Exhibit 10.4
FIFTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DUKE REALTY LIMITED PARTNERSHIP
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THIS FIFTH AMENDMENT TO THE AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP (this "Amendment") is made
effective as of October 1, 1997 by and among DUKE REALTY
INVESTMENTS, INC. (the "General Partner"), DMI Partnership
("DMI"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
PROPERTIES, INC., a Missouri corporation ("LWP"), MARYVILLE LAND
PARTNERSHIP, a Missouri general partnership ("MLP"), MARYVILLE
CENTRE ASSOCIATES VI, a Missouri general partnership ("MCA VI"),
MARYVILLE CENTRE ASSOCIATES VIII, a Missouri general partnership
("MCA VIII"), ▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee, BIRCH ▇. ▇▇▇▇▇▇▇, Trustee,
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (LWP, MLP, MCA VI, MCA VIII, ▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ are collectively referred
to as the "▇▇▇▇ Group"). All capitalized terms used but not
defined in this Amendment shall have the meanings respectively
assigned to them in the Partnership Agreement (as hereinafter
defined).
RECITALS:
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A. The Partnership is governed by that certain Amended
and Restated Agreement of Limited Partnership, dated as of
October 4, 1993, as amended to date (the "Partnership
Agreement").
B. Pursuant to that certain Contribution and Exchange
Agreement by and among ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, Inc., D/B/A
▇▇▇▇ Properties, Duke Realty Limited Partnership, and Duke Realty
Investments, Inc. and other parties, dated as of October 1, 1997,
the ▇▇▇▇ Group contributed to the capital of the Partnership
certain assets, subject to certain liabilities, in exchange for
ownership interests in the Partnership.
C. The ▇▇▇▇ Group wishes to be admitted as Additional
Limited Partners of the Partnership.
D. This Amendment is made pursuant to Section
9.05(a)(iii) and Section 9.05(b) of the Partnership Agreement.
E. The General Partner, DMI and ▇▇▇▇▇▇ collectively
own in excess of 90% of the outstanding Units.
F. All of the parties desire to enter into this
Amendment for the purpose of setting forth the admission of the
▇▇▇▇ Group to the Partnership as Additional Limited Partners and
certain amendments to the Partnership Agreement as hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as
follows:
1. The ▇▇▇▇ Group is hereby admitted as Additional
Limited Partners of the Partnership.
2. The Partnership Agreement is hereby amended as follows:
SECTION 1.04. DEFINITIONS.
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Section 1.04 is hereby amended by inserting the
following new definitions:
"▇▇▇▇ Contribution and Exchange Agreement"
means that certain Contribution and Exchange Agreement by and
among ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, Inc., D/B/A ▇▇▇▇
Properties, Duke Realty Limited Partnership, and Duke Realty
Investments, Inc. and other parties dated as of October 1,
1997.
"▇▇▇▇ Group" means, collectively, ▇▇▇▇▇▇▇▇▇-
▇▇▇▇▇▇ Properties, Inc., Maryville Land Partnership,
Maryville Center Associates VI, Maryville Center Associates
VIII, ▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee, Birch ▇. ▇▇▇▇▇▇▇, Trustee and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"▇▇▇▇ Units" means one or more Units issued by
the Partnership as a class that: (1) are distributed to the
▇▇▇▇ Group pursuant to section 2.1(c) of the ▇▇▇▇
Contribution and Exchange Agreement; (2) are entitled to the
distribution of certain refinancing proceeds pursuant to
Section 4.15(b); and (3) after the distribution pursuant to
Section 4.15(b), have all the same rights, powers, and
privileges as Units.
"Restructured Mortgage" means that certain
refinancing mortgage in the principal amount of
$20,000,000.00, which is subject to a certain liability
assumption agreement executed by the ▇▇▇▇ Group, a copy of
which is attached as an exhibit to the ▇▇▇▇ Contribution and
Exchange Agreement.
SECTION 2.03(A). CLASSIFICATION AND OWNERSHIP OF UNITS.
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Section 2.03(a) is hereby amended by deleting the first
sentence thereof and inserting the following in lieu thereof:
The Units shall all be of a single class unless and until the
Partnership issues Units of one or more additional classes
pursuant to Article IV.
ARTICLE IV. CAPITAL CONTRIBUTIONS, PROFITS AND LOSSES AND DISTRIBUTIONS.
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Article IV is hereby amended by revising Section 4.03 and adding
Section 4.15 as follows:
SECTION 4.03. DISTRIBUTABLE CASH.
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Section 4.03 is hereby amended by deleting the first sentence thereof
and inserting the following in lieu thereof:
Except as otherwise provided in this Article IV,
distributions of Distributable Cash shall be made when
declared by the General Partner in its sole discretion to the
Partners who are Partners on the Partnership Record Date with
respect to such Distribution in accordance with their
respective Percentage Shares on such Partnership Record Date;
provided that in no event may a Partner receive a
Distribution of Distributable Cash with respect to a Unit if
such Partner is entitled to receive a Distribution out of
such Distributable Cash with respect to a REIT Share for
which such Unit has been exchanged.
