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As filed with the Securities and Exchange Commission on July 12, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): April 29, 1996
DUKE REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Indiana 0-20625 35-1898425
(State or jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
8888 KEYSTONE CROSSING, SUITE 1200
INDIANAPOLIS, INDIANA 46240
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 574-3531
Not applicable
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
The following exhibits are filed with this report pursuant to Regulation S-
K Item 601(b) in lieu of filing the otherwise required exhibits to the
registration statement on Form S-3 of the Registrant and Duke Realty Limited
Partnership, file no. 33-61361, under the Securities Act of 1933, as amended
(the "Registration Statement"), and which, as this Form 8-K filing is
incorporated by reference in the Registration Statement, is set forth in full in
the Registration Statement.
Exhibit
Number Exhibit
- ------- -------
1.1 Distribution Agreement dated as of April 29, 1996.
4 Supplemental Indenture dated as of April 29, 1996 between Duke
Realty Limited Partnership and The First National Bank of
Chicago, with attached exhibits of form of Fixed Rate Note and
form of Floating Rate Note.
5 Opinion of Bose McKinney & Evans, including consent.
8 Tax Opinion of Bose McKinney & Evans, including consent.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
General Partner
Date: July 12, 1996 By: /s/ Dennis D. Oklak
-----------------------------
Dennis D. Oklak
Vice President
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EXHIBIT 1.1
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
April 29, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
FIRST CHICAGO CAPITAL MARKETS, INC.
One First National Plaza
Chicago, Illinois 60670
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
Dear Sirs:
Duke Realty Limited Partnership, an Indiana limited partnership
(the "Operating Partnership"), confirms its agreement with Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, First Chicago Capital
Markets, Inc., Goldman, Sachs & Co. and J.P. Morgan Securities Inc. (each, an
"Agent", and collectively, the "Agents") with respect to the issue and sale by
the Operating Partnership of its Medium-Term Notes Due Nine Months or More From
Date of Issue (the "Notes"). The Notes are to be issued pursuant to an
indenture, dated as of September 19, 1995, as amended, supplemented or modified
from time to time, including the First Supplemental Indenture thereto dated as
of September 19, 1995 (the "Indenture"), between the Operating Partnership and
The First National Bank of Chicago, as trustee (the "Trustee"). As of the date
hereof, the Operating Partnership has authorized the issuance and sale of up to
U.S.$110,000,000 aggregate initial offering price (or its equivalent,
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based upon the applicable exchange rate at the time of issuance, in such foreign
or composite currencies as the Operating Partnership shall designate at the time
of issuance) of Notes to or through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Operating Partnership may from
time to time authorize the issuance of additional Notes and that such additional
Notes may be sold to or through the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
This Agreement provides both for the sale of Notes by the
Operating Partnership to one or more Agents as principal for resale to investors
and other purchasers and for the sale of Notes by the Operating Partnership
directly to investors (as may from time to time be agreed to by the Operating
Partnership and the applicable Agent), in which case such Agent will act as an
agent of the Operating Partnership in soliciting purchases of the Notes.
Duke Realty Investments, Inc. (the "Company") and the Operating
Partnership have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 (No. 33-61361) for the registration of debt
securities of the Operating Partnership, including the Notes, and of common
stock, preferred stock and depositary shares of the Company under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 430A or Rule 415 of the rules and regulations of
the SEC under the 1933 Act (the "1933 Act Regulations"). Such registration
statement has been declared effective by the SEC and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (and any further registration statements which may
be filed by the Operating Partnership for the purpose of registering additional
Notes and in connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part thereof
(including in each case the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations), and any prospectus
supplement and pricing supplement relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act") or the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus," respectively, except that if
any revised prospectus shall be provided to the Agents by the Operating
Partnership for use in connection with the offering of the Notes, whether or not
such revised prospectus is required to be filed by the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus" shall
refer to such revised prospectus from and after the time it is first provided to
the Agents for such use.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated
herein and subject to the reservation by the Operating Partnership of the right
to sell Notes directly on its own behalf, the Operating Partnership hereby
agrees that Notes will be sold exclusively to or through the Agents. The
Operating Partnership agrees that it will not appoint any other agents to act on
its behalf, or to assist it, in the placement of the Notes.
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(b) SALE OF NOTES. The Operating Partnership shall not sell or
approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Operating Partnership from time to time or in excess
of the aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any
obligation to purchase Notes from the Operating Partnership as principal, but
one or more Agents may agree from time to time to purchase Notes as principal
for resale to investors and other purchasers determined by such Agent or Agents.
Any such purchase of Notes by an Agent as principal shall be made in accordance
with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the
Operating Partnership, such Agent, acting solely as agent for the Operating
Partnership and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Operating Partnership, orally, each offer to
purchase Notes solicited by it on an agency basis, other than those offers
rejected by such Agent. Such Agent shall have the right, in its discretion
reasonably exercised, to reject any proposed purchase of Notes, as a whole or in
part, and any such rejection shall not be deemed a breach of its agreement
contained herein. The Operating Partnership may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Operating Partnership in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it and accepted by
the Operating Partnership. Such Agent shall not have any liability to the
Operating Partnership in the event that any such purchase is not consummated for
any reason. If the Operating Partnership shall default on its obligation to
deliver Notes to a purchaser whose offer it has accepted, the Operating
Partnership shall (i) hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Operating Partnership and
(ii) notwithstanding such default, pay to such Agent any commission to which it
would otherwise be entitled.
(e) RELIANCE. The Operating Partnership and the Agents agree
that any Notes purchased by one or more Agents as principal shall be purchased,
and any Notes the placement of which an Agent arranges as agent shall be placed
by such Agent, in reliance on the representations, warranties, covenants and
agreements of the Operating Partnership contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Operating Partnership represents and warrants to the
Agents as of the date hereof, as of the date of each acceptance by the Operating
Partnership of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to one or more Agents as principal or through an Agent as agent)
(the date of each such delivery to one or more Agents as principal being
hereafter referred to as a "Settlement Date"), and as of any time that the
Registration Statement or the Prospectus shall be amended or supplemented or
there is filed with the SEC any document
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incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date"), as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. The Registration
Statement and the Prospectus, at the time the Registration Statement became
effective and at each time thereafter at which an Annual Report on Form 10-K was
filed by the Company with the SEC, complied, and as of each applicable
Representation Date will comply, in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder (the "1939 Act Regulations"); the
Registration Statement, at the time it became effective and at each time
thereafter at which an Annual Report on Form 10-K was filed by the Company with
the SEC, did not, and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on Form 10-K is
filed by the Company with the SEC and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and the Prospectus, as of the date hereof, does not, and as of each
Representation Date will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company or the Operating Partnership in writing by the Agents expressly for
use in the Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of Eligibility on
Form T-1 under the 1939 Act (the "Statement of Eligibility") of the Trustee
under the Indenture. Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and prospectus supplement filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied or will comply when
so filed in all material respects with the 1933 Act and the 1933 Act Regulations
thereunder.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the SEC, complied and will comply, as the case may be, in all material respects
with the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the time the Registration
Statement became effective, as of each Representation Date or during the period
specified in Section 4(e) hereof, did not and will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(iii) ACCOUNTANTS. KPMG Peat Marwick LLP, the accounting firm
that audited the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and Prospectus, are
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independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements (including
the notes thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial position
of the respective entity or entities presented therein at the respective dates
indicated and the results of their operations for the respective periods
specified; except as otherwise stated in the Registration Statement and
Prospectus, said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information required to be
stated therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, pro forma) included the Prospectus under the caption "Selected
Consolidated Financial Data" and in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of the
SEC. The financial information and data included in the Registration Statement
and the Prospectus present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus and
the books and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance with
the applicable requirements of the 1933 Act, the 1933 Act Regulations and
guidelines of the American Institute of Certified Public Accountants with
respect to pro forma financial information and includes all adjustments
necessary to present fairly the pro forma financial position of the Operating
Partnership and the Company, as applicable, at the respective dates indicated
and the results of operations for the respective periods specified.
(v) NO STOP ORDER. No stop order suspending the effectiveness
of the Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Operating Partnership, threatened by the Commission or by the state securities
authority of any jurisdiction. No order preventing or suspending the use of the
Prospectus has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction.
(vi) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the Company, the
Operating Partnership and any of their respective subsidiaries, whether or not
arising in the ordinary course of business; (B) there has been no adverse
change, material to the Duke Group (as hereinafter defined) as a whole, in the
condition, financial or otherwise, or in the earnings, assets, business affairs
or business prospects of any of the real properties owned, directly or
indirectly,
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by the Company, the Operating Partnership or any subsidiary (the "Properties")
or any entity wholly or partially owned by the Company, the Operating
Partnership or any subsidiary which owns any Property (a "Property Partnership")
(the Company, the Operating Partnership, the subsidiaries and the Property
Partnerships are hereinafter jointly referred to as the "Duke Group") , whether
or not arising in the ordinary course of business; (C) no material casualty loss
or material condemnation or other material adverse event with respect to any
Property has occurred; (D) there have been no transactions or acquisitions
entered into by the Duke Group, other than those in the ordinary course of
business, which are material with respect to the Duke Group as a whole; (E)
neither the Company, the Operating Partnership nor any of their respective
subsidiaries has incurred any obligation or liability, direct, contingent or
otherwise which is material to the Duke Group as a whole; (F) there has been no
material change in the short-term debt or long-term debt of the Duke Group as a
whole; (G) except for regular quarterly dividends on the Company's Common Stock,
$.01 par value (the "Common Stock"), and dividends on the Preferred Stock in
amounts per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock; and (H) with the exception of transactions in
connection with stock option and dividend reinvestment plans, the issuance of
shares of Common Stock upon the exchange of partnership interests in the
Operating Partnership ("Units") and the issuance of Units in connection with the
acquisition of real or personal property, there has been no change in the
capital stock of the Company or in the partnership interests, as the case may
be, of the Company, the Operating Partnership or any subsidiary.
(vii) DUE FORMATION. Each of the Company and the Operating
Partnership has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power and
authority to conduct the business in which it is engaged or proposes
to engage and to own, lease and operate its properties as described in
the Prospectus and to enter into and perform its obligations under
this Agreement and the Indenture.
(viii) SUBSIDIARIES. Each of the Company's and the Operating
Partnership's subsidiaries has been duly formed, and is validly
existing and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with partnership or
corporate power and authority to conduct the business in which it is
engaged or proposes to engage and to own, lease and operate its
properties as described in the Prospectus.
