Exhibit 10.7
EIGHTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DUKE REALTY LIMITED PARTNERSHIP
In consideration of the issuance by Duke Realty Limited
Partnership (the "Partnership") to Towne Investment Co., an Ohio
limited partnership ("TIC") of Units in the Partnership as
memorialized in TIC's execution of an Acknowledgement by
Distributee on January 1, 1994, TIC has agreed to indemnify Duke
Realty Investments, Inc., an Indiana corporation (the "General
Partner") from and against certain recourse indebtedness of the
Partnership effective as of the date on which non-recourse
indebtedness secured by the contribution of property to the
Partnership by TIC's predecessor-in-interest was repaid.
Accordingly, the undersigned, as the General Partner and Partners
(including TIC and the General Partner) holding more than ninety
percent (90%) of the outstanding Units of Duke Realty Limited
Partnership, hereby amend the Partnership's Amended and Restated
Agreement of Limited Partnership, as heretofore amended (the
"Partnership Agreement"), pursuant to Section 9.05(b) of the
Partnership Agreement, to add a new Section 3.15 to read as
provided in Exhibit A hereto. In all other respects, the
Partnership Agreement shall continue in full force and effect as
amended hereby. Any capitalized terms used in this Amendment and
not defined herein have the meanings given to them in the
Partnership Agreement.
This Amendment may be executed in any number of counterparts
and by separate signature pages, and all of such counterparts and
signature pages shall for all purposes constitute an agreement
binding on the parties hereto notwithstanding that all parties
are not signatory to the same counterpart or signature page.
This Amendment shall in all respects be governed by and
construed in accordance with the laws of the State of Indiana.
Executed as of February 18, 1999 but effective as of
12:01 a.m., September 30, 1998.
DUKE REALTY INVESTMENTS, INC., as
General Partner, as a holder of
Units and as attorney-in-fact
pursuant to Section 9.19 of the
Partnership Agreement for all
holders of Units who have consented
in writing to this Amendment
By:
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Xxxxxx X. Xxxxx
Executive Vice President,
Chief Administrative Officer
and Treasurer
DMI PARTNERSHIP
By:
Duke Management, Inc., general
partner
By:
---------------------------
Xxxxxx X. Xxxx, Xx.
Executive Vice President, Chief
Financial Officer and Secretary
TOWNE INVESTMENT CO., an Ohio limited
partnership
By:
---------------------------------
Xxxx X. Xxxxx, General Partner
By:
---------------------------------
Xxxxxx Xxxxxxxxx, General Partner
EXHIBIT A
SECTION 3.15. INDEMNIFICATION OF CERTAIN RECOURSE DEBT.
(a) Definitions. As used in this Section 3.15, the following
terms shall have the meanings indicated:
"Claim Percentage" for TIC means 100%; provided, however,
in the event any other limited partner of the Partnership is
an indemnitor with respect to an Indemnity Claim, the Claim
Percentage for TIC with respect to such Indemnity Claim
shall be the percentage determined by dividing TIC's Maximum
Liability by the maximum liability with respect to such
Indemnity Claim of all indemnitors of the related Recourse
Debt.
"Indemnity Claim" means any demand made to the General
Partner by any holder of all or any part of the Recourse
Debt for payment of all or any part thereof.
"Indemnity Claim Amount" means, with respect to an
Indemnity Claim, the amount determined as prescribed in
subsection (c)(iv) of this section.
"Indemnity Credit" for TIC means, at any time, all
payments made prior to such time by TIC under subsection (b)
of this section.
"Maximum Liability" for TIC means $3,700,000.
"Recourse Debt" means any and all indebtedness of the
Partnership not evidenced by a non-recourse note.
"TIC" means Towne Investment Co., an Ohio limited
partnership, which is a Limited Partner as of September 30,
1998.
(b) Indemnification. Upon and subject to the terms and
provisions of this Section 3.15, TIC agrees to indemnify the
General Partner from and against liability for a portion of each
Indemnity Claim Amount (regardless of whether actually paid by
the General Partner) equal to TIC's Claim Percentage of the
Indemnity Claim Amount, subject, however, to the limitation that
the maximum amount required at anytime to be indemnified
hereunder by TIC shall not exceed the TIC Maximum Liability
reduced (not below zero) by TIC's Indemnity Credit at such time.
(c) Indemnification Procedure.
