All material terms of the depositary shares, except those
disclosed in the applicable prospectus supplement, are described
in this prospectus.
Dividends
The depositary will distribute all cash dividends or other cash
distributions received in respect of the series of preferred
stock represented by the depositary shares to the record holders
of depositary receipts in proportion to the number of depositary
shares owned by those holders on the relevant record date, which
will be the same date as the record date fixed by the Company
for the applicable series of preferred stock. The depositary,
however, will distribute only an amount as can be distributed
without attributing to any depositary share a fraction of one
cent, and any balance not so distributed will be added to and
treated as part of the next sum received by the depositary for
distribution to record holders of depositary receipts then
outstanding.
In the event of a distribution other than in cash, the
depositary will distribute property received by it to the record
holders of depositary receipts so entitled, in proportion, as
nearly as may be practicable, to the number of depositary shares
owned by those holders on the relevant record date, unless the
depositary determines, after consultation with the Company, that
it is not feasible to make the distribution, in which case the
depositary may, with the Companys approval, adopt any
other method for that distribution as it deems equitable and
appropriate, including the sale of the property, at a place or
places and upon terms that it may deem equitable and
appropriate, and distribution of the net proceeds from that sale
to the holders.
No distribution will be made in respect of any depositary share
to the extent that it represents any preferred stock converted
into excess stock.
Liquidation
Preference
In the event of the liquidation, dissolution or winding up of
the affairs of the Company, whether voluntary or involuntary,
the holders of each depositary share will be entitled to the
fraction of the liquidation preference accorded each share of
the applicable series of preferred stock, as set forth in the
prospectus supplement.
Redemption
If the series of preferred stock represented by the applicable
series of depositary shares is redeemable, those depositary
shares will be redeemed from the proceeds received by the
depositary resulting from the redemption, in whole or in part,
of preferred stock held by the depositary. Whenever the Company
redeems any preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number
of depositary shares representing the redeemed preferred stock.
The depositary will mail the notice of redemption to the record
holders of the depositary shares promptly upon receipt of notice
from the
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Company and not less than 30 nor more than 60 days prior to
the date fixed for redemption of the preferred stock and the
depositary shares.
Voting
Promptly upon receipt of notice of any meeting at which the
holders of the series of preferred stock represented by the
applicable series of depositary shares are entitled to vote, the
depositary will mail the information contained in the notice of
meeting to the record holders of the depositary receipts as of
the record date for the meeting. Each record holder of
depositary receipts will be entitled to instruct the depositary
as to the exercise of the voting rights pertaining to the number
of shares of preferred stock represented by the record
holders depositary shares. The depositary will endeavor,
insofar as practicable, to vote the preferred stock represented
by depositary shares in accordance with those instructions, and
the Company will agree to take all action which may be deemed
necessary by the depositary in order to enable the depositary to
do so. The depositary will abstain from voting any of the
preferred stock to the extent that it does not receive specific
instructions from the holders of depositary receipts.
Withdrawal
of Preferred Stock
Upon surrender of depositary receipts at the principal office of
the depositary, upon payment of any unpaid amount due the
depositary, and subject to the terms of the deposit agreement,
the owner of the depositary shares evidenced thereby is entitled
to delivery of the number of whole shares of preferred stock and
all money and other property, if any, represented by the
depositary shares. Partial shares of preferred stock will not be
issued. If the depositary receipts delivered by the holder
evidence a number of depositary shares in excess of the number
of depositary shares representing the number of whole shares of
preferred stock to be withdrawn, the depositary will deliver to
that holder at the same time a new depositary receipt evidencing
the excess number of depositary shares. Holders of preferred
stock that is withdrawn will not thereafter be entitled to
deposit their shares under the deposit agreement or to receive
depositary receipts evidencing their depositary shares.
Amendment
and Termination of Deposit Agreement
The form of depositary receipt evidencing the depositary shares
and any provision of the deposit agreement may at any time and
from time to time be amended by agreement between the Company
and the depositary. However, any amendment which materially and
adversely alters the rights of the holders of depositary shares,
other than any change in fees, will not be effective unless that
amendment has been approved by at least a majority of the
depositary shares then outstanding. No amendment to the deposit
agreement may impair the right, subject to the terms of the
deposit agreement, of any owner of any depositary shares to
surrender the depositary receipt evidencing its depositary
shares with instructions to the depositary to deliver to the
holder the preferred stock and all money and other property, if
any, represented thereby, except in order to comply with
mandatory provisions of applicable law.
The deposit agreement will be permitted to be terminated by the
Company upon not less than 30 days prior written
notice to the applicable depositary if:
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termination is necessary to preserve the Companys
qualification as a REIT, or
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a majority of each series of preferred stock affected by
termination consents to termination,
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whereupon the depositary will be required to deliver or make
available to each holder of depositary receipts, upon surrender
of the depositary receipts held by that holder, the number of
whole or fractional shares of preferred stock as is represented
by the depositary shares evidenced by those depositary receipts
together with any other property held by the depositary with
respect to those depositary receipts.
The Company will agree that if the deposit agreement is
terminated to preserve its qualification as a REIT, then the
Company will use its best efforts to list the preferred stock
issued upon surrender of the related depositary shares on a
national securities exchange.
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In addition, the deposit agreement will automatically terminate
if:
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all outstanding depositary shares thereunder shall have been
redeemed,
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there shall have been a final distribution in respect of the
related preferred stock in connection with any liquidation,
dissolution or winding up of the Company and that distribution
shall have been distributed to the holders of depositary
receipts evidencing the depositary shares representing that
preferred stock or
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each share of the related preferred stock shall have been
converted into stock of the Company not represented by
depositary shares.
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Charges
of Depositary
The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. The Company will pay charges of the
depositary in connection with the initial deposit of the
preferred stock and initial issuance of the depositary shares,
and redemption of the preferred stock and all withdrawals of
preferred stock by owners of depositary shares. Holders of
depositary receipts will pay transfer, income and other taxes
and governmental charges and other charges as are provided in
the deposit agreement to be for their accounts. In certain
circumstances, the depositary may refuse to transfer depositary
shares, may withhold dividends and distributions and sell the
depositary shares evidenced by those depositary receipts if
those charges are not paid.
Miscellaneous
The depositary will forward to the holders of depositary
receipts all reports and communications from the Company that
are delivered to the depositary and that the Company is required
to furnish to the holders of the preferred stock. In addition,
the depositary will make available for inspection by holders of
depositary receipts at the principal office of the depositary,
and at other places as it may from time to time deem advisable,
any reports and communications received from the Company that
are received by the depositary as the holder of preferred stock.
Neither the depositary nor the Company assumes any obligation or
will be subject to any liability under the deposit agreement to
holders of depositary receipts other than for its negligence or
willful misconduct. Neither the depositary nor the Company will
be liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations
under the deposit agreement. The obligations of the Company and
the depositary under the deposit agreement will be limited to
performance in good faith of their duties under the deposit
agreement, and they will not be obligated to prosecute or defend
any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. The
Company and the depositary may rely on written advice of counsel
or accountants, on information provided by holders of the
depositary receipts or other persons believed in good faith to
be competent to give that information and on documents believed
to be genuine and to have been signed or presented by the proper
party or parties.
In the event the depositary receives conflicting claims,
requests or instructions from any holders of depositary
receipts, on the one hand, and the Company, on the other hand,
the depositary shall be entitled to act on those claims,
requests or instructions received from the Company.
Resignation
and Removal of Depositary
The depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at
any time remove the depositary. Any resignation or removal will
take effect upon the appointment of a successor depositary and
its acceptance of that appointment. The successor depositary
must be appointed within 60 days after delivery of the
notice for resignation or removal and must be a bank or trust
company having its principal office in the United States and
having a combined capital and surplus of at least $150,000,000.
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Federal
Income Tax Consequences
Owners of depositary shares will be treated for U.S. Federal
income tax purposes as if they were owners of the preferred
stock represented by depositary shares. Accordingly, those
owners will be entitled to take into account, for Federal income
tax purposes, income and deductions to which they would be
entitled if they were holders of the preferred stock. In
addition,
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no gain or loss will be recognized for U.S. Federal income tax
purposes upon the withdrawal of preferred stock in exchange for
depositary shares,
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the tax basis of each share of preferred stock to an exchanging
owner of depositary shares will, upon exchange, be the same as
the aggregate tax basis of the depositary shares exchanged
therefor and
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the holding period for preferred stock in the hands of an
exchanging owner of depositary shares will include the period
during which that person owned those depositary shares.