(ix) QUALIFICATION. Each of the Company, the Operating
Partnership, their respective subsidiaries and the Property
Partnerships is duly qualified or registered as a foreign partnership
or corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial
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or otherwise, or the earnings, assets, business affairs or business
prospects of the Duke Group considered as a single enterprise (a
"Material Adverse Effect").
(x) PARTNER'S EQUITY AND UNITS. All the issued and
outstanding Units have been duly authorized and are validly issued,
fully paid and non-assessable, except as provided under Indiana Code
Section 23-16-7-8, and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws).
(xi) SUBSIDIARY CAPITAL STOCK. All of the issued and outstanding
shares of capital stock and partnership interests, as the case may be,
of each subsidiary have been validly issued and fully paid and, other
than the Property Partnerships, Duke Realty Services Limited
Partnership (the "Services Partnership") and Duke Construction Limited
Partnership (the "Construction Partnership"), are owned by the
Company, the Operating Partnership or a subsidiary, in each case free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity
other than the subsidiaries and the Property Partnerships, except for
such interests as, in the aggregate, are not material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered as a single
enterprise. Duke Services, Inc. is the sole general partner and a 1%
owner of the Services Partnership, and the Operating Partnership and
DMI Partnership are the sole limited partners and 9% and 90% owners,
respectively, of the Services Partnership. The Services Partnership
is the sole general partner and a 1% owner of the Construction
Partnership. The 99% limited partnership interest of the Construction
Partnership is owned by Duke Realty Construction, Inc., an Indiana
corporation which is owned 4.04% by the Services Partnership and
95.96% by DMI Partnership.
(xii) NO RIGHTS, WARRANTS OR OPTIONS. Except for
transactions described in the Prospectus and transactions in
connection with stock option and dividend reinvestment plans, there
are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or partnership or other equity interest in the
Company, the Operating Partnership or any subsidiary except for the
Units which may be issued in exchange for shares of Common Stock.
(xiii) DUE FORMATION AND QUALIFICATION OF THE PROPERTY
PARTNERSHIPS. Each of the Property Partnerships has been duly formed
as a partnership or a limited liability company, as the case may be,
and is validly existing and in good standing as a partnership or
limited liability company under the laws of its jurisdiction of
organization and, if formed under the laws of a jurisdiction other
than the State of Indiana, in good standing under the laws of such
jurisdiction; each of the Property Partnerships has the requisite
power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged and to enter into and
perform its respective obligations under the agreements, to which it
is a party. Each of the
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partnership or operating agreements, as the case may be, of the
Property Partnerships is in full force and effect.
(xiv) AUTHORIZATION AND VALIDITY OF THE NOTES. The Notes are
in the form contemplated in the Indenture, have been duly authorized
by the Operating Partnership for issuance, offer and sale pursuant to
this Agreement and, when executed authenticated, issued and delivered
in the manner provided for in this Agreement and the Indenture,
against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Operating Partnership entitled
to the benefits of the Indenture and such Notes will be enforceable
against the Operating Partnership in accordance with their terms,
except as such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other similar
laws affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Upon payment of the purchase price and delivery of such Notes in
accordance herewith, each of the purchasers thereof will receive good,
valid and marketable title to such Notes, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of the Notes conform to all statements and
descriptions related thereto in the Prospectus.
(xv) VIOLATION OF CHARTER, BY-LAWS, ETC.. None of the
entities comprising the Duke Group is in violation of its charter,
by-laws, certificate of limited partnership or partnership agreement,
as the case may be, or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may
be bound, or to which any of its property or assets is subject, which
default separately or in the aggregate would have a Material Adverse
Effect.
(xvi) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT. This
Agreement has been duly and validly authorized, executed and delivered
by the Operating Partnership and, upon execution and delivery by the
Agents, will constitute a valid and legally binding obligation of the
Operating Partnership, enforceable in accordance with its terms.
(xvii) AUTHORIZATION AND VALIDITY OF THE INDENTURE. The
Indenture (A) has been duly qualified under the 1939 Act, has been
duly and validly authorized, executed and delivered by the Operating
Partnership and constitutes a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its terms, and
(B) conforms in all material respects to the description thereof in
the Prospectus.
(xviii) AUTHORIZATION OF PARTNERSHIP AGREEMENTS. Each of the
partnership agreements to which any of the Company, the Operating
Partnership or their respective subsidiaries is a party has been duly
authorized, executed and delivered by such party and constitutes a
valid and binding obligation thereof, enforceable in accordance with
its terms.
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(xix) NO DEFAULTS. The execution and delivery of this
Agreement, the Indenture and the Notes, the performance of the
obligations set forth herein or therein, and the consummation of the
transactions contemplated hereby and thereby or in the Prospectus by
the Company and the Operating Partnership, will not conflict with or
constitute a breach or violation by the Company or the Operating
Partnership of, or default under, or result in the creation of
imposition of any lien, charge or encumbrance upon any Property or
assets of the Duke Group pursuant to any contract, indenture,
mortgage, loan agreement, note, lease, joint venture or partnership
agreement or other instrument or agreement to which the Company, the
Operating Partnership or any subsidiary is a party or by which they,
either of them, any of their respective properties or other assets or
any Property may be bound or subject which is material to the Duke
Group as a whole; nor will such action conflict with or constitute a
breach or violation by the Company or the Operating Partnership of, or
default under, (A) the charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, of the
Company, the Operating Partnership or any subsidiary or (B) to the
extent it is material, any applicable law, rule, order, administrative
regulation or administrative or court decree.
(xx) LABOR DISPUTES. No labor dispute with the employees of the
Duke Group exists or, to the knowledge of the Operating Partnership,
is imminent; and the Operating Partnership is aware of no existing or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors which might be expected to
have a Material Adverse Effect.
(xxi) LEGAL PROCEEDINGS; CONTRACTS. There is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Operating Partnership, threatened against or affecting any entity
belonging to the Duke Group, any Properties or any officer or director
of the Company, which is material to the Duke Group as a whole and is
required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein), or that, if determined
adversely to any entity belonging to the Duke Group or any Property,
or any such officer or director, will or could reasonably be expected
to result in any Material Adverse Effect, or which might materially
and adversely affect the Properties or assets of the Duke Group or
which might materially and adversely affect the consummation of this
Agreement, the Indenture, or the transactions contemplated herein and
therein. There are no pending legal or governmental proceedings to
which any entity belonging to the Duke Group is a party or of which
they or any of their respective properties or assets or any Property
or Property Partnership is the subject, including ordinary routine
litigation incidental to the business, that are, considered in the
aggregate, material to the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Duke
Group as a whole. There are no statutes or contracts or documents of
the entities comprising the Duke Group which are required to be filed
as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
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(xxii) REGULATORY APPROVALS. No authorization, approval,
consent or order of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Operating Partnership of the transactions
contemplated by this Agreement or the Indenture, except such as may be
required under the 1933 Act, 1933 Act Regulations, the 1939 Act or the
1939 Act Regulations or state or foreign securities laws or real
estate syndication laws or such as have been received prior to the
date of this Agreement.
(xxiii) QUALIFICATION AS REAL ESTATE INVESTMENT TRUST. At all
times since February 13, 1986, the Company has been, and upon the sale
of any Notes, the Company will continue to be, organized and operated
in conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code.
(xxiv) INVESTMENT COMPANY ACT. None of the entities
comprising the Duke Group is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), or is or
will become a "holding company" or a "subsidiary company" of a
"registered holding company" as defined in the Public Utility Holding
Company Act of 1935, as amended.
(xxv) INTELLECTUAL PROPERTY. None of the entities comprising
the Duke Group is required to own or possess any trademarks, service
marks, trade names or copyrights not now lawfully owned, possessed or
licensed in order to conduct the business now operated by such entity.
(xxvi) LICENSES. Each entity belonging to the Duke Group
possesses such material certificates, authorizations or permits issued
by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it, and none of the entities comprising
the Duke Group has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(xxvii) REGISTRATION RIGHTS. There are no persons with
registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company or the Operating Partnership under the 1933 Act.
(xxviii) RATINGS. The Notes are rated Baa2 by Moody's Investors
Service, Inc. and BBB by Standard & Poor's Corporation.
(xxix) PROPERTIES AND ASSETS. (A) With respect to the
Properties, the Company or the Operating Partnership and the Property
Partnerships have good and
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marketable title to all items of real property (and improvements
thereon), leasehold interests and general and limited partnership
interests, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are (i)
described in the Prospectus or the Company's Annual Report on Form 10-K
for the most recent fiscal year ended, (ii) referred to in the title
policies of such Properties, (iii) serving as security for loans
described in the Prospectus, and (iv) nonmaterial and placed on a
Property in connection with such Property's development; (B) all
contracts of the Operating Partnership and any subsidiary to provide
leasing, property management and construction management services,
general contractor services for third parties, and real estate
development, construction and miscellaneous tenant services businesses
(the "Related Businesses"), are enforceable by and in the name of the
Operating Partnership and the applicable subsidiary, as the case may
be; (C) all liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties or Related Businesses and the assets of
the entities comprising the Duke Group which are required to be
disclosed in the Prospectus are disclosed therein; (D) neither the
Operating Partnership, any Property Partnership nor any tenant of any
of the Properties is in default under any of the ground leases (as
lessee) or space leases (as lessor) relating to, or any of the
mortgages or other security documents or other agreements encumbering
or otherwise recorded against, the Properties, and none of the entities
comprising the Duke Group knows of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default
under any of such documents or agreements, other than such defaults
that would not have a Material Adverse Effect; (E) no tenant under any
of the leases, pursuant to which the Operating Partnership or any
Property Partnership, as lessor, leases its Property, has an option or
right of first refusal to purchase the premises demised under such
lease, the exercise of which would have a Material Adverse Effect; (F)
each of the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties),
except for such failures to comply that would not individually or in
the aggregate have a Material Adverse Effect; and(G) the Operating
Partnership has no knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding or action that will in
any manner affect the size of, use of, improvements on, construction on
or access to the Properties, except such proceedings or actions that
would not have a Material Adverse Effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business
prospects of or with respect to such Property, the Operating
Partnership or the Property Partnership owning an interest in such
Property.
(xxx) NO CROSS-DEFAULT OR CROSS-COLLATERALIZATION. The
mortgages and deeds of trust encumbering the Properties and assets
described in the Prospectus are not convertible and none of the
Property Partnerships nor any person related to or affiliated with the
Property Partnerships holds a participating interest therein and said
mortgages and deeds of trust are not cross-defaulted or
cross-collateralized with any property not owned by the Operating
Partnership.
