FOURTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
DUKE REALTY LIMITED PARTNERSHIP
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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 shall
not exceed 300,000 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 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.
(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
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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.
(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.
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(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.
(1) REDEMPTION. The General Partner shall cause the 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.
(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.
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(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 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.
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(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 convertible into or
exchangeable for any other property or securities of the Partnership.
(h) ALLOCATION OF PROFITS AND LOSSES.
(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.
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(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.
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