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26
DESCRIPTION
OF COMMON STOCK
The following is a summary of the material terms of our common
stock. You should read our articles of incorporation and bylaws,
which are incorporated by reference to the registration
statement of which this prospectus is a part.
General
Under our articles of incorporation, the Company has authority
to issue 100 million shares of its common stock, par value
$.01 per share. Under Maryland law, stockholders generally
are not responsible for the corporations debts or
obligations. At March 20, 2007 we had outstanding
45,378,060 shares of common stock.
Terms
Subject to the preferential rights of any other shares or series
of stock, including preferred stock outstanding from time to
time, and to the provisions of our articles of incorporation
regarding excess stock, common stockholders will be entitled to
receive dividends on shares of common stock if, as and when
authorized and declared by our board of directors out of assets
legally available for that purpose. Subject to the preferential
rights of any other shares or series of stock, including
preferred stock outstanding from time to time, and to the
provisions of our articles of incorporation regarding excess
stock, common stockholders will share ratably in the assets of
the Company legally available for distribution to its
stockholders in the event of its liquidation, dissolution or
winding up after payment of, or adequate provision for, all
known debts and liabilities of the Company. For a discussion of
excess stock, please see Restrictions on Transfer of
Capital Stock.
Subject to the provisions of our articles of incorporation
regarding excess stock, each outstanding share of common stock
entitles the holder to one vote on all matters submitted to a
vote of stockholders, including the election of directors, and,
except as otherwise required by law or except as provided with
respect to any other class or series of stock, common
stockholders will possess the exclusive voting power. There is
no cumulative voting in the election of directors, which means
that the holders of a majority of the outstanding shares of
common stock can elect all of the directors then standing for
election, and the holders of the remaining shares of common
stock will not be able to elect any directors.
Common stockholders have no conversion, sinking fund or
redemption rights, or preemptive rights to subscribe for any
securities of the Company.
Subject to the provisions of our articles of incorporation
regarding excess stock, all shares of common stock will have
equal dividend, distribution, liquidation and other rights, and
will have no preference, appraisal or exchange rights.
Under the MGCL, a corporation generally cannot, subject to
certain exceptions, dissolve, amend its articles of
incorporation, merge, sell all or substantially all of its
assets, engage in a share exchange or engage in similar
transactions outside the ordinary course of business unless
approved by the affirmative vote of stockholders holding at
least two-thirds of the shares entitled to vote on the matter
unless the corporations articles of incorporation set
forth a lesser percentage, which percentage shall not be less
than a majority of all of the votes to be cast on the matter.
Our articles of incorporation do not provide for a lesser
percentage in such situations.
Restrictions
on Ownership
For the Company to qualify as a REIT under the Code, not more
than 50% in value of its outstanding capital stock may be owned,
actually or by attribution, by five or fewer individuals, as
defined in the Code to include certain entities, during the last
half of a taxable year. To assist us in meeting this
requirement, we may take certain actions to limit the beneficial
ownership, directly or indirectly, by individuals of our
outstanding equity securities. See Restrictions on
Transfer of Capital Stock.
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Transfer
Agent
The transfer agent and registrar for the common stock is
Computershare Trust Company, N.A.
Shareholder
Rights Plan
On September 4, 1997, the board of directors of the Company
adopted a shareholder rights plan. Under the shareholder rights
plan, one right attached to each outstanding share of common
stock at the close of business on October 19, 1997, and one
right will attach to each share of common stock thereafter
issued. Each right entitles the holder to purchase, under
certain conditions, one one-hundredth of a share of our junior
participating preferred stock for $125.00. The rights may also,
under certain conditions, entitle the holders to receive common
stock, or common stock of an entity acquiring the Company, or
other consideration, each having a value equal to twice the
exercise price of each right ($250.00). We have designated
1,000,000 shares as junior participating preferred stock
and have reserved such shares for issuance under the shareholder
rights plan. In the event of any merger, consolidation,
combination or other transaction in which shares of common stock
are exchanged for or changed into other stock or securities,
cash and/or
other property, each share of junior participating preferred
stock will be entitled to receive 100 times the aggregate amount
of stock, securities, cash
and/or other
property into which or for which each share of common stock is
changed or exchanged, subject to certain adjustments. The rights
will expire on October 19, 2007, unless redeemed earlier by
the holders at $.001 per right or exchanged by the holder
at an exchange ratio of one share of common stock per right. The
description and terms of the rights are set forth in a
shareholder rights agreement between us and Computershare Trust
Company, N.A. (formerly First Chicago Trust Company of New York).
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CERTAIN
PROVISIONS OF MARYLAND LAW AND THE
COMPANYS ARTICLES OF INCORPORATION AND
BYLAWS
The following summary of certain provisions of Maryland law is
not complete and is qualified by reference to Maryland law and
our articles of incorporation and bylaws, which are incorporated
by reference to the registration statement of which this
prospectus is a part.
Business
Combinations
Under the MGCL, certain business combinations (as
defined in the MGCL) between a Maryland corporation and an
interested stockholder are prohibited for five years after the
most recent date on which the interested stockholder became an
interested stockholder. Under the MGCL, an interested
stockholder includes a person who is
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the beneficial owner, directly or indirectly, of 10 percent
or more of the voting power of the outstanding voting stock of
the corporation; or
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an affiliate or associate of the corporation and was the
beneficial owner, directly or indirectly, of 10 percent or
more of the voting power of the then outstanding stock of the
corporation at any time within the two-year period immediately
prior to the date in question.
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Business combinations for the purposes of the preceding
paragraph are defined by the MGCL to include certain mergers,
consolidations, share exchanges and asset transfers, some
issuances and reclassifications of equity securities, the
adoption of a plan of liquidation or dissolution or the receipt
by an interested stockholder or its affiliate of any loan
advance, guarantee, pledge or other financial assistance or tax
advantage provided by the Company. After the five-year
moratorium period, any such business combination must be
recommended by the board of directors of the corporation and
approved by the affirmative vote of at least
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80% of the votes entitled to be cast by holders of outstanding
shares of voting stock of the corporation voting together as a
single group and
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two-thirds of the votes entitled to be cast by holders of voting
stock of the corporation other than voting stock held by the
interested stockholder with whom (or with whose affiliate) the
business combination is to be effected or by any affiliate or
associate of the interested stockholder voting together as a
single voting group.
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The super-majority vote requirements will not apply if, among
other things, the corporations stockholders receive a
minimum price (as defined in the MGCL) for their shares and the
consideration is received in cash or in the same form as
previously paid by the interested stockholder for its shares.
These provisions of Maryland law do not apply, however, to
business combinations that are approved or exempted by the board
of directors of the corporation prior to the most recent time
that the interested stockholder becomes an interested
stockholder. Our articles of incorporation exempt from these
provisions of the MGCL any business combination in which there
is no interested stockholder other than Jay H. Shidler, the
Chairman of our board of directors, or any entity controlled by
Mr. Shidler unless Mr. Shidler is an interested
stockholder without taking into account his ownership of shares
of our common stock and the right to acquire shares of our
common stock in an aggregate amount that does not exceed the
number of shares of our common stock that he owned and had the
right to acquire, including through the exchange of limited
partnership units of the Operating Partnership, at the time of
the consummation of our initial public offering.
Control
Share Acquisitions
The MGCL provides that control shares (as defined in
the MGCL) of a Maryland corporation acquired in a control
share acquisition (as defined in the MGCL) have no voting
rights except to the extent approved by a vote of two-thirds of
the votes entitled to be cast on the matter, excluding shares of
stock owned by the acquiror or by officers or directors who are
also employees of the corporation. Control shares
are voting shares of stock that, if aggregated with all other
shares of stock previously acquired by that person,
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would entitle the acquiror to exercise voting power in electing
directors within one of the following ranges of voting power:
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one-tenth or more but less than one-third,
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one-third or more but less than a majority, or
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a majority or more of all voting power.
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Control shares do not include shares that the acquiring person
is then entitled to vote as a result of having previously
obtained stockholder approval. A control share
acquisition means the acquisition of ownership of or power
to direct the voting power of issued and outstanding control
shares, subject to certain exceptions.
A person who has made or proposes to make a control share
acquisition may compel the board of directors, upon satisfaction
of certain conditions, including an undertaking to pay certain
expenses, to call a special meeting of stockholders to be held
within 50 days after receiving a demand to consider the
voting rights of the shares. If no request for a meeting is
made, the corporation may itself present the question at any
meeting of stockholders.
