Exhibit 10.5
SIXTH 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 4.16 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., November 24, 1998.
DUKE REALTY INVESTMENTS,
INC., as General Partner
By: -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and
Treasurer
EXHIBIT A
Section 4.16. Series D 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 7.375% Series D Convertible Cumulative Redeemable
Preferred Units (Liquidation Preference $250.00 Per Unit) (the
"Series D Preferred Units") on the following terms:
(a) Number. The number of authorized units of the Series D
Preferred Units shall be 540,000 and shall at all times be equal
to the number of 7.375% Series D Cumulative Convertible
Redeemable Preferred Shares ("Series D Preferred Shares") issued
by the General Partner and then outstanding. Series D Preferred
Units shall be issued only to and held only by the General
Partner.
(b) Relative Seniority. In respect of rights to receive
dividends and to participate in distributions or payments in the
event of any liquidation, dissolution or winding up of the
Partnership, the Series D 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 D
Preferred Units (collectively, "Junior Units") and on a parity
with the Series A Preferred Units and the Series B Preferred
Units. In the event of Distributions from a Terminating Capital
Transaction pursuant to Section 4.04, Distributions to the holder
of Series D 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 D 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 an initial rate of 7.375% per Unit per
year, payable in equal amounts of $4.609375 per 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 next succeeding Business Day
beginning on December 31, 1998 (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"). Distributions
shall be payable to the General Partner as holder of the
Series D Preferred Units at the close of business on the
applicable record date (the "Record Date"), which shall be
on such date designated by the Partnership for the payment
of Distributions that is not more than 30 nor less than 10
days prior to such Quarterly Distribution Date. 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 Series D Preferred Unit shall
accrue and be cumulative from and including the date of
original issue thereof, whether or not (i) Distributions on
such units are earned and declared, (ii) the Partnership has
earnings, or (iii) on any Quarterly Distribution Date there
shall be funds legally available for the payment of
Distributions. Distributions paid on the Series D Preferred
Units in an amount less than the total amount of such
Distributions at the time accrued and payable on such units
shall be allocated pro rata on a per Unit basis among all
such Series D Preferred Units at the time outstanding.
Except as provided in subparagraph (e)(2)(v) and the last
sentence of this paragraph, unless the full cumulative
Distributions on the Series D Preferred Units 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 Distributions (other than
Distributions payable solely in Common Units or other units
of Partnership interest ranking junior to the Series D
Preferred Units as to Distributions and upon liquidation)
shall be declared or paid or set aside for payment or other
distribution made upon the Common Units or any other units
of Partnership interest ranking junior to or on a parity
with the Series D Preferred Units as to Distributions or
upon liquidation, nor shall any Common Units, or any other
units of Partnership interest ranking junior to or on a
parity with the Series D Preferred Units as to Distributions
or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of such
units) by the Partnership or any subsidiary of the
Partnership (except for conversion into or exchange for such
capital units of the Partnership ranking junior to the
Series D Preferred Units as to Distributions and upon
liquidation). If accrued Distributions on the Series D
Preferred Units for all prior Distribution periods have not
been paid in full, then any Distribution declared on the
Series D Preferred Units for any Distribution period and on
any series of preferred units at the time outstanding
ranking on a parity as to the Distributions with the Series
D Preferred Units will be declared ratably in proportion to
accrued and unpaid Distributions on the Series D Preferred
Units and such series of preferred units at the time
outstanding ranking on a parity as to Distributions with the
Series D Preferred Units.
"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 D 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 units of Series D 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 7.375% per unit, 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 4.16, the
Series D Preferred Units shall not be entitled to
participate in the earnings or assets of the Partnership.
(4) Any Distribution payment made on the Series D
Preferred Units shall be first credited against the earliest
accrued but unpaid Distribution due with respect to such
units which remains payable.
(5) If, for any taxable year, the Partnership elects
to designate as "capital gain Distributions" (as defined in
Section 857 of the Code), any portion (the "Capital Gains
Amount") of the Distributions paid or made available for the
year to holders of all classes of Units (the "Total
Distributions"), then the portion of the Capital Gains
Amount that shall be allocated to the holders of the Series
D Preferred Units shall be the amount that the total
Distributions paid or made available to the holders of the
Series D Preferred Units for the year bears to the Total
Distributions.
