1
EXHIBIT 10.54
SEVENTH AMENDMENT TO
SECOND AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT OF
FIRST INDUSTRIAL, L.P.
The undersigned, being the sole general partner of First Industrial, L.P.
(the "Partnership"), a limited partnership formed under the Delaware Revised
Uniform Limited Partnership Act and pursuant to the terms of that certain
Second Amended and Restated Limited Partnership Agreement dated June 30, 1994
(as amended by amendments thereto dated November 17, 1995, March 20, 1996, June
28, 1996, September 13, 1996, September 30, 1996 and November 14, 1996, the
"Partnership Agreement"), does hereby amend the Partnership Agreement as
follows:
Capitalized terms used but not defined in this Seventh Amendment shall
have the same meanings that are ascribed to them in the Partnership Agreement.
1. Amendment of Partnership Agreement. The Partnership Agreement is
hereby amended, effective immediately prior to the admissions referred to in
Section 2 below, as follows:
(a) A new Exhibit 1C and a new Exhibit 1D, in the respective forms
of Exhibit 1C and Exhibit 1D attached hereto, are hereby added to the
Partnership Agreement.
(b) Section 1.1 is amended by adding each of the following
definitions in the appropriate alphabetic location:
AGGREGATE PROTECTED AMOUNT: With respect to the Contributor
Partners, as a group, the aggregate balances of the Protected
Amounts, if any, of the Contributor Partners, as determined on the
date in question.
CONTRIBUTOR PARTNER(S): That or those Limited Partner(s)
listed as Contributor Partner(s) on Exhibit 1D attached hereto and
made a part hereof, as such Exhibit may be amended from time to
time by the General Partner, whether by express amendment to this
Partnership Agreement or by execution of a written instrument by
and between any additional Contributor Partner(s) being affected
thereby and the General Partner, acting on behalf of the
Partnership and without the prior consent of the Limited Partners
(whether or not Contributor Partners other than the Contributor
Partner(s) being affected thereby). For purposes hereof, any
successor, assignee, or transferee of the Interest of a Contributor
Partner (other than the Partnership in connection with a redemption
pursuant to Article IX hereof) shall be considered a Contributor
Partner for purposes hereof.
2
LB CLOSING DATE: January 31, 1997.
LB PARTNERS: The persons identified on Exhibit 1C hereto,
following their admission to the Partnership as Additional Limited
Partners.
LB UNITS: The Partnership Units issued to the LB Partners in
connection with the acquisition by the Partnership of certain
properties on the LB Closing Date.
PROTECTED AMOUNT: With respect to any Contributor Partner, the
amount set forth opposite the name of such Contributor Partner on
Exhibit 1D attached hereto and made a part hereof, as such Exhibit
may be modified from time to time by an amendment to the
Partnership Agreement or by execution of a written instrument by
and between the Contributor Partner being affected thereby and the
General Partner, acting on behalf of the Partnership and without
the prior written consent of the Limited Partners (whether or not
Contributor Partners other than the Contributor Partner being
affected thereby).
RECOURSE LIABILITIES: The amount of liabilities owed by the
Partnership (other than nonrecourse liabilities and liabilities to
which Partner Nonrecourse Deductions are attributable in accordance
with Treasury Regulations Section 1.704-2(i)) owed by the
Partnership."
THRESHOLD PERCENTAGE: A percentage equal to 85% on the LB
Closing Date and thereafter adjusted upwards (but not downwards)
immediately prior to each solicitation of any vote of, or the
seeking of any consent, approval or waiver from, the Limited
Partners generally, to the sum of (i) 85% and (ii) the number of
percentage points equal to the positive difference, if any, between
(a) the aggregate Percentage Interest represented by the LB Units
immediately following the LB Closing Date and (b) the aggregate
Percentage Interest represented by the LP Units immediately prior
to any such solicitation. For example, if on the LB Closing Date
the LB Units represent a 10% aggregate Percentage Interest, and if
immediately prior to a solicitation the Threshold Percentage is 85%
and the aggregate Percentage Interest represented by the LB Units
is 8%, the Threshold Percentage would be increased to 87% (85% =
(10% - 8%)).