If voting rights are not approved at the meeting or if the
acquiring person does not deliver an acquiring person statement
as required by the MGCL, then, subject to certain conditions and
limitations, the corporation may redeem any or all of the
control shares, except those for which voting rights have
previously been approved. The corporations redemption of
the control shares will be for fair value determined, without
regard to the absence of voting rights, as of the date of the
last control share acquisition or of any meeting of stockholders
at which the voting rights of the control shares are considered
and not approved. If voting rights for control shares are
approved at a stockholders meeting and the acquiror becomes
entitled to vote a majority of the shares entitled to vote, all
other stockholders may exercise appraisal rights. The fair value
of the shares as determined for purposes of the appraisal rights
may not be less than the highest price per share paid in the
control share acquisition. Certain limitations and restrictions
otherwise applicable to the exercise of dissenters rights
do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to
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shares acquired in a merger, consolidation or share exchange if
the corporation is a party to the transaction or
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acquisitions approved or exempted by our articles of
incorporation or bylaws.
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Our bylaws contain a provision exempting any and all
acquisitions of its shares of capital stock from the control
share provisions of the MGCL. There can be no assurance that
this bylaw provision will not be amended or eliminated in the
future.
Amendment
of Articles of Incorporation
Our articles of incorporation, including the provisions on
classification of the board of directors discussed below, may be
amended only by the affirmative vote of the holders of not less
than two-thirds of all of the votes entitled to be cast on the
matter.
Meetings
of Stockholders
Our bylaws provide for annual meetings of stockholders to be
held on the third Wednesday in April or on any other day as may
be established from time to time by our board of directors.
Special meetings of stockholders may be called by
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our Chairman of the board or our President,
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a majority of the board of directors or
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stockholders holding at least a majority of our outstanding
capital stock entitled to vote at the meeting.
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Our bylaws provide that any stockholder of record wishing to
nominate a director or have a stockholder proposal considered at
an annual meeting must provide written notice and certain
supporting documentation to the Company relating to the
nomination or proposal not less than 75 days nor more than
180 days prior to the anniversary date of the prior
years annual meeting or special meeting in lieu thereof
(the Anniversary Date). In the event that the annual
meeting is called for a date more than seven calendar days
before the Anniversary Date, stockholders generally must provide
written notice within 20 calendar days after the date on which
notice of the meeting is mailed to stockholders or the date of
the meeting is publicly disclosed.
The purpose of requiring stockholders to give us advance notice
of nominations and other business is to afford our board of
directors a meaningful opportunity to consider the
qualifications of the proposed nominees or the advisability of
the other proposed business and, to the extent deemed necessary
or desirable by our board of directors, to inform stockholders
and make recommendations about the qualifications or business,
as well as to provide a more orderly procedure for conducting
meetings of stockholders. Although our bylaws do not give our
board of directors any power to disapprove stockholder
nominations for the election of directors or proposals for
action, they may have the effect of precluding a contest for the
election of directors or the consideration of stockholder
proposals if the proper procedures are not followed and of
discouraging or deterring a third party from conducting a
solicitation of proxies to elect its own slate of directors or
to approve its own proposal. Our bylaws may have those effects
without regard to whether consideration of the nominees or
proposal might be harmful or beneficial to us and our
stockholders.
Classification
of the Board of Directors
Our bylaws provide that the number of directors may be
established by the board of directors but may not be fewer than
the minimum number required by Maryland law nor more than
twelve. Any vacancy will be filled, at any regular meeting or at
any special meeting called for that purpose, by a majority of
the remaining directors, except that a vacancy resulting from an
increase in the number of directors will be filled by a majority
of the entire board of directors. Under the terms of our
articles of incorporation, the directors are divided into three
classes holding office for terms expiring at the annual meetings
of stockholders to be held in 2007, 2008 and 2009. As the term
of each class expires, directors in that class will be elected
for a term of three years and until their successors are duly
elected and qualified. We believe that classification of our
board of directors will help to assure the continuity and
stability of our business strategies and policies as determined
by our board of directors.
The classified board provision could have the effect of making
the removal of incumbent directors more time consuming and
difficult, which could discourage a third party from making a
tender offer or otherwise attempting to obtain control of the
Company, even though such an attempt might be beneficial to us
and our stockholders. At least two annual meetings of
stockholders, instead of one, will generally be required to
effect a change in a majority of our board of directors. Thus,
the classified board provision could increase the likelihood
that incumbent directors will retain their positions. Holders of
shares of common stock will have no right to cumulative voting
for the election of directors. Consequently, at each annual
meeting of stockholders, the holders of a majority of the shares
of common stock will be able to elect all of the successors of
the class of directors whose term expires at that meeting.
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RESTRICTIONS
ON TRANSFER OF CAPITAL STOCK
For the Company to qualify as a REIT under the Code, among other
things, not more than 50% in value of its outstanding capital
stock may be owned, actually or by attribution, by five or fewer
individuals (as defined in the Code to include certain entities)
during the last half of a taxable year. Our capital stock must
also be beneficially owned by 100 or more persons during at
least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter tax year. See
Certain U.S. Federal Income Tax Considerations.
To ensure that we remain a qualified REIT, our articles of
incorporation, subject to certain exceptions, provide that no
holder may own, or be deemed to own by virtue of the attribution
provisions of the Code, more than an aggregate of 9.9% in value
of our capital stock. Any transfer of capital stock or any
security convertible into capital stock that would create a
direct or indirect ownership of capital stock in excess of the
ownership limit or that would result in our disqualification as
a REIT, including any transfer that results in the capital stock
being owned by fewer than 100 persons or results in us being
closely held within the meaning of
Section 856(h) of the Code, shall be null and void, and the
intended transferee will acquire no rights to the capital stock.
Capital stock owned, or deemed to be owned, or transferred to a
stockholder in excess of the ownership limit will automatically
be exchanged for shares of excess stock, as defined
in our articles of incorporation, that will be transferred, by
operation of law, to us as trustee of a trust for the exclusive
benefit of the transferees to whom such capital stock may be
ultimately transferred without violating the ownership limit.
While the excess stock is held in trust, it will not be entitled
to vote, it will not be considered for purposes of any
stockholder vote or the determination of a quorum for such vote,
and it will not be entitled to participate in the accumulation
or payment of dividends or other distributions. A transferee of
excess stock may, at any time such excess stock is held by us in
trust, designate as beneficiary of the transferee
stockholders interest in the trust representing the excess
stock any individual whose ownership of the capital stock
exchanged into such excess stock would be permitted under the
ownership limit, and may transfer that interest to the
beneficiary at a price not in excess of the price paid by the
original transferee-stockholder for the capital stock that was
exchanged into excess stock. Immediately upon the transfer to
the permitted beneficiary, the excess stock will automatically
be exchanged for capital stock of the class from which it was
converted.
In addition, we will have the right, for a period of
90 days during the time any excess stock is held by us in
trust, and, with respect to excess stock resulting from the
attempted transfer of our preferred stock, at any time when any
outstanding shares of preferred stock of the series are being
redeemed, to purchase all or any portion of the excess stock
from the original transferee-stockholder at the lesser of the
price paid for the capital stock by the original
transferee-stockholder and the market price, as determined in
the manner set forth in our articles of incorporation, of the
capital stock on the date we exercise our option to purchase or,
in the case of a purchase of excess stock attributed to
preferred stock which has been called for redemption, at its
stated value, plus all accumulated and unpaid dividends to the
date of redemption. The
90-day
period begins on the date of the violative transfer if the
original transferee-stockholder gives notice to us of the
transfer or, if no such notice is given, the date the board of
directors determines that a violative transfer has been made.
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CERTAIN
U.S. FEDERAL INCOME TAX CONSIDERATIONS
This section is a summary of the material U.S. federal
income tax matters of general application pertaining to REITs
under the Code. This discussion is based upon current law (which
is subject to change, possibly on a retroactive basis) and does
not purport to deal with federal income tax consequences to
investors who purchase our debt securities, common stock,
preferred stock or preferred stock represented by depositary
shares (which consequences will be described in applicable
supplements to this prospectus). The provisions of the Code
pertaining to REITs are highly technical and complex and
sometimes involve mixed questions of fact and law. This section
does not discuss U.S. federal estate or gift taxation or
state, local or foreign taxation.
In the opinion of Cahill Gordon & Reindel LLP:
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commencing with our taxable year ended December 31, 1994,
we have been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the
Code and
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our current and proposed method of operation (as represented by
us to Cahill Gordon & Reindel LLP in a written
certificate) will enable us to continue to meet the requirements
for qualification and taxation as a REIT under the Code.