(xxxi) INSURANCE. Each of the Company, the Operating
Partnership and their respective subsidiaries is insured by insurers
of recognized financial
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responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
none of the Company, the Operating Partnership and their respective
subsidiaries has any reason to believe that it or any of its
subsidiaries will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its businesses at a
cost that would not have a Material Adverse Effect, except as described
in or contemplated by the Registration Statement and the Prospectus.
(xxxii) PROHIBITED ACTION. The Company and the Operating
Partnership have not taken and will not take, directly or indirectly,
any action prohibited by Rule 10b-6 under the 1934 Act.
(xxxiii) ERISA. The assets of the Company do not constitute
"plan assets" under the Employee Retirement Income Security Act of
1974, as amended.
(xxxiv) HAZARDOUS MATERIALS. Except as disclosed in the
Prospectus, and, with respect to clauses (A), (B) and (C) below,
except for activities, conditions, circumstances or matters that would
not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, business affairs or business
prospects of or with respect to any Property or the Property
Partnership owning an interest in such Property, (A) each Property,
including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance (as
defined below), (B) neither the Company nor the Operating Partnership
nor any Property Partnership has caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition
exists on, in, under or, to the knowledge of the Operating
Partnership, that could result in the incurrence of material
liabilities or any material violations of any Environmental Law (as
defined below), give rise to the imposition of any Lien (as defined
below) under any Environmental Law, or cause or constitute a health,
safety or environmental hazard to any property, person or entity; (C)
neither the Company, the Operating Partnership nor any Property
Partnership is engaged in or intends to engage in any manufacturing or
any other operations at the Properties that (1) require the use,
handling, transportation, storage, treatment or disposal of any
Hazardous Substance or (2) require permits or are otherwise regulated
pursuant to any Environmental Law, other than permits which have been
obtained; (D) neither the Company nor the Operating Partnership nor
any Property Partnership has received any notice of a claim material
to the Duke Group as a whole under or pursuant to any Environmental
Law or under common law pertaining to Hazardous Substances on or
originating from any Property; (E) neither the Company nor the
Operating Partnership nor any Property Partnership has received any
notice from any Governmental Authority (as defined below) claiming any
violation of any Environmental Law; and (F) no Property is included
or, to the knowledge of the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection
Agency (the "EPA") or, with the exception of one Property, in respect
to which the EPA has advised the Operating Partnership that no further
remedial action is
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planned, on the Comprehensive Environmental Response, Compensation, and
Liability Information System database maintained by the EPA, and has
not otherwise been identified by the EPA as a potential CERCLA removal,
remedial or response site or included or, to the knowledge of the
Operating Partnership, proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other Environmental Law.
Excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or located at
any Property, as used herein "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, toxic waste or similarly designated
materials, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. Section 172.101, as the same may now or hereafter be amended, or
in the EPA's List of Hazardous Substances and Reportable Quantities, 40
C.F.R. Part 3202, as the same may now or hereafter be amended);
"Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.), the
Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.), the Clean
Water Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et seq.),
the Occupational Safety and Health Act of 1970, as amended (29 U.S.C.
Section 651, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Section 1801, et seq.), and all other federal, state
and local laws, ordinances, regulations, rules, orders, decisions and
permits relating to the protection of the environments or of human
health from environmental effects; "Governmental Authority" shall mean
any federal, state or local governmental office, agency or authority
having the duty or authority to promulgate, implement or enforce any
Environmental Law; "Lien" shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in, on
or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
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(xxxv) TITLE INSURANCE. Each of the Company, the Operating
Partnership and their subsidiaries has obtained title insurance on all
of the properties owned by each of them in an amount at least equal to
(A) the cost to acquire land and improvements in the case of an
acquisition of improved property or (B) the cost to acquire land in
the case of an acquisition of unimproved property and in each case
such title insurance is in full force and effect.
(xxxvi) TAXES. Each of the Company and the Operating
Partnership has filed all federal, state, local and foreign income tax
returns which have been required to be filed (except in any case in
which the failure to so file would not have a material adverse effect
on the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of such entity) and has paid
all taxes required to be paid and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is
due and payable, except, in all cases, for any such tax, assessment,
fine or penalty that is being contested in good faith.
(xxxvii) DOING BUSINESS WITH CUBA. The Company and the
Operating Partnership have complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
officer of the Company, the Operating Partnership or of any of their respective
subsidiaries and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by such
entity to such Agent or Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto.
SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent
and the Operating Partnership, Notes shall be purchased by such Agent as
principal. Such purchases shall be made in accordance with terms agreed upon by
one or more Agents and the Operating Partnership (which terms, unless otherwise
agreed, shall, to the extent applicable, include those terms specified in
Exhibit A hereto and be agreed upon orally, with written confirmation prepared
by such Agent or Agents and mailed to the Operating Partnership). An Agent's
commitment to purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Unless the
context otherwise requires, references herein to "this Agreement" shall include
the agreement of one or more Agents to purchase Notes from the Operating
Partnership as principal. Each purchase of Notes, unless otherwise agreed,
shall be at a discount from the principal amount of each such Note equivalent to
the applicable commission set forth in Schedule A hereto. The Agents may engage
the services of any other broker or dealer in connection with the resale of the
Notes purchased by them as principal and may allow any portion of the discount
received in connection with such purchases from the Operating Partnership to
such brokers and dealers. At the time of each purchase of Notes by
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one or more Agents as principal, such Agent or Agents shall specify the
requirements for the stand-off agreement, officers' certificate, opinions of
counsel and comfort letter pursuant to Sections 4(k), 7(b), 7(c) and 7(d)
hereof.
(b) SOLICITATIONS AS AGENT. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, when agreed by the Operating Partnership and an Agent, such Agent, as
an agent of the Operating Partnership, will use its reasonable efforts to
solicit offers to purchase the Notes upon the terms and conditions set forth
herein and in the Prospectus. The Agents are not authorized to appoint
sub-agents with respect to Notes sold through them as agent. All Notes sold
through an Agent as agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Operating Partnership and such Agent.
The Operating Partnership reserves the right, in its sole
discretion, to suspend solicitation of purchases of the Notes through an Agent,
as agent, commencing at any time for any period of time or permanently. As soon
as practicable after receipt of instructions from the Operating Partnership,
such Agent will suspend solicitation of purchases from the Operating Partnership
until such time as the Operating Partnership has advised such Agent that such
solicitation may be resumed.
The Operating Partnership agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Operating Partnership as a result of a
solicitation made by such Agent as set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest
rate or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Operating Partnership
and the applicable Agent or Agents and specified in a pricing supplement to the
Prospectus (each, a "Pricing Supplement") to be prepared in connection with each
sale of Notes. Except as may be otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of U.S. $1,000 or any
larger amount that is an integral multiple of U.S. $1,000. Administrative
procedures with respect to the sale of Notes shall be agreed upon from time to
time by the Operating Partnership, the Agents and the Trustee (the
"Procedures"). The Agents and the Operating Partnership agree to perform, and
the Operating Partnership agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. COVENANTS OF THE OPERATING PARTNERSHIP.
The Operating Partnership covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Operating Partnership will
notify the Agents immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the SEC for filing of any amendment or supplement to the
Prospectus or any document to be filed pursuant to the 1934
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Act (other than any amendment, supplement or document relating solely to
securities other than the Notes), (iii) the receipt of any comments from the SEC
with respect to the Registration Statement or the Prospectus, (iv) any request
by the SEC for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) the issuance by
the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose and (vi) any
change in the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Operating Partnership or the public
announcement by any nationally recognized statistical rating organization that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Operating Partnership. The Operating
Partnership will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Operating
Partnership will give the Agents advance notice of its intention to file or
prepare any additional registration statement with respect to the registration
of additional Notes, any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (other than an amendment or supplement
providing solely for a change in the interest rate or formula applicable to the
Notes or a change relating solely to securities other than the Notes), whether
by filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
and will furnish to the Agents copies of any such amendment or supplement or
other documents proposed to be filed or used a reasonable time in advance of
such proposed filing or use, as the case may be, and will not file any such
amendment or supplement or other documents in a form to which the Agents or
counsel for the Agents shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Operating Partnership will deliver to the Agents as many signed and
conformed copies of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
the Agents reasonably request. The Operating Partnership will furnish to the
Agents as many copies of the Prospectus (as amended or supplemented) as the
Agents reasonably request so long as the Agents are required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Operating
Partnership will prepare, with respect to any Notes to be sold to or through one
or more Agents pursuant to this Agreement, a Pricing Supplement with respect to
such Notes in a form previously approved by the Agents and will file such
Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later than
the close of business of the SEC on the fifth business day after the date on
which such Pricing Supplement is first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (l) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Agents or counsel for
the Operating Partnership, to amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a material fact or omit
to
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state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Operating Partnership shall give immediate notice,
confirmed in writing, to the Agents to cease the solicitation of offers to
purchase the Notes in their capacity as agents and to cease sales of any Notes
they may then own as principal, and the Operating Partnership will promptly
amend the Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Operating Partnership with
respect to each of the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Operating
Partnership shall furnish such information to the Agents, confirmed in writing,
and shall cause the Prospectus to be amended or supplemented to include or
incorporate by reference financial information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(g) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION.
Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Operating Partnership for the preceding fiscal year, the Operating Partnership
shall furnish such information to the Agents, confirmed in writing, and shall
cause the Registration Statement and the Prospectus to be amended, whether by
the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise,
to include or incorporate by reference such audited financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) EARNINGS STATEMENTS. The Operating Partnership will make
generally available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering each twelve month period beginning, in each case, not
later than the first day of the Operating Partnership's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) BLUE SKY QUALIFICATIONS. The Operating Partnership will
endeavor, in cooperation with the Agents, to qualify the Notes for offering and
sale under the applicable securities laws and real estate syndication laws of
such states and other jurisdictions of the
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United States as the Agents may designate, and will maintain such qualifications
in effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Operating Partnership shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Operating Partnership
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Operating Partnership will promptly advise the Agents of the receipt by the
Operating Partnership of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 ACT FILINGS. The Operating Partnership, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act in connection with sales of the Notes, will file all documents required
to be filed with the SEC pursuant to Section 13, 14 or 15 of the 1934 Act within
the time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) STAND-OFF AGREEMENT. If specified by the applicable Agent
or Agents in connection with a purchase of Notes as principal, between the date
of the agreement to purchase such Notes and the Settlement Date with respect to
such purchase, the Operating Partnership will not, without the prior written
consent of such Agent or Agents, offer or sell, grant any option for the sale
of, or enter into any agreement to sell, any debt securities of the Operating
Partnership (other than the Notes that are to be sold pursuant to such agreement
and commercial paper in the ordinary course of business).
