Exhibit
10.8


 


SEVENTH
AMENDMENT TO


SECOND
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 Second Amended and Restated Agreement of
Limited Partnership, as heretofore amended (the “Partnership Agreement”),
pursuant to Sections 4.02(a) and 9.05(a)(v) of the Partnership Agreement, to
add a new Exhibit R to read as provided in
the attached Exhibit R. 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.


 


 


	
  Dated: November 30, 2004

  	
  DUKE REALTY LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION,

  
	
   

  	
   

  	
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Howard L. Feinsand

  	
   

  
	
   

  	
   

  	
   

  	
  Howard L. Feinsand

  
	
   

  	
   

  	
   

  	
  Executive Vice President,

  
	
   

  	
   

  	
   

  	
  General Counsel and
  Secretary

  



 

















 


Exhibit
R


 


                Series L
Preferred Units.  Pursuant to the
authority granted under Section 4.02(a) of the Second Amended and Restated
Agreement of Limited Partnership of Duke Realty Limited Partnership (the “Partnership
Agreement”), the General Partner hereby establishes a series of Preferred Units
designated the 6.6% Series L Cumulative Redeemable Preferred Units (liquidation
preference $250.00 per unit) (the “Series L Preferred Units”) on the terms
set forth in this Exhibit R. Capitalized terms used herein without
definition have the meanings given to them in the Partnership Agreement.


 


                (a)           Number.  The Number of authorized units of the Series L
Preferred Units shall be 800,000 and shall at all times be equal to the number
of 6.6% Series L Cumulative Redeemable Preferred Shares (“Series L Preferred
Shares”) issued by the General Partner and then outstanding. Series L Preferred
Units shall be issued only to and held only by the General Partner.


 


                (b)           Relative Seniority.  In respect of rights to receive Distributions
and to participate in distributions or payments in the event of any
liquidation, dissolution or winding up of the Partnership, the Series L Preferred
Units shall rank (i) on a parity with any class or series of Units of the
Partnership (“Parity Units”) as to the payment of Distributions and as to the
distribution of assets upon liquidation, dissolution or winding up (whether or
not the Distribution rates, Distribution payment dates or redemption or
liquidation prices per unit thereof are different from those of the Series L
Preferred Units) if the holders of such class or series of Units and Series L
Preferred Units shall be entitled to the receipt of Distributions and of
amounts distributable upon liquidation, dissolution or winding up (taking into
account the effects of allocations of Profits, Losses and other items) in
proportion to their respective amounts of accrued and unpaid Distributions per
unit or liquidation preferences without preference or priority one over the
other, (ii) senior to any class or series of Units of the Partnership
ranking, as to Distributions and upon liquidation, junior to the Series L Preferred
Units (collectively, “Junior Units”) and (iii) senior to the Common Units
and any other class or series of the Units of the Partnership ranking, as to
Distributions and upon liquidation, junior to the Series L Preferred Units
(collectively, “Fully Junior Units”). Nothing contained in Section 4.06 of the
Partnership Agreement or this Exhibit R shall prohibit the Partnership
from issuing additional Units that are Parity Units with the Series L Preferred
Units.


 


                (c)           Distributions.


 


                                (1)           The General Partner, as holder of the
then outstanding Series L 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 rate of 6.6% of the liquidation
preference per unit per year, payable quarterly in equal amounts of $4.125 per
unit in cash on the last calendar day of each February, May, August, and
November or, if not a Business Day (as hereinafter defined), the next
succeeding Business Day (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”),


 


