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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): June 23, 1999
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 in lieu of filing the otherwise required exhibits to the registration
statement on Form S-3 of the Registrant, file no. 333-49911, 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,
are set forth in full in the Registration Statement.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
- ------- -------
<S> <C>
1 Terms Agreement dated June 23, 1999.
4 Seventh Supplemental Indenture dated as of June 28, 1999, including
form of global note evidencing 7.3% Senior Notes due June 30, 2003.
5 Opinion of Bose McKinney & Evans LLP, including consent.
8 Tax Opinion of Bose McKinney & Evans LLP
23 Consent of Arthur Andersen LLP
</TABLE>
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: June 28, 1999 By: /s/ Dennis D. Oklak
------------------------
Dennis D. Oklak
Executive Vice President,
Chief Administrative
Officer and Treasurer
-2-
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DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
7.3% NOTES DUE 2003
TERMS AGREEMENT
Dated: June 23, 1999
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We understand that Duke Realty Limited Partnership, an Indiana limited
partnership (the "Operating Partnership"), proposes to issue and sell
$175,000,000 aggregate principal amount of its unsecured debt securities (the
"Debt Securities") (such Debt Securities being collectively hereinafter
referred to as the "Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not
jointly, the respective numbers of Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names at the purchase price set forth below.
<PAGE>
<TABLE>
<CAPTION>
Principal Amount
Of
Underwriter Underwritten Securities
------------- ------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $148,750,000
Incorporated
Banc One Capital Markets, Inc. 26,250,000
---------------
Total $175,000,000
</TABLE>
The Underwritten Securities shall have the following terms:
Title of securities:
Currency: U.S. Dollars
Principal amount to be issued: $175,000,000
Current ratings: Moody's Investors Service, Inc: Baa2; Standard & Poor's
Corporation: BBB+
Interest rate: 7.3%
Interest payment dates: Each June 30 and December 30
Stated maturity date: June 30, 2003
Redemption provisions: The Underwritten Securities are callable at any time at
a Make-Whole Amount equivalent to the higher of par or the future payment
stream discounted at T+25.
Delayed Delivery Contracts: not authorized
Initial public offering price: 99.914%, plus accrued interest, if any, from the
date of issuance
Purchase price: 99.364%, plus accrued interest, if any, from the date of
issuance (payable in same day funds).
Other terms:
(i) The Underwritten Securities shall be in the form of Exhibit A to the
Supplemental Indenture, dated as of June 28, 1999 between Duke Realty
Limited Partnership and The First National Bank of Chicago.
(ii) The Underwriting Agreement shall be amended in the manner set forth on
Annex A attached hereto.
Closing date and location: June 28, 1999 at the offices of Rogers & Wells LLP,
200 Park Avenue, New York, New York 10166
All the provisions contained in the document attached as Annex B hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership --
Common Stock, Preferred Stock, Depositary Shares and Debt Securities -
Underwriting Agreement", in addition to the provisions contained in Annex A also
attached hereto, are incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
2
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Please accept this offer no later than 5:00 o'clock P.M. (New York City
time) on June 23, 1999 by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
-----------------------------------------
Accepted:
DUKE REALTY INVESTMENTS, INC.
By: -----------------------------
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
General Partner
By: -----------------------------
Name:
Title:
WEEKS CORPORATION
By: -----------------------------
Name:
Title:
WEEKS REALTY, L.P.
By: Weeks GP Holdings
General Partner
By: Weeks Corporation
By: -----------------------------
Name:
Title:
3
<PAGE>
Annex A
The following text shall be inserted immediately after Section 1(a)(xliii) of
the Underwriting Agreement:
"(xliv) Arthur Andersen LLP, who have certified certain financial
statements of Weeks and its subsidiaries included in or incorporated by
reference into the Prospectus, is an independent public accountant as required
by the 1933 Act and the 1933 Act Regulations.
(xlv) The REIT Merger Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(xlvi) The OP Merger Agreement has been duly authorized, executed and
delivered by the Operating Partnership and is a valid and binding agreement of
the Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles."
The following text shall be inserted immediately after Section 1(b) of the
Underwriting Agreement:
"Section 1A. REPRESENTATIONS AND WARRANTIES OF WEEKS AND WEEKS OP.