(l) SUSPENSION OF CERTAIN OBLIGATIONS. The Operating
Partnership shall not be required to comply with the provisions of subsection
(e), (f) or (g) of this Section during any period from the time (i) the Agents
shall have suspended solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Operating Partnership and (ii) no Agent
shall then hold any Notes purchased as principal pursuant hereto, until the time
the Operating Partnership shall determine that solicitation of purchases of the
Notes should be resumed or an Agent shall subsequently purchase Notes from the
Operating Partnership as principal.
(m) QUALIFICATION AS REAL ESTATE INVESTMENT TRUST. The Company
will use its best efforts to meet the requirements to qualify as a "real estate
investment trust" under the Code for the taxable year in which sales of the
Notes are to occur, unless otherwise specified in the Prospectus.
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SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agent of the Operating Partnership, and
the obligations of any purchasers of the Notes sold through an Agent as agent,
will be subject to the accuracy of the representations and warranties on the
part of the Operating Partnership herein and to the accuracy of the statements
of the officers of the Company, as general partner of the Operating Partnership,
made in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Operating Partnership of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to counsel for the Agents:
(1) OPINION OF OPERATING PARTNERSHIP COUNSEL. The
favorable opinion of Bose McKinney & Evans, counsel for the Operating
Partnership, to the effect that:
(i) The Company is a corporation duly
organized and existing under and by virtue of the laws of the
State of Indiana, has filed its most recent annual report required
by law with the Secretary of State of Indiana or is not yet
required to file such annual report, and has not filed Articles of
Dissolution. The Company has corporate power and authority to
conduct the business in which it is engaged or proposes to engage
and to own, lease and operate its properties as described in the
Prospectus. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Company or any Property.
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue of
the laws of the State of Indiana. The Operating Partnership has
partnership power and authority to conduct the business in which
it is engaged and proposes to engage and to own, lease and
operate its properties as described in the Prospectus and to
enter into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business
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prospects of the Operating Partnership or any Property or Related
Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property Partnerships)
has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power
and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties
as described in the Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation
in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Duke Group considered as a single enterprise.
(v) All the issued and outstanding Units have
been duly authorized and are validly issued, fully paid and non-
assessable, except as provided under Indiana Code Section
23-16-7-8.
(vi) All of the issued and outstanding shares
of capital stock and partnership interests, as the case may be,
of each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and are owned by
the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(vii) Each of the Property Partnerships has
been duly formed as a partnership or a limited liability company,
as the case may be, and is validly existing and in good standing
as a partnership or a limited liability company under of the laws
of its jurisdiction of organization; each Property Partnership
has all requisite power and authority to own, lease and operate
the Properties, to conduct the business in which it is engaged
and to enter into and perform its respective obligations under
the agreements to which it is a party. Each of the partnership
or operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(viii) The Notes are in the form contemplated
in the Indenture, have been duly authorized by the Operating
Partnership for issuance, offer and sale pursuant to this
Agreement and, when executed
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authenticated, issued and delivered in the manner provided for in
this Agreement and the Indenture, against payment of the
consideration therefor, will constitute valid and legally binding
obligations of the Operating Partnership entitled to the benefits
of the Indenture and such Notes will be enforceable against the
Operating Partnership in accordance with their terms, except as
such enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). Upon payment of the purchase price and delivery of such
Notes in accordance herewith, each of the purchasers thereof will
receive good, valid and marketable title to such Notes, which to
such counsel's knowledge, after due inquiry, are free and clear
of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the Notes
conform to all statements and descriptions related thereto in the
Prospectus.
(ix) To the best knowledge of such counsel,
none of the entities comprising the Duke Group is in violation of
its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any
of the property or assets of such entity is subject, except for
defaults which are not material to the Duke Group as a whole.
(x) This Agreement has been duly and validly
authorized, executed and delivered by the Operating Partnership
and the Operating Partnership has the power and authority to
perform its obligations hereunder.
(xi) The Indenture has been duly qualified
under the 1939 Act and has been duly and validly authorized,
executed and delivered by the Operating Partnership, and, assuming
due authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Operating
Partnership, enforceable in accordance with its terms, except as
such enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). The Indenture conforms in all material respects to the
descriptions thereof contained in the Prospectus.
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(xii) Each of the partnership agreements to
which any of the Company, the Operating Partnership or their
respective subsidiaries identified in an exhibit to such
counsel's opinion is a party has been duly authorized, executed
and delivered by such party and constitutes a valid and binding
obligation thereof, enforceable in accordance with its terms,
except as such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other
similar laws affecting the rights and remedies of creditors
generally and (2) subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xiii) The execution and delivery of this
Agreement, the Indenture and the Notes, the performance of the
obligations set forth herein or therein, and the consummation of
the transactions contemplated hereby and thereby or in the
Prospectus by the Operating Partnership, will not conflict with or
constitute a breach or violation by the Operating Partnership of,
or default under, or result in the creation of imposition of any
lien, charge or encumbrance upon Property or assets of the Duke
Group pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement known to such counsel, after due
inquiry, to which the Operating Partnership or any subsidiary is a
party or by which they, any of their respective properties or
other assets or any Property may be bound or subject which is
material to the Duke Group as a whole; nor will such action
conflict with or constitute a breach or violation by the Operating
Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as
the case may be, of the Operating Partnership or any subsidiary or
(B) to the extent it is material, any applicable law, rule, order,
administrative regulation or administrative or court decree.
(xiv) Assuming the Company was organized in
conformity with and has satisfied the requirements for
qualification and taxation as a "real estate investment trust"
under the Code for each of its taxable years from and including
the first taxable year for which the Company made the election to
be taxed as a "real estate investment trust", the proposed
methods of operation of the Company, the Operating Partnership
and the Services Partnership as described in the Registration
Statement and as represented by the Company, the Operating
Partnership and the Services Partnership will permit the Company
to continue to qualify to be taxed as a "real estate investment
trust" for its current and subsequent taxable years.
(xv) None of the entities comprising the Duke
Group is required to be registered under the 1940 Act or is or
will become a "holding company" or a "subsidiary company" of a
"registered holding
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company" as defined in the Public Utility Holding Company Act of
1935, as amended.
(xvi) To such counsel's knowledge, after due
inquiry, (i) each entity belonging to the Duke Group possesses
such material certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it, and (ii) none of the entities
comprising the Duke Group has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Duke Group considered as a single
enterprise.
(xvii) No authorization, approval, consent or order
of any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the Notes
hereunder, except such as may be required under the 1933 Act or
the 1933 Act Regulations or the 1939 Act or the 1939 Act
Regulations or state or foreign securities laws, as to which such
counsel need express no opinion, or real estate syndication laws
or such as have been received prior to the date of this
Agreement.
(xviii) Each preliminary prospectus, preliminary
prospectus supplement and prospectus supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(xix) The documents incorporated or deemed to
be incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 under the 1933 Act, at the time they were filed
with the SEC, complied and will comply as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
(xx) The Registration Statement is effective
under the 1933 Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the SEC.
(xxi) At the time the Registration Statement
became effective and at the date hereof, (A) the Registration
Statement and the Prospectus (other than the financial statements
and supporting schedules
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included therein, or the Statement of Eligibility, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and (B) the Prospectus and the Term Sheet, if any,
complied with Rule 434(c)(2).
(xxii) There are no legal or governmental
proceedings pending or, to the best of their knowledge and
information, threatened which are required to be disclosed in the
Registration Statement or the Prospectus, other than those
disclosed therein, and all pending legal or governmental
proceedings to which any of the entities comprising the Duke
Group is a party or to which any of their properties is subject
which are not described in the Registration Statement or the
Prospectus, including ordinary routine litigation incidental to
the business, are, considered in the aggregate, not material.
(xxiii) The information in the Prospectus under
"Certain United States Federal Income Tax Considerations," to the
extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct and presents fairly the
information required to be disclosed therein.
(xxiv) There are no statutes, contracts, inden-
tures, mortgages, loan agreements, notes, leases or other
instruments known to such counsel which are required to be
described or referred to in the Registration Statement or to be
filed as exhibits thereto by the 1933 Act Regulations other than
those described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto are
correct, and to the best knowledge of such counsel, no material
default exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed.
(xxv) To the best knowledge of such counsel,
there are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration
Statement or otherwise registered by the Operating Partnership
under the 1933 Act.
(xxvi) The Operating Partnership satisfies all
conditions and requirements for filing the Registration Statement
on Form S-3 under the 1933 Act and 1933 Act Regulations.
(2) OPINION OF COUNSEL TO THE AGENTS. The favorable opinion of
Rogers & Wells, counsel to the Agents, (A) with respect to the matters set forth
in Section 5(a)(1)(i) (with respect to the Company only and with respect to the
first sentence
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only), Section 5(a)(1)(viii) (with respect to the first sentence
only), Section 5(a)(1)(x) (with respect to the first clause only),
Section 5(a)(1)(xi) and Section 5(a)(1)(xxi) and (B) containing a
statement similar to the statement referred to in the first paragraph
of Section 5(a)(3).
(3) DISCLOSURE OPINION. In giving their opinions required by
subsections (a)(1) and (a)(2), respectively, of this Section 5, Bose
McKinney & Evans and Rogers & Wells shall additionally state that such
counsel has participated in conferences with officers and other
representatives of the Operating Partnership and the independent
public accountants for the Operating Partnership at which the contents
of the Registration Statement and the Prospectus and related matters
were discussed and in the preparation of the Registration Statement
and the Prospectus and, on the basis of the foregoing, nothing has
come to their attention that would lead them to believe that the
Registration Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Operating Partnership with the SEC
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus, at the date hereof (or, if such
opinion is being delivered in connection with the purchase of Notes by
one or more Agents as principal pursuant to Section 7(c) hereof, at
the date of any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto, as the case
may be) included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke Group
and (B) as to the qualification and good standing of each of the
entities comprising the Duke Group to do business in any jurisdiction,
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, and (C) in respect to the opinion by
Rogers & Wells only, as to certain matters of Indiana law, the opinion
of Bose McKinney & Evans given pursuant to Section 5(a)(1) above.
(b) OFFICER'S CERTIFICATE. At the date hereof, the Agents shall
have received a certificate of the Chief Executive Officer, President or a Vice
President and the chief financial officer or chief accounting officer of the
Company,as general partner of the Operating Partnership, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Prospectus or since the date of any agreement by one
or more Agents to purchase Notes as principal, there has not been any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Operating Partnership and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the representations and warranties of the
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Operating Partnership contained in Section 2 hereof are true and correct with
the same force and effect as though expressly made at and as of the date of such
certificate and (iii) the Operating Partnership has performed or complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate. As used in this Section
5(b), the term "Prospectus" means the Prospectus in the form first provided to
the applicable Agent or Agents for use in confirming sales of the Notes.