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Cahill Gordon & Reindel LLPs opinion is based on
various assumptions and is conditioned upon certain
representations made by us as to factual matters with respect to
us and certain partnerships, limited liability companies and
corporations through which we hold substantially all of our
assets, including an assumption that, if we ultimately were
found not to have satisfied the gross income requirements of the
REIT provisions as a result of certain development agreements
entered into by us between 2000 and 2003, or as a result of
certain joint venture fee income derived in 2006, such failure
was due to reasonable cause and not due to willful neglect.
Moreover, our qualification and taxation as a REIT depends upon
our ability to meet, as a matter of fact, through actual annual
operating results, distribution levels, diversity of stock
ownership and various other qualification tests imposed under
the Code discussed below, the results of which will not be
reviewed by Cahill Gordon & Reindel LLP. No assurance
can be given that the actual results of our operations for any
particular taxable year will satisfy those requirements.
To qualify as a REIT under the Code for a taxable year, we must
meet certain organizational and operational requirements, which
generally require us to be a passive investor in real estate and
to avoid excessive concentration of ownership of our capital
stock. Generally, at least 75% of the value of our total assets
at the end of each calendar quarter must consist of real estate
assets, cash or governmental securities. We generally may not
own securities possessing more than 10% of the total voting
power, or representing more than 10% of the total value, of the
outstanding securities of any issuer, and the value of any one
issuers securities may not exceed 5% of the value of our
assets. Shares of qualified REITs, qualified temporary
investments and shares of certain wholly owned subsidiary
corporations known as qualified REIT subsidiaries
and taxable REIT subsidiaries are exempt from these
prohibitions. We hold assets through certain qualified REIT
subsidiaries and taxable REIT subsidiaries. In the opinion of
Cahill Gordon & Reindel LLP, based on certain factual
representations, these holdings do not violate the prohibitions
in the REIT provisions on ownership of securities.
The 10% and 5% limitations described above will not apply to the
ownership of securities of a taxable REIT subsidiary. A REIT may
own up to 100% of the securities of a taxable REIT subsidiary
subject only to the limitations that the aggregate value of the
securities of all taxable REIT subsidiaries owned by the REIT
does not exceed 20% of the value of the assets of the REIT, and
the aggregate value of all securities owned by the REIT
(including the securities of all taxable REIT subsidiaries, but
excluding governmental securities) does not exceed 25% of the
value of the assets of the REIT. A taxable REIT subsidiary
generally is any corporation (other than another REIT and
corporations involved in certain lodging, healthcare,
franchising and licensing activities) owned by a REIT with
respect to which the REIT and such corporation jointly elect
that such corporation shall be treated as a taxable REIT
subsidiary.
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For each taxable year, at least 75% of a REITs gross
income must be derived from specified real estate sources and
95% must be derived from such real estate sources plus certain
other permitted sources. Real estate income for purposes of
these requirements includes
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gain from the sale of real property not held primarily for sale
to customers in the ordinary course of business,
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dividends on REIT shares,
|
|
|
|
interest on loans secured by mortgages on real property,
|
|
|
|
certain rents from real property and
|
|
|
|
certain income from foreclosure property.
|
For rents to qualify, they may not be based on the income or
profits of any person, except that they may be based on a
percentage or percentages of gross receipts. Also, subject to
certain limited exceptions, the REIT may not manage the property
or furnish services to tenants except through an independent
contractor which is paid an arms-length fee and from which
the REIT derives no income. However, a REIT may render a
de minimis amount of otherwise impermissible
services to tenants, or in connection with the management of
property, without causing any income from the property (other
than the portion of the income attributable to the impermissible
services) to fail to qualify as rents from real property. In
addition, a taxable REIT subsidiary may provide certain services
to tenants of the REIT, which services could not otherwise be
provided by the REIT or the REITs other subsidiaries.
Substantially all of our assets are held through certain
partnerships. In general, in the case of a REIT that is a
partner in a partnership, applicable regulations treat the REIT
as holding directly its proportionate share of the assets of the
partnership and as being entitled to the income of the
partnership attributable to such share based on the REITs
proportionate share of such partnership capital.
We must satisfy certain ownership restrictions that limit the
concentration of ownership of our capital stock and the
ownership by us of our tenants. Our outstanding capital stock
must be held by at least 100 stockholders during at least
335 days of a taxable year or during a proportionate part
of a taxable year of less than 12 months. No more than 50%
in value of our outstanding capital stock, including in some
circumstances capital stock into which outstanding securities
might be converted, may be owned actually or constructively by
five or fewer individuals or certain entities at any time during
the last half of any taxable year. Accordingly, our articles of
incorporation contain certain restrictions regarding the
transfer of our common stock, preferred stock and any other
outstanding securities convertible into stock when necessary to
maintain our qualification as a REIT under the Code. However,
because the Code imposes broad attribution rules in determining
constructive ownership, no assurance can be given that the
restrictions contained in our articles of incorporation will be
effective in maintaining our REIT qualification. See
Restrictions on Transfer of Capital Stock above.
So long as we qualify for taxation as a REIT, distribute at
least 90% of our REIT taxable income, computed without regard to
net capital gain or the dividends paid deduction, for each
taxable year to our stockholders annually and satisfy certain
other distribution requirements, we will not be subject to U.S.
federal income tax on that portion of such income distributed to
stockholders. We will be taxed at regular corporate rates on all
income not distributed to stockholders. Our policy is to
distribute at least 90% of our taxable income annually. We may
elect to pass through to our stockholders on a pro rata basis
any taxes paid by us on our undistributed net capital gain
income for the relevant tax year. REITs also may incur taxes for
certain other activities or to the extent distributions do not
satisfy certain other requirements.
Our failure to qualify during any taxable year as a REIT could
have a material adverse effect upon our stockholders and might
materially affect our ability to pay interest and principal to
the holders of our debt securities. If disqualified for taxation
as a REIT for a taxable year, we also would be unable to elect
to be taxed as a REIT for the next four taxable years, unless
certain relief provisions were available. We would be subject to
U.S. federal income tax at corporate rates on all of our taxable
income and would not be able to deduct any dividends paid, which
could have a material adverse effect on our business and could
result in a discontinuation of or substantial reduction in
dividends to stockholders and might materially affect our
ability
34
to pay interest and principal to the holders of our debt
securities. Should the failure to qualify as a REIT be
determined to have occurred retroactively in one of our earlier
tax years, the imposition of a substantial federal income tax
liability on us attributable to any nonqualifying tax years
could have a material adverse effect on our business and would
result in a discontinuation of or substantial reduction in
dividends to stockholders and interest and principal to the
holders of our debt securities.
In the event that we fail to meet certain gross income tests
applicable to REITs, we may retain our qualification as a REIT
if we pay a penalty tax equal to the amount by which 95% (or 90%
for taxable years prior to 2005) or 75% of our gross income
exceeds our gross income qualifying under the 95% or 75% gross
income test, respectively (whichever amount is greater),
multiplied by a fraction intended to reflect our profitability,
so long as such failure was considered to be due to reasonable
cause and not willful neglect and certain other conditions are
satisfied. For taxable years after 2004, if we fail to meet the
5% or 10% asset tests applicable to REITs at the end of any
quarter and do not cure such failure within 30 days
thereafter, we may nonetheless retain our qualification as a
REIT provided that the failure was due to assets the value of
which did not exceed a specific statutory de minimis
amount and certain other conditions are satisfied. For
violations of any of the REIT asset tests not described in the
preceding sentences, we may nonetheless retain our qualification
as a REIT if we pay a tax equal to the greater of $50,000 or 35%
of the net income generated by the nonqualifying assets, so long
as any such failure was considered to be due to reasonable cause
and not willful neglect and certain other conditions are
satisfied. In addition, if we fail to satisfy certain
requirements of the REIT provisions (other than the failures
described above in the preceding sentences), we may nonetheless
retain our qualification as a REIT if we pay a penalty of
$50,000 for each such failure, so long as each such failure was
considered to be due to reasonable cause and not willful
neglect. Any such taxes or penalty amounts could have a material
adverse effect on our business and would result in a
discontinuation of or substantial reduction in dividends to
stockholders and interest and principal to the holders of our
debt securities.