SECTION 4.15. ▇▇▇▇ UNITS.
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(a) Pursuant to subsection (a) of Section 4.02,
the Partnership hereby issues ▇▇▇▇ Units in the aggregate amount
of 1,925,337 to the ▇▇▇▇ Group in exchange for the contribution
to the capital of the Partnership pursuant to the ▇▇▇▇
Contribution and Exchange Agreement of assets with an Agreed
Value in the aggregate of $60,817,142.20. Immediately following
the capital contributions described in this subsection and the
distributions pursuant to subsection (b) of this Section, the
Capital Accounts and the number of ▇▇▇▇ Units owned by each
member of the ▇▇▇▇ Group is as follows:
Capital ▇▇▇▇
Accounts Units
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▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, Inc.: $ 6,424,625.74 303,048
Maryville Land Partnership: 26,523,604.91 1,251,114
Maryville Center Associates VI: 4,340,250.23 204,729
Maryville Center Associates VIII: 1,858,341.54 87,658
▇▇▇▇▇▇ ▇. ▇▇▇▇: 815,245.35 38,455
Birch ▇. ▇▇▇▇▇▇▇: 779,383.24 36,763
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇: 75,691.40 3,570
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TOTAL $40,817,142.41 1,925,337
(b) Notwithstanding Section 4.03 or any other
provision of this Agreement, immediately after the effective time
of the admission of the ▇▇▇▇ Group as Partners, each holder of
▇▇▇▇ Units shall be distributed an amount of cash equal to
$10.38779 for each ▇▇▇▇ Unit held, for an aggregate Distribution
of $20,000,000.00, in accordance with the schedule attached
hereto ("Schedule A"). Pursuant to Notice 89-35, 1989-1 C.B.
675, for purposes of applying the interest tracing rules of
Treasury Regulations Section 1.163-8T, the Partnership shall
treat the amount distributed to each member of the ▇▇▇▇ Group as
being made from the proceeds of the Restructured Mortgage.
Interest expense on such proceeds shall be allocated in
accordance with the general allocation rules of V.A of Notice 89-
35. Notwithstanding any other provision of this Agreement, the
General Partner shall not be liable for, nor be required to
restore or make a capital contribution on account of, any deficit
Capital Account balance to the extent that the proceeds of any
such restoration or capital contribution would be used to pay the
Restructured Mortgage. Furthermore, in the event that the
General Partner becomes liable for and is required to pay,
directly or indirectly, all or any portion of the Restructured
Mortgage from its separate assets, each member of the ▇▇▇▇ Group
shall upon demand pay to the General Partner an amount of cash in
immediately available funds equal to the amount paid by the
General Partner on account of the Restructured Mortgage
multiplied by a fraction, the numerator of which is the number of
▇▇▇▇ Units issued to such member of the ▇▇▇▇ Group pursuant to
Section 4.15(a) hereof and the denominator of which is the number
of ▇▇▇▇ Units issued to all members of the ▇▇▇▇ Group pursuant to
Section 4.15(a) hereof.
3. This Amendment may be executed in any number of
counterparts with the same effect as if all of the parties had
signed the same document. All counterparts shall be construed
together and shall constitute one agreement.
4. Except as amended hereby, the Partnership Agreement
shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment as of the day and year first above written.
DUKE REALTY INVESTMENTS, INC.,
General Partner,
Date: By: /s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Executive Officer
Date: /s/
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: DMI PARTNERSHIP
----------------- By: Duke Management, Inc., General Partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Date:
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▇▇▇▇▇▇ ▇. ▇▇▇▇, TRUSTEE
Date:
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BIRCH ▇. ▇▇▇▇▇▇▇, TRUSTEE
Date:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ PROPERTIES, INC.
Date: By:
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Attest: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
MARYVILLE LAND PARTNERSHIP
By: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, Inc.,
its General Partner
Date: By:
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Attest: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
MARYVILLE CENTRE ASSOCIATES VI
By: Maryville Land Partnership,
its General Partner
By: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Properties, Inc., its
General Partner
Date: By:
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Attest: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
MARYVILLE CENTRE ASSOCIATES VIII
By: Maryville Land Partnership,
its General Partner
By: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, Inc.,
its General Partner
Date: By:
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Attest: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Secretary
SCHEDULE A
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DISTRIBUTION OF REFINANCING PROCEEDS
TO ▇▇▇▇ GROUP PURSUANT TO SECTION 4.03(b)
OF THE PARTNERSHIP AGREEMENT
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DISTRIBUTION OF
▇▇▇▇ GROUP REFINANCING PROCEEDS
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▇▇▇▇▇▇ ▇. ▇▇▇▇ 399,462.24
BIRCH ▇. ▇▇▇▇▇▇▇ 381,890.15
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 37,088.05
MARYVILLE LAND PARTNERSHIP 12,996,306.62
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ PROPERTIES, INC. 3,148,003.69
MARYVILLE CENTRE ASSOCIATES VI 2,126,680.10
MARYVILLE CENTRE ASSOCIATES VIII 910,569.15
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TOTAL $ 20,000,000.00
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