(c) COMFORT LETTER OF KPMG PEAT MARWICK LLP. On the date
hereof, the Agents shall have received a letter from KPMG Peat Marwick LLP,
dated as of the date hereof and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent public accountants with
respect to the Company and the Operating Partnership within the
meaning of the 1933 Act and the 1933 Act Regulations.
(ii) It is their opinion that the financial statements
and supporting schedules included in the Registration Statement, or
incorporated by reference therein, and covered by their opinions
therein comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations.
(iii) They have performed limited procedures, not
constituting an audit, including a reading of the latest available
unaudited interim consolidated financial statements of the Company and
the Operating Partnership, a reading of the minute books of the
Company, inquiries of certain officials of the Company and the
Operating Partnership who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe
that (A) the unaudited financial statements of the Company and the
Operating Partnership included in the Registration Statement, or
incorporated by reference therein, do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, or material modifications are
required for them to be presented in conformity with generally
accepted accounting principles, (B) the operating data and balance
sheet data included or incorporated by reference in the Prospectus
were not determined on a basis substantially consistent with that used
in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement, (C) the pro forma financial information included or
incorporated by reference in the Registration Statement was not
determined on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement or (D) at a specified date not more than
five days prior to the date hereof, there has been any change in the
capital stock or the number of partnership interests of the Company,
the Operating Partnership or their subsidiaries, as the case may be,
or any increase in the debt of the Company, the Operating Partnership
or their subsidiaries or any decrease in the net assets of the
Company, the Operating Partnership or their subsidiaries, as compared
with the amounts shown in the most recent consolidated balance sheet
of the Company, the Operating Partnership and their subsidiaries,
included in the Registration Statement or
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incorporated by reference therein, or, during the period from the date
of the most recent consolidated statement of operations included in
the Registration Statement or incorporated by reference therein to a
specified date not more than five days prior to the date hereof, there
were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of
the Company, the Operating Partnership and their subsidiaries, except
in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) In addition to the audit referred to in their
opinions and the limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in the
Registration Statement and the Prospectus and which are specified by
the Agents, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial
and other records of the Company, the Operating Partnership and their
subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date, counsel to the Agents shall have been furnished with such documents and
opinions as such counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as herein contemplated and
related proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Notes as herein contemplated shall be
satisfactory in form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(h) hereof, the provisions concerning payment of expenses under
Section 10 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof, the
provisions relating to governing law and forum set forth in Section 14 and the
provisions relating to parties set forth in Section 15 hereof shall remain in
effect.
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SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by
the Operating Partnership to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Operating
Partnership and deliver such Note to the Operating Partnership and, if such
Agent has theretofore paid the Operating Partnership for such Note, the
Operating Partnership will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Operating Partnership will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Operating Partnership's account.
SECTION 7. ADDITIONAL COVENANTS OF THE OPERATING PARTNERSHIP.
The Operating Partnership covenants and agrees with the Agents
that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
acceptance by the Operating Partnership of an offer for the purchase of Notes
(whether to one or more Agents as principal or through an Agent as agent), and
each delivery of Notes (whether to one or more Agents as principal or through an
Agent as agent), shall be deemed to be an affirmation that the representations
and warranties of the Operating Partnership contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to such Agent or Agents or to the purchaser or its agent,
as the case may be, of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for a change in the interest
rate or formula applicable to the Notes or similar changes, and other than by an
amendment or supplement which relates exclusively to the issuance of securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of securities other than the
Notes), (iii) (if required in connection with the purchase of Notes by one or
more Agents as principal) the Operating Partnership sells Notes to such Agent or
Agents as principal or (iv) if the Operating Partnership issues and sells Notes
in a form not previously certified to the Agents by the Operating Partnership,
the Operating Partnership shall furnish or cause to be furnished to the Agent(s)
forthwith a certificate dated the date of filing with the SEC of such supplement
or document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form satisfactory to the Agent(s) to the effect
that the statements contained in the certificate referred to in Section 5(b)
hereof which were last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as
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of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for a change in the
interest rate or formula applicable to the Notes or similar changes or solely
for the inclusion of additional financial information, and other than by an
amendment or supplement which relates exclusively to the issuance of securities
other than the Notes), (ii) there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K, unless the Agents shall otherwise specify), (iii) (if required in
connection with the purchase of Notes by one or more Agents as principal) the
Operating Partnership sells Notes to such Agent or Agents as principal or (iv)
if the Operating Partnership issues and sells Notes in a form not previously
certified to the Agents by the Operating Partnership, the Operating Partnership
shall furnish or cause to be furnished forthwith to the Agent(s) and to counsel
to the Agents the written opinion of Bose McKinney & Evans, counsel to the
Operating Partnership, or other counsel satisfactory to the Agent(s), dated the
date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form and substance satisfactory to the Agent(s), of the same tenor as the
opinion referred to in Section 5(a)(1) hereof, but modified, as necessary, to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it was dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance);
PROVIDED, HOWEVER, that counsel need not render the opinion required under
Section 5(a)(1)(xiv) upon the filing of any Quarterly Report on Form 10-Q which
does not include information relating to such tax matters, unless the Agents
shall otherwise specify.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i)
the Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement which relates exclusively to the issuance of securities other than
the Notes), (ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial information,
or (iii) (if required in connection with the purchase of Notes by one or more
Agents as principal) the Operating Partnership sells Notes to such Agent or
Agents as principal, the Operating Partnership shall cause KPMG Peat Marwick LLP
forthwith to furnish to the Agent(s) a letter, dated the date of effectiveness
of such amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory to the Agent(s), of the same
tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses
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(iii) and (iv) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Operating Partnership.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). The Operating Partnership
agrees to indemnify and hold harmless each Agent and each person, if any, who
controls such Agent within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Operating Partnership by the Agents expressly for use in the
Registration Statement or the Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Operating Partnership; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by such Agent)
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) INDEMNIFICATION OF OPERATING PARTNERSHIP. The Agents agree
to indemnify and hold harmless the Operating Partnership, the directors of the
Company, each of the officers who signed the Registration Statement, and each
person, if any, who controls the Operating Partnership within the meaning of
Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with
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written information furnished to the Operating Partnership by the Agents
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action with
counsel chosen by it (who shall not, except with the consent of the indemnified
party, be counsel to such indemnified party). In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Operating Partnership and the Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Operating Partnership and the Agents, as
incurred, in such proportions that each Agent is responsible for that portion
represented by the percentage that the commission or underwriting discount
received by such Agent bears to the total sales price from the sale of the Notes
sold to or through such Agent that were the subject of the claim for
indemnification, and the Operating Partnership is responsible for the balance;
PROVIDED, HOWEVER, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9, each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the Operating Partnership, each
officer of the Operating Partnership who signed the Registration Statement, and
each person, if any, who controls the Operating Partnership within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Operating Partnership.
SECTION 10. PAYMENT OF EXPENSES.
The Operating Partnership will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
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(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of Notes in
book-entry form;
(d) The fees and disbursements of the Operating Partnership's
accountants and counsel, of the Trustee and its counsel, and of any calculation
agent or exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the program relating to
the Notes and incurred from time to time in connection with the transactions
contemplated hereby;
(f) The qualification of the Notes under state securities laws
in accordance with the provisions of Section 4(i) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any amendments
thereto, and of the Prospectus and any amendments or supplements thereto, and
the delivery by the Agents of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of the Notes;
(h) The preparation, reproducing and delivery to the Agents of
copies of the Indenture and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses incurred in connection with any
listing of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Operating Partnership; and
(m) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements, contained in this
Agreement or in certificates, of officers of the Company, the Operating
Partnership or of any of their respective subsidiaries submitted pursuant hereto
or thereto shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Agents or any controlling person
of an Agent, or by or on behalf of the Company, the Operating Partnership
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or of any of their respective subsidiaries, and shall survive each delivery of
and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding
any agreement hereunder by one or more Agents to purchase Notes as principal)
may be terminated for any reason, at any time by either the Operating
Partnership or an Agent, as to itself, upon the giving of 10 days' written
notice of such termination to the other party hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL.
The applicable Agent or Agents may terminate any agreement hereunder by such
Agent or Agents to purchase Notes as principal, immediately upon notice to the
Operating Partnership, at any time prior to the Settlement Date relating thereto
(i) if there has been, since the date of such agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of such Agent or Agents, impracticable to market
the Notes or enforce contracts for the sale of the Notes, or (iii) if trading in
any securities of the Company has been suspended by the SEC or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
SEC or any other governmental authority, or if a banking moratorium shall have
been declared by either Federal, New York or Indiana authorities or if a banking
moratorium shall have been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies in which the Notes
are denominated or payable, or (iv) if the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Operating Partnership as of the date of such agreement shall have been lowered
since that date or if any such rating organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of any debt securities of the Operating Partnership, or (v) if there
shall have come to the attention of such Agent or Agents any facts that would
cause them to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at the time of such
delivery, not misleading. As used in this Section 12(b), the term "Prospectus"
means the Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the related Notes.
(c) GENERAL. In the event of any such termination, neither
party will have any liability to the other party hereto, except that (i) the
Agents shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased by it as principal with the intention
33
<PAGE>
of reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Operating Partnership but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(h) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11, 14 and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand, by
mail or by telex, telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company or the Operating Partnership:
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Attention: Darell E. Zink, Jr.
If to the Agents:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
First Chicago Capital Markets, Inc.
One First National Plaza
Suite 0407
Chicago, Illinois 60670
Attention: Senior Credit Officer, Product Risk Management
Telecopy No.: (312) 732-4172
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopy No.: (212) 346-2799
34
<PAGE>
J.P. Morgan Securities Inc.
60 Wall Street
3d Floor
New York, New York 10260
Attention: MTN Trading Desk
Telecopy No.: (212) 648-5207
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW; FORUM.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State. Any
suit, action or proceeding brought by the Operating Partnership against any
Agent in connection with or arising under this Agreement shall be brought solely
in the state or federal court of appropriate jurisdiction located in the Borough
of Manhattan, The City of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon
the Agents and the Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
35
<PAGE>
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Operating Partnership a counterpart
hereof, whereupon this instrument along with all counterparts will become a
binding agreement between the Agents and the Operating Partnership in accordance
with its terms.