VOTING TERMINATION DATE: The first date after the LB Closing
Date on which either (i) the General Partner holds 90% or more of
all Partnership Units or ii) the aggregate number of Partnership
Units held by the General Partner and the LB Partners is less than
the product of the Threshold Percentage and the total number of
Partnership Units then outstanding.
3
(c) Section 5.2(A) of the Partnership Agreement is hereby amended to
read as follows:
"(A) PROFITS. After giving effect to the special
allocations, if any, provided in Section 5.2(C) and (D),
Profits in each Fiscal Year shall be allocated in the
following order:
(1) First to the General Partner until the cumulative
Profits allocated to the General Partner under this Section
5.2(A)(1) equal the cumulative Losses allocated to such
Partner under Section 5.2(B)(5);
(2) Second, to each Partner in proportion to the
cumulative Losses allocated to such Partner under Section
5.2(B)(4), until the cumulative Losses allocated to such
Partner under this Section 5.2(A)(2) equal the cumulative
Losses allocated to such partner under Section 5.2(B)(4);
(3) Third, to the General Partner in proportion to the
cumulative Losses allocated to the General Partner under
this Section 5.2(A)(3) equal the cumulative Losses allocated
to such Partner under Section 5.2(B)(3);
(4) Fourth, to each Partner in proportion to the
cumulative Losses allocated to such Partner under Section
5.2(B)(2), until the cumulative Profits allocated to such
Partner under this Section 5.2(A)(4) equal the cumulative
Losses allocated to such Partner under Section 5.2(B)(2);
(5) Fifth, to each Partner in proportion to the
cumulative Losses allocated to such Partner under Section
5.2(B)(1), until the cumulative Profits allocated to such
Partner under this Section 5.2(A)(5) equal the cumulative
Losses allocated to such partner under Section 5.2(B)(1);
and
(6) then, the balance, if any, to the Partners in
proportion to their respective Partnership Interests."
(d) Section 5.2(B) of the Partnership Agreement is hereby amended to
read as follows:
"(B) LOSSES. After giving effect to the special
allocations, if any, provided in Section 5.2(C) and (D),
Losses in each Fiscal Year shall be allocated in the
following order of priority:
4
(a) First, to the Partners, in proportion to their
respective Partnership Interests, but not in excess of the
positive Capital Account balance of any Partner prior to the
allocation provided for in this Section 5.2(B)(1);
(b) Second, to the Partners with positive Capital
Account balances prior to the allocation provided for in
this Section 5.2(B)(2), in proportion to the amount of such
balances;
(c) Third, to the General Partner in an amount equal to
the excess of (i) the amount of Recourse Liabilities over
(ii) the Aggregate Protected Amount;
(d) Fourth, to and among the Contributor Partners, in
accordance with their respective Protected Amounts, until
such time as the Contributor Partners have been allocated an
aggregate amount of Loss pursuant to this Section 5.2(B)(4)
equal to the Aggregate Protected Amount; and
(e) Thereafter, to the General Partner;
provided, however, (i) that, from and following the first
date upon which a Contributor Partner is no longer a
Partner of the Partnership, the provisions of this Section
5.2(B) shall be null, void and without further force and
effect with respect to such Contributor Partner; (ii) that,
this Section 5.2(B) shall control, notwithstanding any
reallocation or adjustment of taxable income, loss or other
items by the Internal Revenue Service or any other taxing
authority; provided, however, that neither the Partnership
nor the General Partner (nor any of their respective
affiliates) is required to indemnify any Contributor Partner
(or its affiliates) for the loss of any tax benefit
resulting from any reallocation or adjustment of taxable
income, loss or other items by the Internal Revenue Service
or other taxing authority; and (iii) that, during such
period as there are Contributor Partners in the Partnership,
the provisions of Section 5.2(B)(4) shall not be amended in
a manner which adversely affects the Contributor Partners
(without the consent of each Contributor Partner."