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provided, however, that the first
Distribution on the Series L Preferred Units will be paid on February 28,
2005. Distributions shall be payable to the General Partner, as holder of the Series L
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 partial Distribution Period shall be
prorated and computed on the basis of a 360-day year consisting of twelve
30-day months. Distributions on each Series L Preferred Unit shall accrue
and be cumulative from and including the date of original issue thereof whether
or not (i) there are funds legally available for the payment of such
Distributions or (ii) such Distributions are authorized. Distributions
paid on the Series L Preferred Units in an amount less than the total
amount of such Distributions at the time accrued and payable on such Series L
Preferred Units shall be allocated pro rata on a per unit basis among all such Series L
Preferred Units at the time outstanding. Except as provided in the last
sentence of this paragraph, unless the full cumulative Distributions on the Series L
Preferred Units have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart of payment for all past
Distribution Periods and the then current Distribution Period, no Distributions
(other than Distributions payable solely in Common Units or other Fully Junior
Units) shall be declared or paid or set aside for payment or other Distribution
made upon the Common Units or any other Units ranking junior to or on a parity
with the Series L Preferred Units as to Distributions or upon liquidation,
nor shall any Common Units or any other Units ranking junior to or on a parity
with the Series L 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 Units of the Partnership ranking junior to
the Series L Preferred Units as to Distributions and upon liquidation). If
accrued Distributions on the Series L Preferred Units for all prior
Distribution Periods have not been paid in full, then any Distribution declared
on the Series L 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 L Preferred Units will be declared ratably
in proportion to accrued and unpaid Distributions on the Series L Preferred
Units and such series of Preferred Units at the time outstanding ranking on a
parity as to Distributions with the Series L 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 L 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 L 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


 


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last preceding Quarterly Distribution Date, whether
or not earned or declared, plus an amount calculated on the basis of the annual
Distribution rate 6.6% 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 consisting of twelve 30-day
months.


 


                                (3)           Except as provided in this Exhibit R,
the Series L Preferred Units shall not be entitled to participate in the
earnings or assets of the Partnership.


 


                                (4)           Any Distribution made on the Series L
Preferred Units shall be first credited against the earliest accrued but unpaid
Distribution due with respect to such Series L Preferred Units that
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 holder of the Series L Preferred Units
shall be the amount that the total Distributions paid or made available to the
holder of the Series L Preferred Units for the year bears to the Total
Distributions.


 


                                (6)           No Distributions on the Series L
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 L Preferred Units will accrue whether
or not there are funds legally available for the payment of such Distributions
or such Distributions are authorized.


 


                (d)           Liquidation Rights.


 


                                (1)           Upon the voluntary or involuntary
dissolution, liquidation or winding up of the Partnership, the holder of the Series L
Preferred Units then outstanding shall be entitled to receive and to be paid
out of the assets of the Partnership legally available for distribution to the
Partners, before any payment or distribution shall be made on any Junior Units
or any Fully Junior Units, the amount of $250.00 per Series L Preferred
Unit, plus an amount equal to any accrued and unpaid Distributions thereon to
the date of such liquidation, dissolution or winding up.


 


                                (2)           After payment of the full amount of
the liquidating distributions provided for in this Exhibit R to the holder
of the Series L Preferred Units, such holder 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, liquidation or winding up of the Partnership, the amounts payable
with respect to the liquidating distributions of the Series L Preferred
Units and any other Units of the Partnership ranking as to any such
distribution on a parity with the Series L Preferred Units are not paid in
full, the holders of the Series L 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 liquidating distributions 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, the merger or consolidation of the Partnership into or with any
other entity nor 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 Exhibit R.


 


                (e)           Redemption by the Partnership.


 


                                (1)           Redemption.  The Series L Preferred Units are not
redeemable prior to November 30, 2009. On or after November 30, 2009,
the General Partner may, at its option, cause the Partnership to redeem at any
time all or, from time to time, part of the Series L Preferred Units at a
price per unit, payable in cash, of $250.00, together with all accrued and
unpaid Distributions thereon, without interest, to and including the date fixed
for redemption. The Series L Preferred Units have no stated maturity and
will not be subject to any sinking fund or mandatory redemption provisions.


 


                                (2)           Procedures of Redemption.  At any time that the General Partner
exercises its right to redeem all or any of the Series L Preferred Shares,
the General Partner shall exercise its right to cause the Partnership to redeem
an equal number of Series L Preferred Units.


 


                (f)            Voting Rights.  Except as required by law, the General
Partner, in its capacity as the holder of the Series L Preferred Units,
shall not be entitled to vote at any meeting of the Partners or for any other
purpose or otherwise to participate in any action taken by the Partnership or
the Partners, or to receive notice of any meeting of the Partners.


 


                (g)           General.  The rights of the General Partner, in its
capacity as holder of the Series L Preferred Units, are in addition to and
not in limitation of any other rights or authority of the General Partner, in
any other capacity, under the Partnership Agreement. In addition, nothing
herein shall be deemed to limit or otherwise restrict any rights or authority
of the General Partner other than in its capacity as the holder of the Series L
Preferred Units.


 


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