(6) No Distributions on the Series D Preferred Units
shall be authorized by the General Partner or be paid or set
apart for payment by the Partnership at such time as the
terms and provisions of any agreement of the Partnership,
including any agreement relating to its indebtedness,
prohibit such authorization, payment or setting apart for
payment or provide that such authorization, payment or
setting apart for payment would constitute a breach thereof
or a default thereunder, or if such authorization or payment
shall be restricted or prohibited by law. Notwithstanding
the foregoing, Distributions on the Series D Preferred Units
will accrue whether or not the Partnership has earnings,
whether or not there are funds legally available for the
payment of such Distributions and whether or not such
Distributions are authorized.
(d) Liquidation Rights.
(1) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Partnership, the holders of
the Series D Preferred Units then outstanding shall be
entitled to receive and to be paid out of the assets of the
Partnership available for distribution to the Partners,
before any payment or distribution shall be made on any
Junior Units, the amount of $250.00 per unit, plus accrued
and unpaid Distributions thereon.
(2) After the payment to the holders of the Series D
Preferred Units of the full preferential amounts provided
for in this Section 4.16, the holders of the Series D
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,
liquidation, or winding up of the Partnership, the amounts
payable with respect to the preference value of the Series D
Preferred Units and any other units of the Partnership
ranking as to any such distribution on a parity with the
Series D Preferred Units are not paid in full, the holders
of the Series D 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, lease, transfer or conveyance 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 dissolution,
liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 4.16.
(e) Redemption by the Partnership.
(1) Optional Redemption. The General Partner shall
cause the Partnership to redeem one Series D Preferred Unit
for each Series D Preferred Share redeemed by the General
Partner, at a price per Series D Preferred Unit (the "Series
D Redemption Price"), payable in cash, of $250.00, together
with all accrued and unpaid Distributions to and including
the date fixed for redemption (the "Series D Redemption
Date"). The Series D Preferred Units have no stated
maturity and will not be subject to any sinking fund or
mandatory redemption provisions except as provided in
subparagraph (e)(3) below.
(2) Procedures of Redemption.
(i) The General Partner shall provide the
Partnership with a copy of any notice of redemption
given by the General Partner pursuant to Section
6.08(e)(2)(i) of its Articles of Incorporation, as
amended. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any
Series D Preferred Units.
(ii) If notice has been mailed by the General
Partner in accordance with Section 6.08(e)(2)(i) of its
Articles of Incorporation, as amended, and provided
that on or before the Series D Redemption Date
specified in such notice all funds necessary for such
redemption shall have been irrevocably set aside by the
Partnership, separate and apart from its other funds in
trust for the pro rata benefit of the holders of the
Series D Preferred Units so called for redemption, so
as to be, and to continue to be available therefor,
then, from and after the Series D Redemption Date,
Distributions on the Series D Preferred Units so called
for redemption shall cease to accumulate, and said
units shall no longer be deemed to be outstanding and
shall not have the status of Series D Preferred Units
and all rights of the General Partner as holder thereof
(except the right to receive the Series D Redemption
Price) shall cease. Upon surrender, in accordance with
such notice, of the certificates for any Series D
Preferred Units so redeemed (properly endorsed or
assigned for transfer, if the Partnership shall so
require and the notice shall so state), such Series D
Preferred Units shall be redeemed by the Partnership at
the Series D Redemption Price. In case fewer than all
the Series D Preferred Units represented by any such
certificate are redeemed, a new certificate or
certificates shall be issued representing the
unredeemed Series D Preferred Units without cost to the
holder thereof.
(iii) Any funds deposited with a bank or trust
company for the purpose of redeeming Series D Preferred
Units shall be irrevocable except that:
(A) the Partnership or the General Partner,
as the case may be, 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
(B) any balance of monies so deposited and
unclaimed by the General Partner, as holder of the
Series D Preferred Units entitled thereto at the
expiration of two years from the applicable Series
D 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 the units entitled to
the funds so repaid to the Partnership shall look
only to the Partnership for payment without
interest or other earnings.
(iv) No Series D Preferred Units may be redeemed
except from proceeds from the sale or other issuance of
other equity interests of the Partnership.