(d) Section 10.3(A) of the Partnership Agreement is hereby amended to
delete the sentence beginning "If any Partner has a deficit balance . . .
." and substitute the following language therefor:
5
"If any Contributor Partner has a deficit balance in its
Capital Account (after giving effect to all contributions
(without regard to this Section 10.3(A)), distributions and
allocations), each such Contributor Partner shall contribute
to the capital of the Partnership an amount equal to its
respective deficit balance, such obligation to be satisfied
within ninety (90) days following the liquidation and
dissolution of the Partnership in accordance with the
provisions of this Article X hereof. Conversely, if any
Partner other than a Contributor Partner has a deficit
balance in its Capital Account (after giving effect to all
contributions (without regard to this Section 10.3(A)),
distributions and allocations), such Partner shall have no
obligation to make any contribution to the capital of the
Partnership. Any deficit restoration obligation pursuant to
the provisions hereof shall be for the benefit of creditors
of the Partnership or any other Person to whom any debts,
liabilities, or obligations are owed by (or who otherwise
has any claim against) the Partnership or the general
partner, in its capacity as General Partner of the
Partnership."
(e) A new Section 11.3 is hereby added to the Partnership Agreement
to read as follows:
"SECTION 11.3 VOTING OF LB UNITS. On any matter on
which the Limited Partners shall be entitled to vote,
consent or grant an approval or waiver, following the
admissions of the LB Partners to the Partnership as
Additional Limited Partners and through the Voting
Termination Date, each holder of the LB Units shall be
deemed (i) in connection with any matter submitted to a
vote, to have cast all votes attributable to such holder's
LB Units in the same manner as the votes attributable to the
Units held by the General Partner are cast on such matter,
and (ii) in connection with any consent, approval or waiver,
to have taken the same action as the General Partner shall
have taken with respect to its Units in connection
therewith. If the General Partner shall not have the right
to vote, consent or grant an approval or waiver on a matter,
each holder of LB Units shall vote or act as directed by the
General Partner."
(f) A new Section 12.3(D) is hereby added to the Partnership
Agreement to read as follows:
"(D) Each LB Partner hereby irrevocably appoints and
empowers the General Partner and the Liquidator, in the event of
a liquidation, and each of their authorized officers and
attorneys-in-fact with full power of substitution, as the true
and lawful agent and attorney-in-fact of such LB Partner with
full power and
6
authority in the name, place and stead of such LB Partner to take
such actions (including waivers under the Partnership Agreement) or
refrain from taking such action as the General Partner reasonably
believes are necessary or desirable to achieve the purposes of
Section 11.3 of the Partnership Agreement."
2. Additional Limited Partners. The Persons identified on Schedule 1
hereto are hereby admitted to the Partnership as Additional Limited Partners
owning the number of Units and having made the Capital Contributions set forth
on such Schedule 1. Such persons hereby adopt the Partnership Agreement. The
General Partner hereby consents to the assignment of all Units of the
Additional Limited Partners identified as transferors on Schedule 2 hereto to
their equity owners identified as transferees and in the amounts set forth on
such Schedule 2, and to the admission to the Partnership as Substituted Limited
Partners of such transferees, and such transferees are hereby admitted to the
Partnership as Substituted Limited Partners.
3. Schedule of Partners. Exhibit 1B to the Partnership Agreement is
hereby deleted in its entirety and replaced by Exhibit 1B hereto, which
identifies the Partners following consummation of the transactions referred to
in Section 2 hereof.
4. Ratification. Except as expressly modified by this Seventh Amendment,
all of the provisions of the Partnership Agreement are affirmed and ratified
and remain in full force and effect.
Dated: January 31, 1997
FIRST INDUSTRIAL REALTY TRUST, INC., as
sole General Partner of the Partnership
By: /s/ Michael T. Tomasz
---------------------------------------
Name: Michael T. Tomasz
Title: Chief Executive Officer and
President
7
EXHIBIT 1B
SCHEDULE OF PARTNERS
GENERAL PARTNER NUMBER OF UNITS
- --------------- ---------------
First Industrial Realty Trust, Inc. 30,043,617
LIMITED PARTNERS
Daniel R. Andrew, TR of the Daniel R.
