FOURTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DUKE REALTY LIMITED PARTNERSHIP
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The undersigned, as the General Partner of Duke Realty
Limited Partnership (the "Partnership"), hereby amends the
Partnership's Amended and Restated Agreement of Limited
Partnership, as heretofore amended (the "Partnership
Agreement"), pursuant to Sections 4.02(b) and 9.05(a)(v) of
the Partnership Agreement, to add a new Section 4.14 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.
Effective as of 12:01 a.m., July 11, 1997.
DUKE REALTY INVESTMENTS, INC.,
as General Partner
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President and Treasurer
Exhibit A
SECTION 4.14. SERIES B PREFERRED UNITS. Pursuant to
authority granted under Section 4.02(b) of this Agreement,
the General Partner hereby establishes a series of preferred
Units designated the 7.99% Series B Cumulative Step-Up
Premium Rate Preferred Units (Liquidation Preference $500.00
Per Unit) (the "Series B Preferred Units") on the following
terms:
(a) Number and Holder. The number of Series B Preferred Units
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shall not exceed 345,000 and shall at all times be equal to
the number of 7.99% Series B Cumulative Step-Up Premium Rate
Preferred Shares ("Series B Preferred Shares") issued by the
General Partner and then outstanding. Series B Preferred
Units shall be issued only to and held only by the General
Partner.
(b) Relative Seniority. In respect of rights to receive
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Distributions of Distributable Cash pursuant to Section 4.03
and to participate in Distributions or payments in the event
of any liquidation or termination of the Partnership
pursuant to Section 4.04, the Series B Preferred Units shall
rank senior to the Units initially established under Section
2.03 and issued under Sections 4.01 and 4.02(a) ("Common
Units") and any other class or series of Units of the
Partnership ranking, as to Distributions and upon
liquidation, junior to the Series B Preferred Units
(collectively, "Junior Units"). In the event of
Distributions from a Terminating Capital Transaction
pursuant to Section 4.04, Distributions to the holder of
Series B Preferred Units will be made prior to Distributions
to holders of Junior Units or to other Partners in
accordance with Capital Account positive balances pursuant
to Section 4.04(d).
(c) Distributions.
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(1) The General Partner, as holder of the then
outstanding Series B Preferred Units, shall be entitled
to receive, when and as declared by the General Partner
out of any funds legally available therefor, cumulative
Distributions at the initial rate of $39.95 per Series
B Preferred Unit per year, payable in equal amounts of
$9.9875 per Series B Preferred Unit quarterly in cash
on the last day of each March, June, September and
December or, if not a Business Day (as hereinafter
defined), the succeeding Business Day, beginning on
September 30, 1997 (each such day being hereinafter
called a "Quarterly Distribution Date" and each period
ending on a Quarterly Distribution Date being
hereinafter called a "Distribution Period"); provided,
however, that beginning with Quarterly Distribution
Dates after October 1, 2012, the rate shall increase to
$49.95 per Series B Preferred Unit per year, payable in
equal amounts of $12.4875 on each Quarterly
Distribution Date. Distributions shall be payable to
the General Partner as holder of the Series B Preferred
Units. The amount of any Distribution payable for any
Distribution Period shorter than a full Distribution
Period shall be prorated and computed on the basis of a
360-day year of twelve 30-day months. Distributions on
each share of Series B Preferred Units shall accrue and
be cumulative from and including the date of original
issue thereof, whether or not (i) Distributions on such
Units are earned or declared or (ii) on any Quarterly
Distribution Date there shall be funds legally
available for the payment of Distributions.
Distributions paid on the Series B Preferred Units in
an amount less than the total amount of such
Distributions at the time accrued and payable on such
Series B Preferred Units shall be allocated pro rata on
a per Unit basis among all such Series B Preferred
Units at the time outstanding.
"Business Day" shall mean any day, other than a
Saturday or Sunday, that is neither a legal holiday nor
a day on which banking institutions in New York City
are authorized or required by law, regulation or
executive order to close.
(2) The amount of any Distributions accrued on
any Series B Preferred Units at any Quarterly
Distribution Date shall be the amount of any unpaid
Distributions accumulated thereon, to and including
such Quarterly Distribution Date, whether or not earned
or declared, and the amount of Distributions accrued on
any Series B Preferred Units at any date other than a
Quarterly Distribution Date shall be equal to the sum
of the amount of any unpaid Distributions accumulated
thereon, to and including the last preceding Quarterly
Distribution Date, whether or not earned or declared,
plus an amount calculated on the basis of the annual
Distribution rate of $39.95 per Series B Preferred Unit
with respect to a Quarterly Distribution Date on or
before October 1, 2012 and $49.95 per Series B
Preferred Unit with respect to a Quarterly Distribution
Date after October 1, 2012, and in either case, for the
period after such last preceding Quarterly Distribution
Date to and including the date as of which the
calculation is made based on a 360-day year of twelve
30-day months.