(i) The General Partner shall not pay any portion
of any Recourse Debt prior to (A) giving TIC written
notice of the related Indemnity Claim and the
opportunity to defend against the Indemnity Claim as
provided in this subsection (c) and (B) the
determination of the related Indemnity Claim Amount as
provided in subsection (c)(iv) below.
(ii) Whenever an Indemnity Claim arises, the General
Partner shall promptly give written notice to TIC
setting forth in reasonable detail, to the extent then
available, the facts concerning the Indemnity Claim.
(iii) TIC shall be entitled, at its sole expense, to
assume the entire defense of each Indemnity Claim with
counsel selected by TIC.
(iv) If TIC chooses to defend against an Indemnity
Claim, the related Indemnity Claim Amount shall be the
amount specified in a written settlement agreement with
the claimant that is approved in writing by the
Indemnitors or in an order of a court of competent
jurisdiction that is not further appealable. If TIC
chooses not to defend against an Indemnity Claim, the
related Indemnity Claim Amount shall be the amount of
the Indemnity Claim specified in a written settlement
agreement between the General Partner and the claimant
or in an order of a court of competent jurisdiction
that is not further appealable.
(d) Partnership Indemnification of TIC. Subject to subsection
(e) of this section, the Partnership shall indemnify TIC against
all amounts required to be paid by TIC under the terms of this
Section 3.15.
(e) Limitation on the Partnership Obligations. TIC agrees for
the benefit of the General Partner, and any successor general
partner of the Partnership, that enforcement by TIC of (i) the
Partnership's indemnity obligation under subsection (d) or (ii)
the Partnership's obligation under any other document to assume,
pay, or indemnify against any Recourse Debt shall be subject to
the limitation that (A) no Partner of the Partnership shall be
personally liable to TIC for performance by the Partnership of
any such obligation, (B) TIC shall not be entitled to seek or
obtain any personal money or other judgment against any Partner
of the Partnership for the Partnership's default in performance
of any such obligation, and (C) any such judgment obtained
against the Partnership shall only be enforceable by TIC against
the property and assets of the Partnership.
(f) Assumption of TIC's Obligations. Upon the distribution of
all the Units held by TIC to its partners, the obligations of TIC
pursuant to this Section 3.15 shall be assigned to and assumed by
the applicable partners in proportion to the number of Units
distributed to each such partner, and each such partner shall
become an indemnitor under this Section 3.15, and all obligations
of TIC that are not then due and payable shall terminate and TIC
shall be deemed no longer subject to this Section 3.15. Except
as provided in this subsection (f), TIC shall not have the right
to assign its obligations under this Section 3.15 without the
express written consent of the General Partner.
(g) Termination of Indemnitor's Obligations. This Section
3.15 shall continue in full force and effect until the first to
occur of the following:
(i) The death of an individual indemnitor
(including an assignee of any indemnitor), at which
time all obligations of the deceased individual
indemnitor (a "Terminated Indemnitor") under this
Section 3.15 that are not then due and payable shall
terminate, and the Terminated Indemnitor shall be
deemed no longer subject to this Section 3.15.
Following termination with respect to a Terminated
Indemnitor, this Section 3.15 shall remain effective
and enforceable with respect to all other indemnitors
then subject to this Section 3.15, and all allocations
of obligations under this Section 3.15 based upon the
total Claim Percentages held by indemnitors or a
specified group of indemnitors shall thereafter be
made.
(ii) Upon the exchange pursuant to Section 7.07 of
all the Units held by TIC or its successors, at which
time all obligations of the indemnitors under this
Section 3.15 that are not then due and payable shall
terminate.
(h) Notices. All notices, demands, or other communications
given pursuant to this section shall be in writing and shall be
sufficiently given if delivered by courier (including overnight
delivery service) or sent by registered or certified mail, first
class, postage prepaid, or by telecopy addressed as follows:
(i) If to the General Partner or the Partnership, to:
Duke Realty Investments, Inc.
0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxx X. Xxxxxx, Vice President and General Counsel
(ii) If to TIC, to:
Towne Investment Co.
0000 Xx. Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Telecopier No. (000) 000-0000
Attention: Xxxx X. Xxxxx and Xxxxxx Xxxxxxxxx
or such other address with respect to any party subject to this
section as such party may, from time to time, notify (as provided
above) the General Partner and the other parties subject hereto.
Any such notice, demand, or communication shall be deemed to have
been given (A) if so mailed, as of the close of the third
business day following the date so mailed, and (B) if personally
delivered or otherwise sent as provided above, on the date
received