Very truly yours,
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.,
its General Partner
By: /s/ Dennis D. Oklak
--------------------------------
Name: Dennis D. Oklak
Title: Vice President & Treasurer
Confirmed and Accepted, as of the date
first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------
Name: Martin J. Cicco
Title: Managing Director
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Linda S. Dawson
---------------------------------
Name:
Title:
36
<PAGE>
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- ----------------------------
(Goldman, Sachs & Co.)
J.P. MORGAN SECURITIES INC.
By: /s/ Keysha Bailey
---------------------------
Name: Keysha Bailey
Title: Vice President
37
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Operating Partnership in connection with each sale of Notes.
Principal Amount: $________________
(or principal amount of foreign currency or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis:
Initial Interest Rate, if any:
Spread and/or Spread Multiplier, if any:
Interest Reset Date(s):
Index Maturity:
Default Rate:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Purchase Price: %, plus accrued interest, if any, from
----- -------
Settlement Date and Time:
Specified Currency:
Exchange Rate Agent:
Authorized Denominations:
Additional/Other Terms:
<PAGE>
Also, in connection with the purchase of Notes by one or more Agents as
principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution
Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Operating
Partnership shall pay the applicable Agent, on a discount basis, a commission
for the sale of each Note equal to the principal amount of such Note multiplied
by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year. . . . . . . . .125%
From 1 year to less than 18 months . . . . . . . .150
From 18 months to less than 2 years. . . . . . . .200
From 2 years to less than 3 years. . . . . . . . .250
From 3 years to less than 4 years. . . . . . . . .350
From 4 years to less than 5 years. . . . . . . . .450
From 5 years to less than 6 years. . . . . . . . .500
From 6 years to less than 7 years. . . . . . . . .550
From 7 years to less than 10 years . . . . . . . .600
From 10 years to less than 15 years. . . . . . . .625
From 15 years to less than 20 years. . . . . . . .700
From 20 years to 30 years. . . . . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . *
- ------------------
* As agreed to by the Operating Partnership and the applicable Agent at
the time of sale.
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
DUKE REALTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
----------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 29, 1996
----------------------
FIXED RATE AND FLOATING RATE
MEDIUM-TERM NOTES DUE NINE MONTHS
OR MORE FROM DATE OF ISSUE
----------------------
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of April 29, 1996, between
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the "Issuer"),
having its principal offices at 8888 Keystone Crossing, Suite 1200,
Indianapolis, Indiana 46420 and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at 14 Wall Street,
Eighth Floor - Window 2, New York, New York 10005.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of September 19, 1995, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Supplemental Indenture to (i)
create a series of debt securities, to be issued from time to time in an
aggregate principal amount not to exceed $110,000,000, entitled "Medium-Term
Notes Due Nine Months or More From Date of Issue" (the "Notes"); and (ii)
establish the forms and the conditions of such Notes.
WHEREAS, the Board of Directors of Duke Realty Investments, Inc., the
general partner of the Issuer, acting through authority delegated to its Finance
Committee, has approved the creation of the Notes and the forms and conditions
thereof.
WHEREAS, the consent of Holders to the execution and delivery of this
Supplemental Indenture is not required, and all other actions required to be
taken under the Original Indenture with respect to this Supplemental Indenture
have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01 DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"FIRST SUPPLEMENTAL INDENTURE" means the First Supplemental Indenture,
dated as of September 19, 1995, between the Issuer and the Trustee.
2
<PAGE>
"FIXED RATE NOTES" means the Issuer's Fixed Rate Notes due nine months
or more from date of issue, a form of which is attached hereto as Exhibit A.
"FLOATING RATE NOTES" means the Issuer's Floating Rate Notes due nine
months or more from date of issue, a form of which is attached hereto as Exhibit
B.
"INDENTURE" means the Original Indenture as supplemented by the First
Supplemental Indenture and by this Second Supplemental Indenture.
"PRICING SUPPLEMENT" means a pricing supplement to the Prospectus,
dated September 7, 1995, as supplemented by the Prospectus Supplement, dated
April 29, 1996, establishing the terms of the applicable Notes.
SECTION 1.02 CREATION OF THE DEBT SECURITIES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as a separate
series of its debt securities issued pursuant to the Indenture. The Notes shall
be issued from time to time in an aggregate principal amount not to exceed
$110,000,000.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each Note will be issued in
fully registered book-entry form or in certificated form, as specified in the
applicable Pricing Supplement. The Fixed Rate Notes shall be in the form of
Exhibit A attached hereto and the Floating Rate Notes shall be in the form of
Exhibit B attached hereto.
SECTION 1.04 TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all of the terms and conditions of the Original Indenture,
as supplemented by this Supplemental Indenture, and in particular, the terms of
the Notes shall be as set forth from time to time in the applicable Notes and
the related Pricing Supplement. All such terms and conditions set forth in such
Notes and in such Pricing Supplement are incorporated by reference into this
Supplemental Indenture. In addition, the provisions of Article 14 of the
Original Indenture shall apply to the Notes.
ARTICLE TWO
TRUSTEE
SECTION 2.01 TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or the due execution thereof by the Issuer. The recitals of fact
contained herein shall be taken as the statements solely of the Issuer, and the
Trustee assumes no responsibility for the correctness thereof.
3
<PAGE>
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01 RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 3.02 EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 3.03 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Supplemental Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 3.04 SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 3.05 GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Supplemental
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 3.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
4
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
as General Partner
By: /s/ Dennis D. Oklak
---------------------------------
Name: Dennis D. Oklak
Title: Vice President & Treasurer
Attest:
/s/ Matthew A. Cohoat
- ----------------------------------
Name: Matthew A. Cohoat
Title: Vice President & Controller
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ John R. Prendiville
----------------------------
Name: John R. Prendiville
Title: Vice President
Attest:
/s/ Jeffrey L. Kinney
- -------------------------------
Name: Jeffrey L. Kinney
Title: Assistant Vice President
5
<PAGE>
STATE OF INDIANA )
--------------
) ss:
COUNTY OF MARION
--------------
)
On the 30th day of April 1996, before me personally came Dennis D.
Oklak, to me known, who, being by me duly sworn, did depose and say that
he/she resides at 9936 Sea Star Ct., Fishers, IN, that he/she is Vice
President & Treasurer of DUKE REALTY INVESTMENTS, INC., the general partner of
DUKE REALTY LIMITED PARTNERSHIP, one of the parties described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
by authority of the Board of Directors.
[Notarial Seal]
/s/ Melissa K. Glaze
-------------------------------------------
Notary Public
COMMISSION EXPIRES APRIL 14, 1998
6
<PAGE>
STATE OF ILLINOIS )
--------------
) ss:
COUNTY OF COOK
--------------
)
On the 2nd day of May 1996, before me personally came John R. Prendiville,
to me known, who, being by me duly sworn, did depose and say that he/she
resides at Wheaton, Illinois, that he/she is a Vice President of THE FIRST
NATIONAL BANK OF CHICAGO, one of the parties described in and which executed
the foregoing instrument, and that he/she signed his/her name thereto by
authority of the Board of Directors.
[Notarial Seal]
/s/ Somsri Helmer
-------------------------------------------
Notary Public
COMMISSION EXPIRES 1/14/99
7
<PAGE>
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED REGISTERED
No. FXR-__ PRINCIPAL AMOUNT:
CUSIP No.:
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] and
-------- ---------
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
- ------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
A-1
<PAGE>
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
A-2
<PAGE>
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the
"Issuer", which terms include any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _____________ or
its registered assigns, the principal sum of _____________ , on the Stated
Maturity Date specified above (or any Redemption Date or Repayment Date, each as
defined on the reverse hereof) (each such Stated Maturity Date, Redemption Date
or Repayment Date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
the Interest Rate per annum specified above, until the principal hereof is paid
or duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest. The Issuer will pay
interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between
a Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Record Date
with respect to such second Interest Payment Date. Interest on this Note will
be computed on the basis of a 360-day year of twelve 30-day months.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); PROVIDED, HOWEVER, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not less than 10 calendar days prior
to such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of
A-3
<PAGE>
this Note (and, with respect to any applicable repayment of this Note, a duly
completed election form as contemplated on the reverse hereof) at the corporate
trust office of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York, currently located at 14 Wall Street, Eighth
Floor - Window 2, New York, New York 10005, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Issuer may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is presented
and surrendered at the aforementioned office of the Trustee in time for the
Trustee to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or executive order to close in The City of New
York; PROVIDED, HOWEVER, that if the Specified Currency is other than United
States dollars and any payment is to be made in the Specified Currency in
accordance with the provisions hereof, such day is also not a day on which
banking institutions are authorized or required by law or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, in the case of European Currency Units
("ECU"), is not a day that appears as an ECU non-settlement day on the display
designated as "ISDE" on the Reuter Monitor Money Rates Service (or a day so
designated by the ECU Banking Association) or, if ECU non-settlement days do not
appear on that page (and are not so designated), is not a day on which payments
in ECU cannot be settled in the international interbank market). "Principal
Financial Center" means the capital city of the country issuing the Specified
Currency, except that with respect to United States dollars, Australian dollars,
Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU,
A-4
<PAGE>
the "Principal Financial Center" shall be The City of New York, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued the Specified Currency as at the time of such payment is legal tender for
the payment of such debts). If the Specified Currency is other than United
States dollars, any such amounts so payable by the Issuer will be converted by
the Exchange Rate Agent specified above into United States dollars for payment
to the holder of this Note; PROVIDED, HOWEVER, that the holder of this Note may
elect to receive such amounts in such Specified Currency pursuant to the
provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of
A-5
<PAGE>
exchange controls or other circumstances beyond the control of the Issuer, the
Issuer will be entitled to satisfy its obligations to the holder of this Note by
making such payment in United States dollars on the basis of the Market Exchange
Rate (as defined below) on the second Business Day prior to such payment date
or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Issuer, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on the
face hereof.
A-6
<PAGE>
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
A-7
<PAGE>
IN WITNESS WHEREOF, Duke Realty Limited Partnership has caused this Note to
be duly executed.
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By
--------------------------------
Name:
Title:
By
--------------------------------
Name:
Title:
A-8
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
---------------------------------------
Authorized Signatory
A-9
<PAGE>
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of September 19, 1995, as amended, modified or supplemented from time to time,
including the First Supplemental Indenture dated as of September 19, 1995 (the
"Indenture"), between the Issuer and The First National Bank of Chicago, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More From Date of Issue"
(the "Notes"). All terms used but not defined in this Note specified on the
face hereof or in an Addendum hereto shall have the meanings assigned to such
terms in the Indenture.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
A-10
<PAGE>
This Note will be subject to repayment by the Issuer at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, this Note must be
received, together with the form hereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its corporate trust office not more than 60
nor less than 30 calendar days prior to the Repayment Date. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(1) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this Note
(if applicable), multiplied by the Initial Redemption Percentage (as adjusted by
the Annual Redemption Percentage Reduction, if applicable) and (2) any unpaid
interest on this Note accrued from the Original Issue Date to the Redemption
Date, Repayment Date or date of acceleration of maturity, as the case may be.
The difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause the yield on the Note to be
constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period) and an assumption that
the maturity of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the "Initial Period")
is shorter than the compounding period for this Note, a proportionate amount of
the yield for an entire compounding period will be accrued. If the Initial
Period is longer than the compounding period, then such period will be divided
into a regular compounding period and a short period, with the short period
being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
A-11
<PAGE>
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
heretofore or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
A-12
<PAGE>
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
A-13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
------ ------
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common ----------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
this Note and all
- -------------------------------------------------------------
rights thereunder hereby irrevocably constituting and appointing
Attorney to transfer this Note
- ------------------------------------------------
on the books of the Trustee, with full power of substitution in the premises.
Dated:
----------------- -----------------------------------
-----------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular,
without alteration or enlargement
or any change whatsoever.
A-14
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
----------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
14 Wall Street, Eighth Floor, New York, New York 10005, not more than 60 nor
less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
--------- ---------------------------------
Notice: The signature(s) on this
Date: Option to Elect Repayment must
------------ correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
A-15
<PAGE>
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(3)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(4)
REGISTERED REGISTERED
No. FLR- PRINCIPAL AMOUNT:
CUSIP No.:
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
- -------------------------
(3) This paragraph applies to global Notes only.
(4) This paragraph applies to global Notes only.
B-1
<PAGE>
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE AGENT:
DEFAULT RATE: %
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
B-2
<PAGE>
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the
"Issuer", which terms include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or its registered assigns, the principal sum of , on
the Stated Maturity Date specified above (or any Redemption Date or Repayment
Date, each as defined on the reverse hereof) (each such Stated Maturity Date,
Redemption Date or Repayment Date being hereinafter referred to as the "Maturity
Date" with respect to the principal repayable on such date) and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
determined in accordance with the provisions specified above and on the reverse
hereof with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment, and (to the extent
that the payment of such interest shall be legally enforceable) at the Default
Rate per annum specified above on any overdue principal, premium and/or
interest. The Issuer will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; PROVIDED, HOWEVER, that if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the holder of
this Note on the Record Date with respect to such second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined on the reverse hereof) immediately preceding such
Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER, that interest
payable on the Maturity Date will be payable to the person to whom the principal
hereof and premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith cease
to be payable to the holder on any Record Date, and shall be paid to the person
in whose name this Note is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the Trustee hereinafter referred to, notice whereof
shall be given to the holder of this Note by the Trustee not less than 10
calendar days prior to such Special Record Date or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which this note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, currently located at
14 Wall Street, Eighth Floor - Window 2, New York, New York 10005, or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Issuer may
B-3
<PAGE>
determine; PROVIDED, HOWEVER, that if such payment is to be made in a Specified
Currency other than United States dollars as set forth below, such payment will
be made by wire transfer of immediately available funds to an account with a
bank designated by the holder hereof at least 15 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities therefor and
that this Note (and, if applicable, a duly completed repayment election form) is
presented and surrendered at the aforementioned office of the Trustee in time
for the Trustee to make such payment in such funds in accordance with its normal
procedures. Payment of interest due on any Interest Payment Date other than the
Maturity Date will be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this Note in the Specified Currency (or, if the Specified
Currency is not at the time of such payment legal tender for the payment of
public and private debts, in such other coin or currency of the country which
issued the Specified Currency as at the time of such payment is legal tender for
the payment of such debts). If the Specified Currency is other than United
States dollars, any such amounts so payable by the Issuer will be converted by
the Exchange Rate Agent specified above into United States dollars for payment
to the holder of this Note; PROVIDED, HOWEVER, that the holder of this Note may
elect to receive such amounts in such Specified Currency pursuant to the
provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Issuer for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to
B-4
<PAGE>
all holders of Notes scheduled to receive United States dollar payments and at
which the applicable dealer commits to execute a contract. All currency
exchange costs will be borne by the holder of this Note by deductions from such
payments. If three such bid quotations are not available, payments on this Note
will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer, the Issuer
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Issuer, then the Issuer will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of
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the most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on the
face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, Duke Realty Limited Partnership has caused this Note to
be duly executed.
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
---------------------------------
Authorized Signatory
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[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Issuer issued and to be issued under an Indenture, dated as
of September 19, 1995, as amended, modified or supplemented from time to time,
including the First Supplemental Indenture dated as of September 19, 1995 (the
"Indenture"), between the Issuer and The First National Bank of Chicago, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuer, the Trustee and the holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Securities
designated as "Medium-Term Notes Due Nine Months or More From Date of Issue"
(the "Notes"). All terms used but not defined in this Note specified on the
face hereof or in an Addendum hereto shall have the meanings assigned to such
terms in the Indenture.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S.$1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Issuer on any
date on or after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or the
minimum Authorized Denomination (provided that any remaining principal amount
hereof shall be at least U.S.$1,000 or such minimum Authorized Denomination), at
the Redemption Price (as defined below), together with unpaid interest accrued
thereon to the date fixed for redemption (each, a "Redemption Date"), on notice
given no more than 60 nor less than 30 calendar days prior to the Redemption
Date and in accordance with the provisions of the Indenture. The "Redemption
Price" shall initially be the Initial Redemption Percentage specified on the
face hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Issuer at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized
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Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof as an
Original Issue Discount Note, the amount payable to the holder of this Note in
the event of redemption, repayment or acceleration of maturity of this Note will
be equal to the sum of (1) the Issue Price specified on the face hereof
(increased by any accruals of the Discount, as defined below) and, in the event
of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption Percentage
Reduction, if applicable) and (2) any unpaid interest on this Note accrued from
the Original Issue Date to the Redemption Date, Repayment Date or date of
acceleration of maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred to herein as the
"Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued so as to cause an assumed yield on the Note
to be constant. The assumed constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
constant coupon rate equal to the initial interest rate applicable to this Note
and an assumption that the maturity of this Note will not be accelerated. If
the period from the Original Issue Date to the initial Interest Payment Date
(the "Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating
Rate Note", this Note shall be designated as a "Regular Floating Rate Note"
and, except as set forth below or on the face hereof, shall bear interest
at the rate determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
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<PAGE>
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth
below or on the face hereof, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases (a)
plus or minus the Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note shall be payable shall be reset as of
each Interest Reset Date; PROVIDED, HOWEVER, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z) the interest
rate in effect for the period commencing on the Fixed Rate Commencement
Date specified on the face hereof to the Maturity Date shall be the Fixed
Interest Rate specified on the face hereof or, if no such Fixed Interest
Rate is specified, the interest rate in effect hereon on the day
immediately preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note", then, except as set forth below
or on the face hereof, this Note shall bear interest at the Fixed Interest
Rate minus the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any; PROVIDED, HOWEVER, that, unless otherwise
specified on the face hereof, the interest rate hereon shall not be less
than zero. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as of each
Interest Reset Date; PROVIDED, HOWEVER, that the interest rate in effect
for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as defined
below) immediately preceding such Interest Reset Date or (ii) if such day is not
an Interest Reset Date, the interest rate determined as of the Interest
Determination Date immediately preceding the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day. In addition, if the Treasury Rate is
an applicable Interest Rate Basis is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law or executive order to close in The City of New
York; PROVIDED, HOWEVER, that if the Specified Currency is other than United
States dollars and any payment is to be made in the Specified Currency in
accordance with the provisions hereof, such day is also not a day on which
banking institutions are authorized or required by law or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or,
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<PAGE>
in the case of European Currency Units ("ECU"), is not a day that appears as an
ECU non-settlement day on the display designated as "ISDE" on the Reuter Monitor
Money Rates Service (or a day so designated by the ECU Banking Association) or,
if ECU non-settlement days do not appear on that page (and are not so
designated), is not a day on which payments in ECU cannot be settled in the
international interbank market); PROVIDED, FURTHER, that if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means (i) if the Index Currency (as
defined below) is other than ECU, any day on which dealings in such Index
Currency are transacted in the London interbank market or (ii) if the Index
Currency is ECU, any day that does not appear as an ECU non-settlement day on
the display designated as "ISDE" on the Reuter Monitor Money Rates Service (or a
day so designated by the ECU Banking Association) or, if ECU non-settlement days
do not appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market.
"Principal Financial Center" means the capital city of the country issuing the
Specified Currency, or solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars, Australian
dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
"Principal Financial Center" shall be The City of New York, Sydney, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date, unless the Index Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be the day
in the week in which the applicable Interest Reset Date falls on which day
Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at an auction held on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday);
PROVIDED, HOWEVER, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the Interest Determination Date
shall be such preceding Friday. If the interest rate of this Note is determined
with reference to two or more Interest Rate Bases specified on the face hereof,
the "Interest Determination Date" pertaining to this Note shall be the most
recent Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the related Interest Reset Date.
CD RATE. If an Interest Rate Basis for this Note is specified on the face
hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs
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<PAGE>
(Secondary Market)", or, if not published by 3:00 P.M., New York City time, on
the related Calculation Date (as defined below), the rate on such CD Rate
Interest Determination Date for negotiable United States dollar certificates of
deposit of the Index Maturity as published by the Federal Reserve Bank of New
York in its daily statistical release "Composite 3:30 P.M. Quotations for United
States Government Securities" or any successor publication ("Composite
Quotations") under the heading "Certificates of Deposit". If such rate is not
yet published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on the related Calculation Date, then the CD Rate on such CD Rate
Interest Determination Date will be calculated by the Calculation Agent
specified on the face hereof and will be the arithmetic mean of the secondary
market offered rates as of 10:00 A.M., New York City time, on such CD Rate
Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York selected by
the Calculation Agent for negotiable certificates of deposit of major United
States money market banks for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an amount
that is representative for a single transaction in that market at that time;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the face
hereof as the CMT rate, the CMT Rate shall be determined as of the applicable
Interest Determination Date (a "CMT Rate Interest Determination Date") as the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption "...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the related CMT Rate Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page or is not displayed by 3:00 P.M., New York City time, on the related
Calculation Date, then the CMT Rate for such CMT Rate Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published or is not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 P.M., New York
City time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest
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quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than such Designated
CMT Maturity Index minus one year. If the Calculation Agent is unable to obtain
three such Treasury Note quotations, the CMT Rate on such CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 P.M., New York City time, on such CMT Rate
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least U.S.$100 million. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; PROVIDED, HOWEVER, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
mentioned herein, the CMT Rate determined as of such CMT Rate Interest
Determination Date will be the CMT Rate in effect on such CMT Rate Interest
Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)) for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the heading "Commercial Paper".