35
FORWARD-LOOKING
STATEMENTS
This prospectus contains certain forward-looking statements
within the meaning of Section 27A of the Securities Act,
and Section 21E of the Exchange Act. We intend such
forward-looking statements to be covered by the safe harbor
provisions for forward-looking statements contained in the
Private Securities Litigation Reform Act of 1995 and are
including this statement for the purposes of complying with
those safe harbor provisions. Forward-looking statements, which
are based on certain assumptions and describe our future plans,
strategies and expectations, are generally identifiable by use
of the words believe, expect,
intend, anticipate,
estimate, project or similar
expressions. Our ability to predict results or the actual effect
of future plans or strategies is inherently uncertain. Factors
which could have a material adverse effect on our operations and
future prospects on a consolidated basis include, but are not
limited to:
|
|
|
|
|
changes in economic conditions generally and the real estate
market specifically,
|
|
|
|
legislative/regulatory changes (including changes to laws
governing the taxation of real estate investment trusts),
|
|
|
|
availability of financing,
|
|
|
|
interest rate levels,
|
|
|
|
competition,
|
|
|
|
supply and demand for industrial properties in our current and
proposed market areas,
|
|
|
|
potential environmental liabilities,
|
|
|
|
slippage in development or
lease-up
schedules,
|
|
|
|
|
|
higher than expected costs, and
|
|
|
|
changes in general accounting principles, policies and
guidelines applicable to real estate investment trusts.
|
These risks and uncertainties should be considered in evaluating
forward-looking statements and undue reliance should not be
placed on such statements. Further information concerning us and
our business, including additional factors that could materially
affect our financial results, is included elsewhere in this
prospectus and in the documents we incorporate by reference,
including the Annual Report on
Form 10-K
of the Operating Partnership for the year ended
December 31, 2006 and the Annual Report on
Form 10-K
of the Company for the year ended December 31, 2006.
WHERE YOU
CAN FIND MORE INFORMATION
The Company and the Operating Partnership are subject to the
informational requirements of the Exchange Act, and in
accordance therewith, and file reports and other information
with the SEC. You may read and copy any of the Companys
and the Operating Partnerships reports and other materials
filed with the SEC at the Public Reference Room of the SEC at
100 F Street, N.E., Washington, D.C. 20549. Please call the
SEC at
1-800-SEC-0330
for further information on the Public Reference Room. In
addition, the SEC maintains a website that contains reports and
other information regarding registrants that file electronically
with the SEC at http://www.sec.gov. The Companys common
stock is listed on the NYSE and its filings with the SEC can
also be inspected and copied at the offices of the NYSE at
20 Broad Street, New York, New York 10005.
Whenever a reference is in made in this prospectus to any of our
agreements or other documents, please be aware that the
reference herein is only a summary and that you should refer to
the exhibits that are part of the registration statement filed
with the SEC on
Form S-3
for a copy of such agreement or other document.
36
DOCUMENTS
INCORPORATED BY REFERENCE
We incorporate by reference information we file with the SEC,
which means that we can disclose important information to you by
referring you to those documents. The information incorporated
by reference is an important part of this prospectus and more
recent information automatically updates and supersedes more
dated information contained or incorporated by reference in this
prospectus.
The Company (file no. 1-13102) filed the following
documents with the SEC and incorporates them by reference into
this prospectus:
|
|
|
|
(1)
|
Annual Report on
Form 10-K
for the year ended December 31, 2006, filed March 1,
2007.
|
|
|
(2)
|
Current Report on
Form 8-K
filed January 29, 2007.
|
|
|
(3)
|
Current Report on
Form 8-K
filed April 30, 2007.
|
The Operating Partnership (file
no. 333-21873)
filed the following documents with the SEC and incorporates them
by reference into this prospectus:
|
|
|
|
(1)
|
Annual Report on
Form 10-K
for the year ended December 31, 2006, filed March 1,
2007.
|
|
|
(2)
|
Current Report on
Form 8-K
filed April 30, 2007.
|
All documents filed by the Company and the Operating Partnership
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this prospectus and prior to the
termination of this offering shall be deemed to be incorporated
by reference in this prospectus and made a part hereof from the
date of the filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this prospectus to the extent that
a statement contained herein (in the case of a previously filed
document incorporated or deemed to be incorporated by reference
herein) or in any other document subsequently filed with the SEC
which also is incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
We will provide, without charge, to each person to whom this
prospectus is delivered a copy of these filings upon written or
oral request to First Industrial Realty Trust, Inc.,
311 S. Wacker Drive, Suite 4000, Chicago,
Illinois 60606, Attention: Investor Relations, telephone number
(312) 344-4300.
EXPERTS
The financial statements and managements assessment of the
effectiveness of internal control over financial reporting
(which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this
prospectus by reference to the Annual Report on
Form 10-K
of First Industrial Realty Trust, Inc. for the year ended
December 31, 2006 and the Annual Report on
Form 10-K
of the Operating Partnership for the year ended
December 31, 2006 and the financial statements incorporated
in this prospectus by reference to the First Industrial Realty
Trust, Inc. Current Report on
Form 8-K
dated April 30, 2007 and the Operating Partnership Current
Report on Form 8-K dated April 30, 2007, have been so
incorporated in reliance on the reports of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts
in auditing and accounting.
LEGAL
MATTERS
Certain legal matters will be passed upon for us by Cahill
Gordon & Reindel
llp, New York, New
York. Cahill Gordon & Reindel
llp will rely as
to all matters of Maryland law on the opinion of McGuireWoods
LLP, Baltimore, Maryland. If counsel for any underwriter, dealer
or agent passes on legal matters in connection with an offering
made by this prospectus, we will name that counsel in the
prospectus supplement relating to the offering.
37
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 14.
|
Other
Expenses of Issuance and Distribution.*
|
The following table sets forth the estimated expenses in
connection with the issuance and distribution of the securities
registered hereby, which will be borne by the registrants. All
amounts shown are estimates:
|
|
|
|
|
SEC registration fee
|
|
$
|
|
(1)
|
Fees of Rating Agencies
|
|
|
367,000.00
|
|
NYSE Fee
|
|
|
98,271.16
|
|
Printing and engraving expenses
|
|
|
500,000.00
|
|
Legal fees and expenses
|
|
|
90,000.00
|
|
Accounting fees and expenses
|
|
|
13,000.00
|
|
Miscellaneous
|
|
|
9,999.84
|
|
|
|
|
|
|
Total
|
|
$
|
1,078,271.00
|
|
|
|
|
(1) |
|
Deferred in reliance on Rule 456(b) and calculated in
connection with an offering of securities under this
registration statement pursuant to Rule 457(r) under the
Securities Act of 1933, as amended. |
|
* |
|
All expenses are estimated. Please refer to the applicable
prospectus supplement for the specific expenses related to any
particular offering. |
|
|
Item 15.
|
Indemnification
of Directors and Officers.
|
The articles of incorporation of First Industrial Realty Trust,
Inc. (the Company) contain certain provisions
limiting the liability of the directors and officers to the
fullest extent permitted by
Section 5-418
of the Courts and Judicial Proceedings Article of the Annotated
Code of Maryland (Courts and Judicial Proceedings
Article). The Companys articles of incorporation and
bylaws also provide certain limitations, permitted under
Maryland General Corporation Law (the MGCL), on each
directors personal liability for monetary damages for
breach of any duty as a director.
Section 5-418
of the Courts and Judicial Proceedings Article permits a
Maryland corporation to limit the liability of its directors and
officers to the corporation and its stockholders for money
damages, except to the extent that: (a) it is proved that
the director or officer actually received an improper benefit or
profit in money, property or services for the amount of the
benefit or profit in money, property, or services actually
received or (b) a judgment or other final adjudication is
entered in a proceeding based on a finding that the act, or
failure to act, of the director or officer was the result of
active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding.
In addition, the Companys articles of incorporation and
bylaws obligate the Company to indemnify its directors and
officers, and permit the Company to indemnify its employees and
other agents, against certain liabilities and expenses incurred
in connection with their service in such capacities, as well as
advancement of costs, expenses and attorneys fees, to the
fullest extent permitted under the MGCL.
Section 2-418
of the MGCL permits a Maryland corporation to indemnify its
present and former directors and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the directors or officers in connection
with any proceeding to which they may be made a party by reason
of their service in such capacities, unless it is established
that (a) the act or omission of the director or officer was
material to the matter giving rise to such proceeding and
(i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or
officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful.
The directors and officers of the Company are entitled to the
benefits of liability insurance maintained by the Company for
certain losses arising from claims or charges made against any
officer or director in connection with his or her service in
such capacity.
II-1
The Eleventh Amended and Restated Agreement of Limited
Partnership of First Industrial, L.P. contains provisions
indemnifying the Company and its officers, directors and
stockholders to the fullest extent permitted by the Delaware
Revised Uniform Limited Partnership Act.
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|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
1
|
.2*
|
|
Form of Sales Agreement.
|
|
4
|
.1
|
|
Amended and Restated Articles of
Incorporation of First Industrial Realty Trust, Inc.
