Exhibit
10.6


 


FIFTH
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 P to read as
provided in the attached Exhibit P.
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: August 25, 2003

  	
  DUKE REALTY LIMITED
  PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION,

  
	
   

  	
   

  	
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Matthew A. Cohoat

  	
   

  
	
   

  	
   

  	
   

  	
  Matthew A. Cohoat

  
	
   

  	
   

  	
   

  	
  Senior Vice President and

  
	
   

  	
   

  	
   

  	
  Corporate Controller

  



 

















Exhibit
P


 


                Series
J 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 6.625% Series J Cumulative Redeemable
Preferred Units (liquidation preference $250.00 per unit) (the “Series J
Preferred Units”) on the terms set forth in this Exhibit P. 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 J Preferred Units shall be 460,000 and shall at all times be equal
to the number of 6.625% Series J Cumulative Redeemable Preferred Shares
(“Series J Preferred Shares”) issued by the General Partner and then
outstanding. Series J 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 J
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 J Preferred Units) if the holders of such class or series of
Units and Series J 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 J Preferred Units (collectively, “Junior Units”) and
(iii) senior to the Common Units and any other class or series of Units of
the Partnership ranking, as to Distributions and upon liquidation, junior to
the Series J Preferred Units (collectively, “Fully Junior Units”). Nothing
contained in Section 4.06 of the Partnership Agreement or this
Exhibit P shall prohibit the Partnership from issuing additional Units
that are Parity Units with the Series J Preferred Units.


 


                (c)           Distributions.


 


                                (1)           The General Partner, as holder of the
then outstanding Series J 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 6.625% of the liquidation
preference per unit per year, payable quarterly in equal amounts of $4.140625
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


 


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“Distribution Period”), provided, however,
that the first Distribution on the Series J Preferred Units will be paid
on December 1, 2003. Distributions shall be payable to the General
Partner, as holder of the Series J 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 J
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 J Preferred Units in an
amount less than the total amount of such Distributions at the time accrued and
payable on such Series J Preferred Units shall be allocated pro rata on a
per unit basis among all such Series J Preferred Units at the time
outstanding. Except as provided in the last sentence of this paragraph, unless
the full cumulative Distributions on the Series J 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 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 J 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 J 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 J Preferred Units as to Distributions and upon liquidation). If
accrued Distributions on the Series J Preferred Units for all prior
Distribution Periods have not been paid in full, then any Distribution declared
on the Series J 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 J Preferred Units will be declared ratably
in proportion to accrued and unpaid Distributions on the Series J
Preferred Units and such series of Preferred Units at the time outstanding
ranking on a parity as to Distributions with the Series J 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 J 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 J 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 of 6.625% 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 P, the Series J Preferred Units shall not be entitled to
participate in the earnings or assets of the Partnership.


 


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


 


                                (6)           No Distributions on the Series J
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 J 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 J 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 J 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 P to the holder
of the Series J 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 J Preferred
Units and any other Units of the Partnership ranking as to any such
distribution on a parity with the Series J Preferred Units are not paid in
full, the holders of the Series J 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 P.


 


                (e)           Redemption by the Partnership.


 


                                (1)           Redemption.  The Series J Preferred Units are not
redeemable prior to August 25, 2008. On or after August 25, 2008, 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 J 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 J 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 J Preferred Shares,
the General Partner shall exercise its right to cause the Partnership to redeem
an equal number of Series J Preferred Units.


 


                (f)            Voting Rights.  Except as required by law, the General
Partner, in its capacity as the holder of the Series J 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 J 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 J Preferred Units.


 


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