(3) Except as provided in this Section 4.14, the
Series B Preferred Units shall not be entitled to
participate in the earnings or assets of the
Partnership.
(4) Any Distribution payment made on the Series B
Preferred Units shall be first credited against the
earliest accrued but unpaid Distribution due with
respect to such Series B Preferred Units which remains
payable.
(5) All Distributions made on the Series B
Preferred Units shall result in a corresponding
reduction to the Capital Accounts of the holders of
such Series B Preferred Units.
(d) Liquidation Rights.
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(1) Upon the voluntary or involuntary dissolution and
liquidation or winding up of the Partnership, the holders of
the Series B Preferred Units then outstanding shall be
entitled to receive and to be paid out of the assets of the
Partnership available for Distribution to its Partners,
before any payment or Distribution shall be made on any
Junior Units, the amount of $500.00 per Series B Preferred
Unit, plus accrued and unpaid Distributions thereon. Such
Distributions shall result in a corresponding reduction to
the Capital Accounts of the holders of such Series B
Preferred Units.
(2) After the payment to the holders of the
Series B Preferred Units of the full preferential
amounts provided for in this Section 4.14, the holders
of the Series B Preferred Units, as such, shall have no
right or claim to any of the remaining assets of the
Partnership.
(3) If, upon any voluntary or involuntary
dissolution and liquidation or winding up of the
Partnership, the amounts payable with respect to the
preference value of the Series B Preferred Units and
any other Units of the Partnership ranking as to any
such Distribution on a parity with the Series B
Preferred Units are not paid in full, the holders of
the Series B Preferred Units and of such other Units
will share ratably in any such Distribution of assets
of the Partnership in proportion to the full respective
preference amounts to which they are entitled.
(4) Neither the sale of all or substantially all
of the property or business of the Partnership, nor the
merger or consolidation of the Partnership into or with
any other entity or the merger or consolidation of any
other entity into or with the Partnership, shall be
deemed to be a voluntary or involuntary dissolution and
liquidation or winding up for the purposes of this
Section 4.14.
(e) Redemption.
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(1) Redemption. The General Partner shall cause the
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Partnership to redeem one Series B Preferred Unit for each
Series B Preferred Share redeemed by the General Partner, at
a price per Series B Preferred Unit (the "Series B
Redemption Price"), payable in cash, of $500.00, together
with all accrued and unpaid Distributions to and including
the date fixed for redemption of such Series B Preferred
Shares (the "Series B Redemption Date").
(2) Procedures of Redemption..
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(i) Provided that on or before the Series B
Redemption Date all funds necessary for the redemption
by the General Partner of the associated Series B
Preferred Shares shall have been irrevocably set aside
by the General Partner or the Partnership, separate and
apart from its other funds in trust for the pro rata
benefit of the General Partner as holder of the Series
B Preferred Units to be redeemed, so as to be, and to
continue to be available therefor, then, from and after
the Series B Redemption Date, Distributions on the
Series B Preferred Units to be redeemed shall cease to
accumulate, and said Series B Preferred Units shall no
longer be deemed to be outstanding and shall not have
the status of Series B Preferred Units and all rights
of the General Partner as the holder thereof (except
the right to receive the Series B Redemption Price)
shall cease. Upon surrender of the certificates for any
Series B Preferred Units so redeemed (properly endorsed
or assigned for transfer, if the Partnership shall so
require), such Series B Preferred Units shall be
redeemed by the Partnership at the Series B Redemption
Price. In case fewer than all the Series B Preferred
Units represented by any such certificate are redeemed,
a new certificate or certificates shall be issued
representing the unredeemed Series B Preferred Units
without cost to the General Partner as holder thereof.
(ii) Any funds deposited with a bank or trust
company for the purpose of redeeming Series B Preferred
Units shall be irrevocable except that:
(A) the Partnership or the General Partner,
as the case may be, as depositor of the funds
shall be entitled to receive from such bank or
trust company the interest or other earnings, if
any, earned on any money so deposited in trust,
and the General Partner as holder of any Series B
Preferred Units redeemed shall have no claim to
such interest or other earnings; and
(B) any balance of monies so deposited and
unclaimed by the General Partner as holder of the
Series B Preferred Units entitled thereto at the
expiration of two years from the applicable Series
B Redemption Date shall be repaid, together with
any interest or other earnings earned thereon, to
the Partnership, and after any such repayment, the
General Partner as holder of any Series B
Preferred Units entitled to the funds so repaid to
the Partnership shall look only to the Partnership
for payment without interest or other earnings.