(incorporated by reference to Exhibit 3.1 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.2
|
|
Amended and Restated Bylaws of
First Industrial Realty Trust, Inc., dated September 4,
1997 (incorporated by reference to Exhibit 1 of
Form 8-K
of First Industrial Realty Trust, Inc. dated September 4,
1997, as filed on September 29, 1997).
|
|
4
|
.3
|
|
Articles of Amendment to First
Industrial Realty Trust, Inc.s Articles of Incorporation,
dated June 20, 1994 (incorporated by reference to
Exhibit 3.2 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.4
|
|
Articles of Amendment to First
Industrial Realty Trust, Inc.s Articles of Incorporation,
dated May 31, 1996 (incorporated by reference to
Exhibit 3.3 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.5
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s
85/8%
Series C Cumulative Preferred Stock, $0.1 par value
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial Realty Trust, Inc. dated June 6, 1997).
|
|
4
|
.6
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s Junior
Participating Preferred Stock, $.01 par value (incorporated
by reference to Exhibit 4.10 of
Form S-3
of First Industrial Realty Trust, Inc. and First Industrial,
L.P. dated September 24, 1997, Registration
No. 333-29879).
|
|
4
|
.7
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 6.236%
Series F Flexible Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 3.1 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.8
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.236%
Series G Flexible Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 3.2 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.9
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.25%
Series J Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 4.1 of the
Form 8-K
of First Industrial Realty Trust, Inc., filed January 17,
2006).
|
|
4
|
.10
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.25%
Series K Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 1.6 of the
Form 8-A
of First Industrial Realty Trust, Inc., filed August 18,
2006).
|
|
4
|
.11
|
|
Deposit Agreement, dated
June 6, 1997, by and among First Industrial Realty Trust,
Inc., First Chicago Trust Company of New York and holders from
time to time of Series C Depositary Receipts (incorporated
by reference to Exhibit 4.2 of
Form 8-K
of First Industrial Realty Trust, Inc., dated June 6, 1997).
|
|
4
|
.12
|
|
Deposit Agreement, dated
May 27, 2004, by and among First Industrial Realty Trust,
Inc., EquiServe Inc. and EquiServe Trust Company, N.A. and
holders from time to time of Series F Depositary Receipts
(incorporated by reference to Exhibit 4.1 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.13
|
|
Deposit Agreement, dated
May 27, 2004, by and among First Industrial Realty Trust,
Inc., EquiServe Inc. and EquiServe Trust Company, N.A. and
holders from time to time of Series G Depositary Receipts
(incorporated by reference to Exhibit 4.2 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
II-2
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.14
|
|
Deposit Agreement, dated
January 13, 2006, by and among First Industrial Realty
Trust Inc., Computershare Shareholder Services, Inc. and
Computershare Trust Company, N.A., as depositary, and holders
from time to time of Series J Depositary Receipts
(incorporated by reference to Exhibit 10.1 of the
Form 8-K
of First Industrial Realty Trust, Inc., filed January 17,
2006).
|
|
4
|
.15
|
|
Deposit Agreement, dated
August 21, 2006, by and among First Industrial Realty Trust
Inc., Computershare Shareholder Services, Inc. and Computershare
Trust Company, N.A., as depositary, and holders from time to
time of Series K Depositary Receipts (incorporated by
reference to Exhibit 1.7 of the
Form 8-A
of First Industrial Realty Trust, Inc., filed August 18,
2006).
|
|
4
|
.16
|
|
Indenture, dated as of
May 13, 1997, between First Industrial, L.P. and First
Trust National Association, as Trustee (incorporated by
reference to Exhibit 4.1 of
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 First Industrial Realty Trust, Inc. filed
May 30, 1997).
|
|
4
|
.17
|
|
Supplemental Indenture No. 1,
dated as of May 13, 1997, between First Industrial, L.P.
and First Trust National Association as Trustee relating to
$150 million of 7.60% Notes due 2007 and
$100 million of 7.15% Notes due 2027 (incorporated by
reference to Exhibit 4.2 of
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 First Industrial Realty Trust, Inc. filed
May 30, 1997).
|
|
4
|
.18
|
|
Supplemental Indenture No. 2,
dated as of May 22, 1997, between First Industrial, L.P.
and First Trust National Association as Trustee relating to
$100 million of
73/8% Notes
due 2011 (incorporated by reference to Exhibit 4.4 of
Form 10-Q
of First Industrial, L.P. for the fiscal quarter ended
March 31, 1997).
|
|
4
|
.19
|
|
Supplemental Indenture No. 3
dated October 28, 1997 between First Industrial, L.P. and
First Trust National Association providing for the issuance
of Medium-Term Notes due Nine Months or more from Date of Issue
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated November 3, 1997).
|
|
4
|
.20
|
|
Indenture, dated as of
September 25, 2006, between First Industrial, L.P., as
Issuer, First Industrial Realty Trust, Inc., as Guarantor, and
U.S. Bank National Association, as Trustee (incorporated by
reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P., dated September 25, 2006).
|
|
4
|
.21
|
|
7.50% Medium-Term Note due 2017 in
principal amount of $100 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.19
of
Form 10-K
of First Industrial Realty Trust, Inc. for the year ended
December 31, 1997).
|
|
4
|
.22
|
|
Trust Agreement, dated as of
May 16, 1997, between First Industrial, L.P. and First Bank
National Association, as Trustee (incorporated by reference to
Exhibit 4.5 of
Form 10-QT
of First Industrial, L.P. for the fiscal quarter ended
March 31, 1997).
|
|
4
|
.23
|
|
Rights Agreement, dated as of
September 16, 1997, between First Industrial Realty Trust,
Inc. and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of
Form 8-A12B
of First Industrial Realty Trust, Inc. filed on
September 24, 1997).
|
|
4
|
.24
|
|
7.60% Notes due 2028 in
principal amount of $200 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.2
of
Form 8-K
of First Industrial, L.P. dated July 15, 1998).
|
|
4
|
.25
|
|
Supplemental Indenture No. 5,
dated as of July 14, 1998, between First Industrial, L.P.
and U.S. Bank Trust National Association, relating to
First Industrial, L.P.s 7.60% Notes due July 15,
2028 (incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated July 15, 1998).
|
|
4
|
.26
|
|
Supplemental Indenture No. 6,
dated as of March 19, 2001, between First Industrial, L.P.
and U.S. Bank Trust National Association, relating to
First Industrial, L.P.s 7.375% Notes due
March 15, 2011 (incorporated by reference to
Exhibit 4.16 of First Industrial L.P.s Annual Report
on
Form 10-K
for the year ended December 31, 2000).
|
|
4
|
.27
|
|
7.375% Note due in 2011 in
the principal amount of $200 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.15
of First Industrial, L.P.s Annual Report on
Form 10-K
for the year ended December 31, 2000).
|
II-3
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.28
|
|
Supplemental Indenture No. 7
dated as of April 15, 2002, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 6.875% Notes due 2012 and
7.75% Notes due 2032 (incorporated by reference to
Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated April 4, 2002).
|
|
4
|
.29
|
|
Form of 6.875% Notes due in
2012 in the principal amount of $200 million issued by
First Industrial, L.P. (incorporated by reference to
Exhibit 4.2 of
Form 8-K
of First Industrial, L.P., dated April 4, 2002).
|
|
4
|
.30
|
|
Form of 7.75% Notes due 2032
in the principal amount of $50.0 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.3
of
Form 8-K
of First Industrial, L.P., dated April 4, 2002).
|
|
4
|
.31
|
|
Amendment No. 1, dated as of
February 25, 2004, to Rights Agreement, dated as of
September 16, 1997, between First Industrial Realty Trust,
Inc. and EquiServe Trust Company, N.A. (f/k/a First Chicago
Trust Company of New York), as Rights Agent (incorporated by
reference to Exhibit 4.23 of
Form 10-K
of First Industrial Realty Trust, Inc. for the year ended
December 31, 2003).
|
|
4
|
.32
|
|
Supplemental Indenture No. 8,
dated as of May 17, 2004, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 6.42% Notes due 2014 (incorporated
by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. filed May 27, 2004).
|
|
4
|
.33
|
|
Supplemental Indenture No. 9,
dated as of June 14, 2004, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 5.25% Senior Notes due 2009
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. filed June 17, 2004).
|
|
4
|
.34
|
|
Supplemental Indenture
No. 10, dated as of January 10, 2006, relating to
5.75% Senior Notes due 2016, by and between the Operating
Partnership and U.S. Bank National Association
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial Realty Trust, Inc. filed January 11,
2006).