In the event that such rate is not published by 3:00 P.M., New York City time,
on such Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be the Money Market Yield of the
rate for commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation
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Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the Index
Maturity placed for an industrial issuer whose bond rating is "AA", or the
equivalent from a nationally recognized statistical rating organization;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
D x 360
Money Market Yield = -------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for this
Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is specified
on the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the
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related Calculation Date, then the Federal Funds Rate on such Federal Funds
Interest Determination Date shall be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged by three leading brokers of federal
funds transactions in The City of New York selected by the Calculation Agent,
prior to 9:00 A.M., New York City time, on such Federal Funds Rate Interest
Determination Date; PROVIDED, HOWEVER, that if the brokers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate Interest Determination Date
will be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the arithmetic
mean of the offered rates (unless the Designated LIBOR Page (as defined below)
by its terms provides only for a single rate, in which case such single rate
will be used) for deposits in the Index Currency having the Index Maturity,
commencing on the applicable Interest Reset Date, that appear (or, if only a
single rate is required as aforesaid, appears) on the Designated LIBOR Page (as
defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date, or (b) "LIBOR Telerate" is specified on the face hereof, or
if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof
as the method for calculating LIBOR, the rate for deposits in the Index Currency
having the Index Maturity, commencing on such Interest Reset Date, that appears
on the Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates appear, or if
no such rate appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described in clause
(ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity, commencing on the applicable
Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in
such Index Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European banks,
having the Index Maturity and in a principal amount that is representative for a
single transaction in such Index Currency in such market at such time; PROVIDED,
HOWEVER, that if the
B-16
<PAGE>
banks so selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Interest Determination Date shall be
LIBOR in effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency specified on the
face hereof as to which LIBOR shall be calculated. If no such currency or
composite currency is specified on the face hereof, the Index Currency shall be
United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified on
the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the display on the Dow
Jones Telerate Service (or any successor service) for the purpose of displaying
the London interbank rates of major banks for the Index Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M.,
New York City time, on the related Calculation Date, then the Prime Rate shall
be the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 (as defined below) as such bank's
prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 for such Prime Rate Interest Determination Date, the Prime Rate shall
be the arithmetic mean of the prime rates quoted on the basis of the actual
number of days in the year divided by a 360-day year as of the close of business
on such Prime Rate Interest Determination Date by four major money center banks
in The City of New York selected by the Calculation Agent. If fewer than four
such quotations are so provided, the Prime Rate shall be the arithmetic mean of
four prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest Determination Date as furnished in The City of New York by the major
money center banks, if any, that have provided such quotations and by as many
substitute banks or trust companies as necessary to obtain such four prime rate
quotations, provided such substitute banks or trust companies are organized and
doing business under the laws of the United States, or any State thereof, each
having total equity capital of at least U.S.$500 million and being subject to
supervision or examination by Federal or State authority, selected by the
Calculation Agent to provide such rate or rates; PROVIDED, HOWEVER, that if the
banks or trust companies so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1"
on the Reuter Monitor Money Rates Service (or such other page as may replace the
USPRIME1 page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
B-17
<PAGE>
TREASURY RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the Treasury Rate, the Treasury Rate shall be determined as of
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; PROVIDED, HOWEVER, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or before
each Calculation Date. The "Calculation Date", if applicable, pertaining to any
Interest Determination Date shall be the earlier of (i) the tenth calendar day
after such Interest Determination Date or, if such day is not a Business Day,
the next succeeding Business Day or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or the Maturity Date, as the case may be.
At the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
B-18
<PAGE>
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the holders of the Securities at any time by the Issuer
and the Trustee with the consent of the holders of not less than a majority of
the aggregate principal amount of all Securities at the time outstanding and
affected thereby. The Indenture also contains provisions permitting the holders
of not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the holders of all such Securities, to
waive compliance by the Issuer with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding Securities of any
series, in certain instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Issuer upon surrender of this Note for registration of transfer
at the office or agency of the Issuer in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
B-19
<PAGE>
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely in such State.
B-20
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
------ ------
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act
in common ----------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address including postal zip code of
assignee)
this Note and all
- -------------------------------------------------------------
rights thereunder hereby irrevocably constituting and appointing
Attorney to transfer this Note
- ------------------------------------------------
on the books of the Trustee, with full power of substitution in the premises.
Dated:
----------------- -----------------------------------
-----------------------------------
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular,
without alteration or enlargement
or any change whatsoever.
B-21
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to
repay this Note (or portion hereof specified below) pursuant to its terms at a
price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at
----------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, currently located at
14 Wall Street, Eighth Floor, New York, New York 10005, not more than 60 nor
less than 30 calendar days prior to the Repayment Date, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $
--------- ---------------------------------
Notice: The signature(s) on this
Date: Option to Elect Repayment must
------------ correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
B-22
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
April 29, 1996
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Limted Partnership, an Indiana limited
Partnership (the "Partnership"), in connection with the shelf registration by
the Partnership of debt securities of the Partnership pursuant to a Registration
Statement, file no. 33-61361 (the "Registration Statement"), on Form S-3 under
the Securities Act of 1933, as amended. The Partnership has filed a prospectus
supplement (the "Prospectus Supplement") relating to the offering of up to
$110,000,000 in aggregate principal amount of Medium-Term Due Nine Months or
More from Date of Issue (the "Notes"). This opinion letter is supplemental to
the opinion letter filed as Exhibit 5 to the Registration Statement, as amended.
We have examined photostatic copies of the Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws of Duke Realty Investments, Inc.,
the sole general partner of the Partnership (the "Company"), and of the
Partnership's Amended and Restated Agreement of Limited Partnership, the
indenture and supplemental indenture pursuant to which the Notes are to be
issued (together, the "Indenture") and such other documents and instruments as
we have deemed necessary to enable us to render the opinion set forth below. We
have assumed the conformity to the originals of all documents submitted to us as
photostatic copies, the authenticity of the originals of such documents, and the
genuineness of all signatures appearing thereon. As to various questions of
fact material to our opinions, we have relied upon certificates of, or
communications with, officers of the Company as general partner of the
Partnership.
<PAGE>
Duke Realty Limited Partnership
April 29, 1996
Page 2
Based upon and subject to the foregoing, it is our opinion that:
(1) The issuance of the Notes has been duly authorized by the Company as general
partner of the Partnership.
(2) When (a) the applicable provisions of the Securities Act of 1933 and such
state "blue sky" or securities laws as may be applicable have been complied with
and (b) the Notes have been issued and delivered for value as contemplated in
the Registration Statement and duly authenticated by the trustee under the
Indenture, the Notes will be duly and validly issued and will constitute legal,
valid and binding obligations of the Partnership, enforceable against the
Partnership in accordance with their terms, except insofar as enforceability
thereof may be limited by usury, bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally or
general principles of equity.
We do not hold ourselves out as being conversant with the laws of any
jurisdiction other than the federal laws of the United States and the laws of
the State of Indiana and, therefore, this opinion is limited to the laws of
those jurisdictions.
No person or entity other than you may rely or claim reliance upon this opinion.
This opinion is limited to the matters stated herein and no opinion is implied
or may be inferred beyond the matters expressly stated.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Bose McKinney & Evans
<PAGE>
EXHIBIT 8
BOSE McKINNEY & EVANS
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
April 29, 1996
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Gentlemen:
We have acted as counsel to Duke Realty Limited Partnership (the "Operating
Partnership") with respect to the preparation of a Prospectus Supplement (the
"Prospectus Supplement") filed with the Securities and Exchange Commission on or
about the date hereof relating to the issuance and sale by the Operating
Partnership of $110,000,000 in aggregate principal amount of the Operating
Partnership's Medium-Term Notes Due Nine Months or More from Date of Issue (the
"Notes"). In connection therewith, you have requested our opinion regarding
certain United States Federal income tax consequences of the purchase, ownership
and disposition of the Notes. All capitalized terms used herein have their
respective meanings as set forth in the Prospectus Supplement unless otherwise
stated.
In rendering the opinions stated below, we have examined and relied, with
your consent, upon the following:
(i) The Prospectus Supplement;
(ii) The Indenture, as supplemented by a Supplemental Indenture relating
to the Notes; and
(iii) Such other documents, records and instruments as we have deemed
necessary in order to enable us to render the opinion referred to in this
letter.
In our examination of the foregoing documents, we have assumed, with your
consent, that (i) all documents reviewed by us are original documents, or true
and accurate copies of original documents, and have not been subsequently
amended, (ii) the signatures on each original document are genuine, (iii) each
party who executed the document had proper authority and capacity, (iv) all
representations and statements set forth in such documents are true and correct
and (v) all obligations imposed by any such documents on the parties thereto
have been or will be performed or satisfied in accordance with their terms.
<PAGE>
Duke Realty Limited Partnership
April 29, 1996
Page 2
Based upon and subject to the foregoing, we are of the opinion that the tax
consequences of the purchase, ownership and disposition of the Notes will be
consistent with the discussion contained in the section entitled "Certain United
States Federal Income Tax Considerations" in the Prospectus Supplement.
The opinions set forth in this letter represent our conclusions as to the
application of federal income tax laws existing as of the date of this letter to
the transactions described herein. We can give no assurance that legislative
enactments, administrative changes or court decisions may not be forthcoming
that would modify or supersede our opinions. Moreover, there can be no
assurance that positions contrary to our opinions will not be taken by the IRS,
or that a court considering the issues would not hold contrary to such opinions.
Further, the opinions set forth above represent our conclusion based upon the
documents, facts and representations referred to above. Any material amendments
to such documents, changes in any significant facts or inaccuracy of such
representations could affect the opinions referred to herein. Although we have
made such inquiries and performed such investigations as we have deemed
necessary to fulfill our professional responsibilities as counsel, we have not
undertaken an independent investigation of the facts referred to in this letter.
We express no opinion as to any federal income tax issue or other matter
except those set forth or confirmed above. We consent to the filing of this
opinion with Form 8-K, to the incorporation by reference of this opinion as an
exhibit to the registration statement of the Operating Partnership and Duke
Realty Investments, Inc. (file no. 33-61361) and any registration statement
filed under Rule 462(b) relating to such registration statement and to the
reference to our firm under the heading "Legal Matters" in the Prospectus
Supplement."
Very truly yours,
/s/ Bose McKinney & Evans