(iii) Unless full accumulated Distributions on
all Series B Preferred Units shall have been or
contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof set apart for
payment for all past Distribution Periods and the then
current Distribution Period, no Series B Preferred
Units shall be redeemed or purchased or otherwise
acquired directly or indirectly (except by conversion
into or exchange for Junior Units); provided, however,
that the foregoing shall not prevent the redemption of
Series B Preferred Units pursuant to this Section 4.14
or the purchase or acquisition of Series B Preferred
Units pursuant to a purchase or exchange offer made to
the General Partner as the sole holder of all
outstanding Series B Preferred Units.
(iv) If the Series B Redemption Date is after a
record date for payment of dividends on the Series B
Preferred Shares and before the related Quarterly
Distribution Date, the Distribution payable on such
Quarterly Distribution Date shall be paid to the
General Partner notwithstanding the redemption of the
Series B Preferred Units between such record date and
the related Quarterly Distribution Date or the
Partnership's default in the payment of the
Distribution due.
(f) Voting Rights. Except as required by law, and as set forth
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below, the holders of the Series B Preferred Units shall not
be entitled to vote at any meeting for any purpose or
otherwise to participate in any action taken by the
Partnership or the holders of Units, or to receive notice of
any meeting of holders of Units. Accordingly, any
calculation in connection with Special Partner Approval or
any matter requiring the approval of a specified number or
percentage of Units shall be made without regard to the
Series B Preferred Units.
(1) So long as any Series B Preferred Units
remain outstanding, the Partnership will not, without
the affirmative vote or consent of the General Partner
as holder of the Series B Preferred Units,
(i) authorize or create, or increase the authorized or
issued amount of, any class or series of Units ranking
prior to the Series B Preferred Units with respect to
the payment of Distributions or the Distribution of
assets upon liquidation or winding up or reclassify any
authorized Units of the Partnership into such Units,
or create, authorize or issue any obligation or
security convertible into or evidencing the right to
purchase any such Units; or (ii) amend, alter or repeal
the provisions of the Partnership's Amended and
Restated Agreement of Limited Partnership, as amended,
whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any
right, preference, privilege or voting power of the
Series B Preferred Units or the General Partner as
holder thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii)
above, so long as the Series B Preferred Units remain
outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence
of an Event, the Partnership may not be the surviving
entity, the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights,
preferences, privileges or voting power of the General
Partner as the holder of Series B Preferred Units and
provided further that (x) any increase in the amount of
the authorized Preferred Units or the creation or
issuance of any other Series B Preferred Units, or
(u) any increase in the amount of authorized Series B
Preferred Units or any other preferred Units, in each
case ranking on a parity with or junior to the Series B
Preferred Units with respect to payment of
Distributions or the distribution of assets upon
liquidation or winding up, shall not be deemed to
materially and adversely affect such rights,
preferences, privileges or voting powers.
(2) The foregoing voting provisions will not
apply if, at or prior to the time when the act with
respect to which such vote would otherwise be required
shall be effected, all outstanding Series B Preferred
Units shall have been redeemed or called for redemption
and sufficient funds shall have been deposited in trust
to effect such redemption.
(g) Conversion. The Series B Preferred Units are not
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convertible into or exchangeable for any other property or
securities of the Partnership.
(h) Allocation of Profits and Losses.
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(1) Notwithstanding the allocation provisions in
Section 4.05, for each fiscal year of the Partnership,
Profits shall first be allocated to the holders of
Series B Preferred Units in an amount equal to the
amount of Distributions to which the holders of such
units are entitled pursuant to Section 4.14(c). To the
extent insufficient Profits exist for such purposes in
a fiscal year, Profits in the next succeeding fiscal
year shall first be allocated to holders of Series B
Preferred Units to eliminate such deficiency until such
holders have been allocated cumulative Profits equal to
one hundred percent (100%) of the Distributions both
current and cumulative to which such holders are
entitled.
(2) Notwithstanding the allocation provisions
contained in Section 4.05, in the event of a
Terminating Capital Transaction in which the
Partnership is liquidated, Losses shall be allocated to
the holders of Series B Preferred Units if, and only
if, after the reduction of all other Partners' Capital
Accounts to zero, remaining Losses exist, but only to
the extent of the positive balances in the Capital
Accounts of such holders.
(3) Subject to the provisions of Section 4.08,
the holders of Series B Preferred Units shall be
allocated their pro rata share of each item of Profit
and Loss of the Partnership based upon the percentage
of all Profits and Losses of the Partnership allocated
to such holders.
(4) All determinations of Percentage Shares shall
be made without regard to Series B Preferred Units.