|
|
4
|
.35
|
|
Form of 4.625% Exchangeable Senior
Notes due 2011 in principal amount of $200 million issued
by First Industrial, L.P. (incorporated by reference to
Exhibit 4.2 of the current report on
Form 8-K
of First Industrial, L.P. dated September 25, 2006).
|
|
5
|
.1**
|
|
Opinion of Cahill
Gordon & Reindel
llp,
counsel to the registrants, as to the legality of the securities
being registered.
|
|
5
|
.2**
|
|
Opinion of McGuireWoods LLP,
counsel to the registrants, as to the legality of the securities
being registered.
|
|
8
|
.1**
|
|
Opinion of Cahill
Gordon & Reindel
llp,
counsel to the registrants, as to certain tax matters.
|
|
10
|
.1
|
|
Eleventh Amended and Restated
Limited Partnership Agreement of First Industrial, L.P. dated
August 21, 2006 (incorporated by reference to
Exhibit 10.2 of the current report on
Form 8-K
of First Industrial Realty Trust, Inc. dated August 21,
2006).
|
|
12
|
.1
|
|
Computation of ratios of earnings
to fixed charges and preferred stock dividends of First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 12.1 of First Industrial Realty Trust Inc.s
Annual Report on
Form 10-K
for the year ended December 31, 2006).
|
|
12
|
.2
|
|
Computation of ratios of earnings
to fixed charges of First Industrial, L.P. (incorporated by
reference to Exhibit 12.1 of First Industrial, L.P.s
Annual Report on
Form 10-K
for the year ended December 31, 2006).
|
|
23
|
.1**
|
|
Consent of PricewaterhouseCoopers
LLP.
|
|
23
|
.2**
|
|
Consents of Cahill
Gordon & Reindel
llp
(included in Exhibits 5.1 and 8.1).
|
|
23
|
.3**
|
|
Consents of McGuireWoods LLP
(included in Exhibit 5.2).
|
|
24
|
.1**
|
|
Power of Attorney (included on the
signature pages hereto).
|
|
25
|
.1
|
|
Statement of eligibility of
Trustee on
Form T-1
(incorporated by reference to Exhibit 25.1 of First
Industrial L.P.s
Form S-3
filed on August 2, 2004).
|
|
|
|
* |
|
To be filed either by amendment or as an exhibit to an Exchange
Act report of one or more of the registrants and incorporated
herein by reference. |
|
** |
|
Filed herewith. |
II-4
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act of 1933, if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table
in the effective registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that the undertakings set forth
in paragraphs (i), (ii) and (iii) above do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the
registrants pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) If the registrants are relying on Rule 430B:
(A) each prospectus filed by the registrants pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed
to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the
II-5
securities in the registration statement to which that
prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a
registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of each
of the registrants under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities: Each of
the undersigned registrants undertakes that in a primary
offering of securities of each of the undersigned registrants
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the
undersigned registrants will be a seller to the purchaser and
will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned registrants relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrants or used
or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned registrants or their securities provided by or
on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the
offering made by each of the undersigned registrants to the
purchaser.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of each of the
registrants annual reports pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit
plans annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of each of the registrants pursuant to
the provisions described under item 15 above, or otherwise,
the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer
or controlling persons of each of the registrants in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, each of the
registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on
Form S-3
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Chicago, State of Illinois, on April 30, 2007.
FIRST INDUSTRIAL REALTY TRUST, INC.
|
|
|
|
By:
|
/s/ Michael
J. Havala
|
Name: Michael J. Havala
Title: Chief Financial Officer
FIRST INDUSTRIAL, L.P.
By: First Industrial Realty Trust, Inc.
|
|
|
|
By:
|
/s/ Michael
J. Havala
|
Name: Michael J. Havala
Title: Chief Financial Officer
POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Michael W. Brennan
and Michael J. Havala, and each of them (with full power to each
of them to act alone), his true and lawful
attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement on
Form S-3,
to sign any and all post-effective amendments to this
Registration Statement on
Form S-3
and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Commission, granting
unto said
attorneys-in-fact
and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in connection with such matters, as fully to all intents
and purposes as he might or could do in person, hereby ratifying
and confirming all that said
attorneys-in-fact
and agents, or any of them, or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated:
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Michael
W. Brennan
Michael
W. Brennan
|
|
President, Chief Executive Officer
and Director (Principal Executive Officer)
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Michael
J. Havala
Michael
J. Havala
|
|
Chief Financial Officer
(Principal Financial Officer)
|
|
April 30, 2007
|
II-7
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Scott
A. Musil
Scott
A. Musil
|
|
Chief Accounting Officer
(Principal Accounting Officer)
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Jay
H. Shidler
Jay
H. Shidler
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Michael
G. Damone
Michael
G. Damone
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Kevin
W. Lynch
Kevin
W. Lynch
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Robert
D. Newman
Robert
D. Newman
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ Robert
J.
Slater Robert
J. Slater
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ W.
Ed
Tyler W.
Ed Tyler
|
|
Director
|
|
April 30, 2007
|
|
|
|
|
|
/s/ J.
Steven Wilson
J.
Steven Wilson
|
|
Director
|
|
April 30, 2007
|
II-8
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
1
|
.1*
|
|
Form of Underwriting Agreement.
|
|
1
|
.2*
|
|
Form of Sales Agreement.
|
|
4
|
.1
|
|
Amended and Restated Articles of
Incorporation of First Industrial Realty Trust, Inc.
(incorporated by reference to Exhibit 3.1 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.2
|
|
Amended and Restated Bylaws of
First Industrial Realty Trust, Inc., dated September 4,
1997 (incorporated by reference to Exhibit 1 of
Form 8-K
of First Industrial Realty Trust, Inc. dated September 4,
1997, as filed on September 29, 1997).
|
|
4
|
.3
|
|
Articles of Amendment to First
Industrial Realty Trust, Inc.s Articles of Incorporation,
dated June 20, 1994 (incorporated by reference to
Exhibit 3.2 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.4
|
|
Articles of Amendment to First
Industrial Realty Trust, Inc.s Articles of Incorporation,
dated May 31, 1996 (incorporated by reference to
Exhibit 3.3 of
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 1996).
|
|
4
|
.5
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s
85/8%
Series C Cumulative Preferred Stock, $0.1 par value
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial Realty Trust, Inc. dated June 6, 1997).
|
|
4
|
.6
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s Junior
Participating Preferred Stock, $.01 par value (incorporated
by reference to Exhibit 4.10 of
Form S-3
of First Industrial Realty Trust, Inc. and First Industrial,
L.P. dated September 24, 1997, Registration
No. 333-29879).
|
|
4
|
.7
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 6.236%
Series F Flexible Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 3.1 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.8
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.236%
Series G Flexible Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 3.2 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.9
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.25%
Series J Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 4.1 of the
Form 8-K
of First Industrial Realty Trust, Inc., filed January 17,
2006).
|
|
4
|
.10
|
|
Articles Supplementary
relating to First Industrial Realty Trust, Inc.s 7.25%
Series K Cumulative Redeemable Preferred Stock,
$.01 par value (incorporated by reference to
Exhibit 1.6 of the
Form 8-A
of First Industrial Realty Trust, Inc., filed August 18,
2006).
|
|
4
|
.11
|
|
Deposit Agreement, dated
June 6, 1997, by and among First Industrial Realty Trust,
Inc., First Chicago Trust Company of New York and holders from
time to time of Series C Depositary Receipts (incorporated
by reference to Exhibit 4.2 of
Form 8-K
of First Industrial Realty Trust, Inc., dated June 6, 1997).
|
|
4
|
.12
|
|
Deposit Agreement, dated
May 27, 2004, by and among First Industrial Realty Trust,
Inc., EquiServe Inc. and EquiServe Trust Company, N.A. and
holders from time to time of Series F Depositary Receipts
(incorporated by reference to Exhibit 4.1 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.13
|
|
Deposit Agreement, dated
May 27, 2004, by and among First Industrial Realty Trust,
Inc., EquiServe Inc. and EquiServe Trust Company, N.A. and
holders from time to time of Series G Depositary Receipts
(incorporated by reference to Exhibit 4.2 of the
Form 10-Q
of First Industrial Realty Trust, Inc. for the fiscal quarter
ended June 30, 2004).