(v) Unless full accumulated distributions on all
Series D 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 D Preferred
Units shall be redeemed or purchased or otherwise
acquired directly or indirectly by the Partnership or
any subsidiary of the Partnership (except by conversion
into or exchange for Junior Units) and no preferred
units of the Partnership shall be redeemed unless all
outstanding Series D Preferred Units are simultaneously
redeemed; provided, however, that the foregoing shall
not prevent the redemption of Series D Preferred Units
to preserve the REIT status of the General Partner or
the purchase or acquisition of Series D Preferred Units
pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Series D
Preferred Units. Notwithstanding the foregoing, in the
case of a Redemption Request (as defined below) which
has not been fulfilled at the time the General Partner
gives notice of its election to redeem all or any
Series D Preferred Shares, the Series D Preferred Units
which are the subject of such pending Redemption
Request shall be redeemed prior to any other Series D
Preferred Units.
(3) Optional Redemption Upon the Death of a Holder of
Series D Preferred Shares.
(i) Commencing on December 31, 1998, and on the
last day of each March, June, September and December
thereafter (each, a "Holder Redemption Date"), the
Partnership will, upon notice from the General Partner
that it is required to redeem Series D Preferred Shares
as a result of the death of any holder of the Series D
Preferred Shares or depositary shares representing
Series D Preferred Shares, the Partnership will redeem
a number of Series D Preferred Units equal to the
number of Series D Preferred Shares redeemed by the
General Partner for cash or Common Units, at the option
of the General Partner. The Partnership shall redeem
the Series D Preferred Units subject to the limitations
that the Partnership will not be obligated to redeem
(A) more than16,200 Series D Preferred Units in any one
year; and (B) more than 100 Series D Preferred Units
per deceased owner of depositary shares per year (each
a "Redemption Limitation" and together the "Redemption
Limitations").
(ii) A Redemption Request which exceeds one or
both Redemption Limits will be held for redemption in
subsequent years until redeemed in full. A Redemption
Request will be applied in the order of receipt by the
transfer agent to successive years, regardless of the
number of years required to redeem such units.
(iii) At the General Partner's option, the
Series D Preferred Units may be redeemed for either
cash or Common Units. If such units are redeemed by
the Partnership for cash, the redemption price of such
units is $250.00 per Series D Preferred Unit (plus all
accrued and unpaid Distributions). If, however, such
units are redeemed by the Partnership for Common Units,
the redemption price will be $252.50 per Series D
Preferred Unit and the number of Common Units received
will be based on the closing price of the General
Partners common stock on the day prior to the Holder
Redemption Date (plus all accrued and unpaid
Distributions, which shall be paid in cash). No
fractional Common Units will be issued. In lieu of any
fractional units, the Partnership will pay cash in an
amount equal to the product of such fraction multiplied
by the closing price of one share of the General
Partner's common stock on the day prior to the Holder
Redemption Date.
(f) Voting Rights. Except as required by law, and as set
forth below, the holders of the Series D 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 Partners, or to receive notice of any meeting of Partners.
(1) So long as any Series D Preferred Units remain
outstanding, the Partnership will not, without the
affirmative vote or consent of the holders of at least two-
thirds of the Series D Preferred Units outstanding at the
time, given in person or by proxy, either in writing or at a
meeting (such series voting separately as a class),
(i) authorize or create, or increase the authorized or
issued amount of, any class or series of units ranking prior
to the Series D Preferred Units with respect to the payment
of Distributions or the distribution of assets upon
liquidation, dissolution 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 D Preferred Units or the holders thereof;
provided, however, with respect to the occurrence of any of
the Events set forth in (ii) above, so long as the Series D
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 holders of Series
D 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 of preferred units,
or (y) any increase in the amount of authorized Series D
Preferred Units or any other preferred units, in each case
ranking on a parity with or junior to the Series D Preferred
Units with respect to payment of Distributions or the
distribution of assets upon liquidation, dissolution or
winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting
powers.
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 D Preferred Units shall have been
redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
(2) On each matter submitted to a vote of the holders
of Series D Preferred Units in accordance with this Section
4.16, or as otherwise required by law, each Series D
Preferred Unit shall be entitled to ten (10) votes, each of
which ten (10) votes may be directed separately by the
holder thereof.