Andrew Trust UA Dec 29 92 137,489
BK Columbus Venture 24,789
John E. de B Blockey, TR of the John E.
De B Blockey Trust 8,187
Michael W. Brennan 7,587
Henry D. Bullock & Terri D. Bullock &
Shawn Stevenson TR of the Bullock Childrens
Education Trust UA Dec 20 94
FBO Benjamin Dure Bullock 770
8
LIMITED PARTNERS NUMBER OF UNITS
- ---------------- ---------------
Henry D. Bullock & Terri D. Bullock &
Shawn Stevenson TR of the Bullock Childrens
Education Trust UA Dec 20 94
FBO Christine Laurel Bullock 770
Edward Burger 9,261
Henry D. Bullock & Terri D. Bullock TR
of the Henry D. & Terri D. Bullock
Trust UA Aug 28 92 12,551
Michael G Damone, TR of the Michael G.
Damone Trust UA Nov 4 69 144,296
Robert L. Denton 6,286
Henry E. Dietz Trust UA Jan 16 81 36,476
W. Allen Doane TR of the W. Allen
Doane Trust UA May 31, 91 4,416
Timothy Donohue 2,000
Farlow Road Associates Limited Partnership 2,751
Thelma C. Gretzinger Trust 450
Clay Hamlin & Lynn Hamlin JT TEN WROS 15,159
9
LIMITED PARTNERS NUMBER OF UNITS
- ----------------- ---------------
Highland Associates Limited Partnership 69,039
Robert W. Holman Jr. 150,134
Steven B. Hoyt 250,000
Frederick K. Ito 3,880
Michael W. Jenkins 3,831
Peter Kepic 9,261
Paul T. Lambert 39,737
Lambert Investment Corporation 13,606
LGR Investment Fund Ltd 22,556
Duane Lund 13,617
Eileen Millar 2,880
Linda Miller 2,000
Peter Murphy 56,184
10
LIMITED PARTNERS NUMBER OF UNITS
- ---------------- ---------------
Anthony Muscatello 81,654
North Star Associates Limited Partnership 19,333
Arden O'Connor 63,845
Peter O'Connor 66,181
Shidler Equities LP 254,541
Eduardo Paneque 2,000
Partridge Road Associates Limited Partnership 2,751
James C. Reynolds 38,697
Shadeland Associates Limited Partnership 42,976
Shadeland Corporation 4,442
Jay H. Shidler 65,118
Jay H. Shidler & Wallette A. Shidler
TEN ENT 1,223
11
LIMITED PARTNERS NUMBER OF UNITS
- ---------------- ---------------
Michael B. Slade 2,829
Kevin Smith 13,571
Robert Stein 56,778
S. Larry Stein 56,778
Jonathan Stott 130,026
Michael T. Tomasz 23,868
Mark S. Whiting 25,206
Holman/Shidler Investment Corporation 22,079
Joseph Dresner 149,531
The Milton Dresner Revocable Trust
dated October 22, 1976 149,531
The Jack Friedman Revocable Living Trust
dated March 23, 1978 26,005
Jernie Holdings Corp. 180,499
12
LIMITED PARTNERS NUMBER OF UNITS
- ---------------- ---------------
Fourbur Family Co., L.P. 50,478
Fourbur Co., L.L.C. 27,987
Jerome Lazarus 18,653
Constance Lazarus 417,961
Susan Burman 523,155
Judith Draizin 331,742
Jan Burman 18,653
Danielle Draizin 6,538
Heather Draizin 6,538
Jason Draizin 13,078
13
EXHIBIT 1C
LB PARTNERS
Jernie Holdings Corp., a New York corporation
Fourbur Family Co., L.P., a New York limited partnership
Fourbur Co., L.L.C., a New York limited liability company
Jerome Lazarus
Constance Lazarus
Susan Burman
Judith Draizin
Jan Burman
Judith Draizin as custodian
under the NYUGMA until