|
|
4
|
.14
|
|
Deposit Agreement, dated
January 13, 2006, by and among First Industrial Realty
Trust Inc., Computershare Shareholder Services, Inc. and
Computershare Trust Company, N.A., as depositary, and holders
from time to time of Series J Depositary Receipts
(incorporated by reference to Exhibit 10.1 of the
Form 8-K
of First Industrial Realty Trust, Inc., filed January 17,
2006).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.15
|
|
Deposit Agreement, dated
August 21, 2006, by and among First Industrial Realty Trust
Inc., Computershare Shareholder Services, Inc. and Computershare
Trust Company, N.A., as depositary, and holders from time to
time of Series K Depositary Receipts (incorporated by
reference to Exhibit 1.7 of the
Form 8-A
of First Industrial Realty Trust, Inc., filed August 18,
2006).
|
|
4
|
.16
|
|
Indenture, dated as of
May 13, 1997, between First Industrial, L.P. and First
Trust National Association, as Trustee (incorporated by
reference to Exhibit 4.1 of
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 First Industrial Realty Trust, Inc. filed
May 30, 1997).
|
|
4
|
.17
|
|
Supplemental Indenture No. 1,
dated as of May 13, 1997, between First Industrial, L.P.
and First Trust National Association as Trustee relating to
$150 million of 7.60% Notes due 2007 and
$100 million of 7.15% Notes due 2027 (incorporated by
reference to Exhibit 4.2 of
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 First Industrial Realty Trust, Inc. filed
May 30, 1997).
|
|
4
|
.18
|
|
Supplemental Indenture No. 2,
dated as of May 22, 1997, between First Industrial, L.P.
and First Trust National Association as Trustee relating to
$100 million of
73/8% Notes
due 2011 (incorporated by reference to Exhibit 4.4 of
Form 10-Q
of First Industrial, L.P. for the fiscal quarter ended
March 31, 1997).
|
|
4
|
.19
|
|
Supplemental Indenture No. 3
dated October 28, 1997 between First Industrial, L.P. and
First Trust National Association providing for the issuance
of Medium-Term Notes due Nine Months or more from Date of Issue
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated November 3, 1997).
|
|
4
|
.20
|
|
Indenture, dated as of
September 25, 2006, between First Industrial, L.P., as
Issuer, First Industrial Realty Trust, Inc., as Guarantor, and
U.S. Bank National Association, as Trustee (incorporated by
reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P., dated September 25, 2006).
|
|
4
|
.21
|
|
7.50% Medium-Term Note due 2017 in
principal amount of $100 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.19
of
Form 10-K
of First Industrial Realty Trust, Inc. for the year ended
December 31, 1997).
|
|
4
|
.22
|
|
Trust Agreement, dated as of
May 16, 1997, between First Industrial, L.P. and First Bank
National Association, as Trustee (incorporated by reference to
Exhibit 4.5 of
Form 10-QT
of First Industrial, L.P. for the fiscal quarter ended
March 31, 1997).
|
|
4
|
.23
|
|
Rights Agreement, dated as of
September 16, 1997, between First Industrial Realty Trust,
Inc. and First Chicago Trust Company of New York, as Rights
Agent (incorporated by reference to Exhibit 99.1 of
Form 8-A12B
of First Industrial Realty Trust, Inc. filed on
September 24, 1997).
|
|
4
|
.24
|
|
7.60% Notes due 2028 in
principal amount of $200 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.2
of
Form 8-K
of First Industrial, L.P. dated July 15, 1998).
|
|
4
|
.25
|
|
Supplemental Indenture No. 5,
dated as of July 14, 1998, between First Industrial, L.P.
and U.S. Bank Trust National Association, relating to
First Industrial, L.P.s 7.60% Notes due July 15,
2028 (incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated July 15, 1998).
|
|
4
|
.26
|
|
Supplemental Indenture No. 6,
dated as of March 19, 2001, between First Industrial, L.P.
and U.S. Bank Trust National Association, relating to
First Industrial, L.P.s 7.375% Notes due
March 15, 2011 (incorporated by reference to
Exhibit 4.16 of First Industrial L.P.s Annual Report
on
Form 10-K
for the year ended December 31, 2000).
|
|
4
|
.27
|
|
7.375% Note due in 2011 in
the principal amount of $200 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.15
of First Industrial, L.P.s Annual Report on
Form 10-K
for the year ended December 31, 2000).
|
|
4
|
.28
|
|
Supplemental Indenture No. 7
dated as of April 15, 2002, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 6.875% Notes due 2012 and
7.75% Notes due 2032 (incorporated by reference to
Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. dated April 4, 2002).
|
|
4
|
.29
|
|
Form of 6.875% Notes due in
2012 in the principal amount of $200 million issued by
First Industrial, L.P. (incorporated by reference to
Exhibit 4.2 of
Form 8-K
of First Industrial, L.P., dated April 4, 2002).
|
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
4
|
.30
|
|
Form of 7.75% Notes due 2032
in the principal amount of $50.0 million issued by First
Industrial, L.P. (incorporated by reference to Exhibit 4.3
of
Form 8-K
of First Industrial, L.P., dated April 4, 2002).
|
|
4
|
.31
|
|
Amendment No. 1, dated as of
February 25, 2004, to Rights Agreement, dated as of
September 16, 1997, between First Industrial Realty Trust,
Inc. and EquiServe Trust Company, N.A. (f/k/a First Chicago
Trust Company of New York), as Rights Agent (incorporated by
reference to Exhibit 4.23 of
Form 10-K
of First Industrial Realty Trust, Inc. for the year ended
December 31, 2003).
|
|
4
|
.32
|
|
Supplemental Indenture No. 8,
dated as of May 17, 2004, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 6.42% Notes due 2014 (incorporated
by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. filed May 27, 2004).
|
|
4
|
.33
|
|
Supplemental Indenture No. 9,
dated as of June 14, 2004, between First Industrial, L.P.
and U.S. Bank National Association, relating to First
Industrial, L.P.s 5.25% Senior Notes due 2009
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial, L.P. filed June 17, 2004).
|
|
4
|
.34
|
|
Supplemental Indenture
No. 10, dated as of January 10, 2006, relating to
5.75% Senior Notes due 2016, by and between the Operating
Partnership and U.S. Bank National Association
(incorporated by reference to Exhibit 4.1 of
Form 8-K
of First Industrial Realty Trust, Inc. filed January 11,
2006).
|
|
4
|
.35
|
|
Form of 4.625% Exchangeable Senior
Notes due 2011 in principal amount of $200 million issued
by First Industrial, L.P. (incorporated by reference to
Exhibit 4.2 of the current report on
Form 8-K
of First Industrial, L.P. dated September 25, 2006).
|
|
5
|
.1**
|
|
Opinion of Cahill
Gordon & Reindel
llp,
counsel to the registrants, as to the legality of the securities
being registered.
|
|
5
|
.2**
|
|
Opinion of McGuireWoods LLP,
counsel to the registrants, as to the legality of the securities
being registered.
|
|
8
|
.1**
|
|
Opinion of Cahill
Gordon & Reindel
llp,
counsel to the registrants, as to certain tax matters.
|
|
10
|
.1
|
|
Eleventh Amended and Restated
Limited Partnership Agreement of First Industrial, L.P. dated
August 21, 2006 (incorporated by reference to
Exhibit 10.2 of the current report on
Form 8-K
of First Industrial Realty Trust, Inc. dated August 21,
2006).
|
|
12
|
.1
|
|
Computation of ratios of earnings
to fixed charges and preferred stock dividends of First
Industrial Realty Trust, Inc. (incorporated by reference to
Exhibit 12.1 of First Industrial Realty Trust Inc.s
Annual Report on
Form 10-K
for the year ended December 31, 2006).
|
|
12
|
.2
|
|
Computation of ratios of earnings
to fixed charges of First Industrial, L.P. (incorporated by
reference to Exhibit 12.1 of First Industrial, L.P.s
Annual Report on
Form 10-K
for the year ended December 31, 2006).
|
|
23
|
.1**
|
|
Consent of PricewaterhouseCoopers
LLP.
|
|
23
|
.2**
|
|
Consents of Cahill
Gordon & Reindel
llp
(included in Exhibits 5.1 and 8.1).
|
|
23
|
.3**
|
|
Consents of McGuireWoods LLP
(included in Exhibit 5.2).
|
|
24
|
.1**
|
|
Power of Attorney (included on the
signature pages hereto).
|
|
25
|
.1
|
|
Statement of eligibility of
Trustee on
Form T-1
(incorporated by reference to Exhibit 25.1 of First
Industrial L.P.s
Form S-3
filed on August 2, 2004).
|
|
|
|
* |
|
To be filed either by amendment or as an exhibit to an Exchange
Act report of one or more of the registrants and incorporated
herein by reference. |
|
** |
|
Filed herewith. |