(g) Conversion. The General Partner, as holder of the
Series D Preferred Units, shall have the right to convert all or
a portion of such Series D Preferred Units Common Units, as
follows:
(1) Upon notice to the Partnership by the General
Partner that a holder of depositary shares representing
Series D Preferred Shares has elected to convert such
depositary shares into common stock of the General Partner,
the General Partner shall have the right to convert a number
of Series D Preferred Units equal to the number of Series D
Preferred Shares so converted into fully paid and
non-assessable Common Units by surrendering such Series D
Preferred Units to be converted, such surrender to be made
in the manner provided in subsection (g)(2); provided,
however, that the right to convert units called for
redemption pursuant to subsection (e)(1) shall terminate at
the close of business on the Redemption Date fixed for such
redemption, unless the Partnership shall default in making
payment of the Common Units and any cash payable upon such
redemption under subsection (e)(1) hereof.
(2) (i) In order to exercise the conversion right,
the General Partner shall surrender the certificate
representing such Series D Preferred Unit, if certificated,
duly endorsed or assigned to the Partnership or in blank, to
the Partnership.
(ii) The General Partner as holder of the Series D
Preferred Units at the close of business on a distribution
payment record date shall be entitled to receive the
distribution payable on such units on the corresponding
Distribution Payment Date notwithstanding the conversion
thereof following such distribution payment record date and
prior to such Distribution Payment Date. However, Series D
Preferred Units surrendered for conversion during the
period between the close of business on any distribution
payment record date and the opening of business on the
corresponding Distribution Payment Date (except units
converted after the issuance of notice of redemption with
respect to a redemption date during such period or
coinciding with such Distribution Payment Date, such Series
D Preferred Units being entitled to such distribution on the
Distribution Payment Date) must be accompanied by payment of
an amount equal to the distribution payable on such Series D
Preferred Units on such Distribution Payment Date. The
General Partner as holder of Series D Preferred Units on a
distribution payment record date which are tendered for
conversion into Common Units on such Distribution Payment
Date will receive the distribution payable by the
Partnership on such Series D Preferred Units on such date,
and the General Partner as converting holder need not
include payment of the amount of such distribution upon
surrender of Series D Preferred Units for conversion. Except
as provided above, the Partnership shall make no payment or
allowance for unpaid distributions, whether or not in
arrears, on converted Series D Preferred Units or for
distributions on the Common Units issued upon such
conversion.
(iii) As promptly as practicable after the
surrender of Series D Preferred Units as aforesaid, the
Partnership shall issue and shall deliver to the General
Partner a certificate or certificates for the number of full
Common Units issuable upon the conversion of such Series D
Preferred Units in accordance with the provisions of this
subparagraph (g), and any fractional interest in respect of
a Common Unit arising upon such conversion shall be settled
as provided in subsection (g)(3).
(iv) Each conversion shall be deemed to have been
effected immediately prior to the close of business on the
date on which the Series D Preferred Units shall have been
surrendered and such notice (and if applicable, payment of
an amount equal to the distribution payable on such units)
received by the Partnership as aforesaid, and the General
Partner shall be deemed to have become the holder of record
of the Common Units represented thereby at such time on such
date, unless the unit transfer books of the Partnership
shall be closed on that date, in which event the General
Partner shall be deemed to have become such holder of record
at the close of business on the next succeeding day on which
such unit transfer books are open.
(3) No fractional units of scrip representing
fractions of Common Units shall be issued upon conversion of
the Series D Preferred Units. Instead of any fractional
interest in a Common Unit that would otherwise be
deliverable upon the conversion of Series D Preferred Unit,
the Partnership shall pay to the General Partner as holder
of such unit an amount in cash based upon the Current Market
Price (as defined in Section 6.08(g)(3) of the General
Partner's Articles of Incorporation, as amended) of the
General Partner's common stock on the Trading Day (as
defined in Section 6.08(g)(3) of the General Partner's
Articles of Incorporation, as amended) immediately preceding
the date of conversion. If more than one Series D Preferred
Unit shall be surrendered for conversion at one time, the
number of full Common Units issuable upon conversion thereof
shall be as specified by the General Partner.
(4) The number of Series D Preferred Units shall be
increased or decreased by split, combination or otherwise in
the same manner as the Series D Preferred Shares so that the
number of authorized Series D Preferred Units will at all
times be equal to the number of authorized Series D
Preferred Shares and number of outstanding Series D
Preferred Units will at all times be equal to the number of
outstanding Series D Preferred Shares.