the age of 21 for Danielle Draizin
Judith Draizin as custodian
under the NYUGMA until
the age of 21 for Heather Draizin
Judith Draizin as custodian
under the NYUGMA until
the age of 21 for Jason Draizin
14
EXHIBIT 1D
ADDITIONAL
LIMITED PARTNERS TRANSFEREE
PROTECTED PARTNER PROTECTED
ADDITIONAL LIMITED PARTNERS AMOUNT TRANSFEREE PARTNER AMOUNT
--------------------------- ---------------- ------------------ -----------------
1 Lazarus Burman Associates 100,000 Jerome Lazarus 100,000
Jan Burman 0
2 Jan Burman Management Company 200,000 Jerome Lazarus 100,000
Jan Burman 100,000
3 Jerry Lazarus Management Co. 2,500,000 Jerome Lazarus 1,260,394
Jan Burman 1,239,606
4 Connie Lazarus Management Company 600,000 Jerome Lazarus 305,792
Jan Burman 294,208
5 Red Ground Co. 4,000,000 Jerome Lazarus 2,307,610
Jan Burman 1,692,390
6 Surrey Company 6,700,000 Jerome Lazarus 3,350,000
Jan Burman 3,350,000
7 Jernie Investors Co. 900,000 Constance Lazarus 720,000
Susan Burman 180,000
Judith Draizin 0
Jernie Holdings Corp. 0
8 109 Industrial Co., LLC 4,300,000 Jerome Lazarus 4,228,630
Jan Burman 71,370
9 LB Management Co. 5,600,000 Jerome Lazarus 5,507,053
Jan Burman 92,947
10 JD-U Co. 1,200,000 Judith Draizin 1,200,000
11 Laz-Bur Co. 900,000 Constance Lazarus 449,990
Susan Burman 450,010
---------- ----------
Total 27,000,000 27,000,000
========== ==========
15
EXHIBIT 1D
TOTAL BY TRANSFEREE PARTNER PROTECTED AMOUNT
--------------------------- ----------------
1 Jan Burman (6,300,000)
2 Jerome Lazarus (17,000,000)
3 Constance Lazarus (3,600,000)
4 Jernie Holdings Corp. (100,000)
-----------
Total (27,000,000)
===========
16
SCHEDULE 1
ADDITIONAL
LIMITED PARTNERS NUMBER OF UNITS CAPITAL CONTRIBUTION
---------------- --------------- --------------------
Lazarus Burman Associates
Jan Burman Management Co.
Jerry Lazarus Management Co.
Connie Lazarus Management Co.
Red Ground Co.
Surrey Co.
Jernie Investors Co.
109 Industrial Co., LLC
L.B. Management Co.
Judith Draizin
Susan Burman
Laz-Bur Co.
SJB Realty Co.
C 4-6-7 Co.
C 3-5 Co.
290 Industrial Co., LLC
185 Price Parkway, LLC
116 Lehigh Industrial Co. 1,595,282 $47,858,460
========= ===========
17
SCHEDULE 2
TRANSFEROR+ TRANSFEREE NUMBER OF UNITS CAPITAL ACCOUNT
- ---------- ---------- --------------- ---------------
Jerome Lazarus 18,653 $ 559,590
Jan Burman 18,653 559,590
Constance Lazarus 417,961 12,538,830
Susan Burman 523,155 15,694,650
Judith Draizin 331,742 9,952,260
Jernie Holdings Corp. 180,499 4,414,970
Fourbur Co., LLC 27,987 839,610
Jason Draizin* 13,078 392,340
Heather Draizin* 6,538 196,140
Danielle Draizin* 6,538 196,140
Fourbur Family Co., LLC 50,478 1,514,340
--------- -----------
1,595,282 $47,858,460
========= ===========
- - With respect to each transferee, one or more of the Additional Limited
Partners reflected on Schedule 1.
* Under the New York Uniform Gift to Minors Act until the age of 21, Judith
Draizin as custodian.