Exhibit 10.7


 


SIXTH 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 Q to read as
provided in the attached Exhibit Q.
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: February 13, 2004

  	
  DUKE REALTY LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  DUKE REALTY CORPORATION,

  
	
   

  	
   

  	
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Howard L. Feinsand

  	
   

  
	
   

  	
   

  	
   

  	
  Howard L. Feinsand

  
	
   

  	
   

  	
   

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  General Counsel

  



 

















 


Exhibit Q


 


                Series K 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 6.5% Series K
Cumulative Redeemable Preferred Units (liquidation preference $250.00 per unit)
(the “Series K Preferred Units”) on the terms set forth in this
Exhibit Q. 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 K Preferred Units
shall be 600,000 and shall at all times be equal to the number of 6.5% Series K
Cumulative Redeemable Preferred Shares (“Series K Preferred Shares”)
issued by the General Partner and then outstanding. Series K 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 K 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 K
Preferred Units) if the holders of such class or series of Units and Series K
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 K 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 K Preferred Units
(collectively, “Fully Junior Units”). Nothing contained in Section 4.06 of the
Partnership Agreement or this Exhibit Q shall prohibit the Partnership from
issuing additional Units that are Parity Units with the Series K Preferred
Units.


 


                (c)           Distributions.


 


                                (1)           The
General Partner, as holder of the then outstanding Series K 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 6.5% of the liquidation preference per unit per year, payable
quarterly in equal amounts of $4.0625 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 K Preferred Units will be paid on May 31, 2004. Distributions
shall be payable to the General Partner, as holder of the Series K 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 K
Preferred Unit shall accrue and be cumulative from and including the date of
the 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 K Preferred Units in an
amount less than the total amount of such Distributions at the time accrued and
payable on such Series K Preferred Units shall be allocated pro rata on a
per unit basis among all such Series K Preferred Units at the time
outstanding. Except as provided in the last sentence of this paragraph, unless
the full cumulative Distributions on the Series K 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 K 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 K 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 K Preferred Units as to Distributions and upon liquidation). If
accrued Distributions on the Series K Preferred Units for all prior
Distribution Periods have not been paid in full, then any Distribution declared
on the Series K 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 K Preferred Units will be declared ratably in
proportion to accrued and unpaid Distributions on the Series K Preferred
Units and such series of Preferred Units at the time outstanding ranking on a
parity as to Distributions with the Series K 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 K 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 K 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 6.5% 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 Q, the Series K Preferred Units shall not be entitled
to participate in the earnings or assets of the Partnership.


 


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


 


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


 


                (e)           Redemption
by the Partnership.


 


                                (1)           Redemption.  The Series K Preferred Units are not redeemable
prior to February 13, 2009. On or after February 13, 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 K 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 data fixed for
redemption. The Series K 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 K Preferred Shares, the
General Partner shall exercise its right to cause the Partnership to redeem an
equal number of Series K
Preferred Units.


 


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


 


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