(a) The Operating Partnership has entered into an Agreement and Plan
of Merger, dated February 28, 1999 (the "OP Merger Agreement") with Weeks
Realty, L.P., a Georgia limited partnership ("Weeks OP") which provides for the
merger of Weeks OP with and into the Operating Partnership. The Company which
is the sole managing general partner of the Operating Partnership has entered
into an Agreement and Plan of Merger, dated February 28, 1999 (the "REIT Merger
Agreement") with Weeks Corporation, a Georgia corporation and, through a
wholly-owned subsidiary, the general partner of Weeks OP ("Weeks"), which
provides for the merger of Weeks with and into the Company (the "REIT Merger").
The effective time of the mergers (the "Effective Time") is expected to be
after the completion of the transactions contemplated by the Terms Agreement.
Weeks and Weeks OP have agreed to be parties to this Agreement solely to the
extent set forth below.
(b) Weeks and Weeks OP represent and warrant, jointly and severally,
to the Representatives and each other Underwriter named in the Terms Agreement,
as of each applicable Representation Date, as follows, it being understood that
Weeks and Weeks OP shall not be liable under this Agreement except for the
representations and warranties contained in this Section 1A(b) and that in the
event the REIT Merger Agreement is terminated, those representations and
warranties shall expire on such date of termination of the REIT Merger
Agreement.
(i) Any reference to the Prospectus in this Section 1A (b)(i)
shall be deemed to refer to and include Weeks' most recent Annual
Report on Form 10-K, Weeks' most recent Quarterly Report on Form 10-Q
and all subsequent documents filed with the Commission by Weeks
pursuant to the 1934 Act on or prior to the date of the Prospectus and
any reference to the Prospectus as amended or supplemented, as of any
specified date, shall be deemed to include any documents filed with
the Commission by Weeks pursuant to Section 13(a), 13(c) or 15(d) of
the 1934 Act after the date of the Prospectus, and prior to such
specified date; and all documents filed under the 1934 Act and so
deemed to be included in the Prospectus or any amendment or
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supplement thereto are hereinafter called the "Weeks 1934 Act
Reports". The Weeks 1934 Act Reports, when they were or are filed
with the Commission, conformed or will conform in all material
respects to the applicable requirements of the 1934 Act and the
applicable rules and regulations of the Commission thereunder. All
information relating to Weeks in the Prospectus and any amendments
or supplements thereto did not and will not, as of their respective
dates, contain 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.
(ii) All information relating to Weeks in Duke's registration
statement on Form S-4 (No. 333-77645), of which the Joint Proxy
Statement and Prospectus dated May 5, 1999 is a part, including all
documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the 1934 Act or
otherwise (the "S-4 Registration Statement"), as of the date hereof
does not, and as of each applicable Representation Date will not,
contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Neither Weeks nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Prospectus, there has not been any change
in the limited, general or preferred partnership interests, or
long-term debt of Weeks or any of its subsidiaries or any material
adverse change, in or affecting the financial position, shareholders'
equity or results of operations of Weeks and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus.
(iv) The REIT Merger Agreement has been duly authorized,
executed and delivered by Weeks and is a valid and binding agreement
of Weeks enforceable against Weeks in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(v) The OP Merger Agreement has been duly authorized, executed
and delivered by the Weeks OP and is a binding obligation of Weeks OP,
enforceable against Weeks OP in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(vi) At all times since August 23, 1994, Weeks has been, and
upon the sale of the Underwritten Securities, Weeks will continue to
be, organized and operated in conformity with the requirements for
qualification as a real estate investment trust under 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."
The following text shall be inserted after Section 5(b)(1)(xxix) of the
Underwriting Agreement:
"(xxx) The REIT Merger Agreement has been duly authorized,
executed and delivered by the Company.
(xxxi) The OP Merger Agreement has been duly authorized,
executed and delivered by the Operating Partnership.
5
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The following text shall be inserted immediately after Section 5(i)(4) of the
Underwriting Agreement:
"(j) King & Spalding, counsel for Weeks, shall have furnished to the
Representatives their written opinion, dated as of the Closing Time, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(1) The Weeks 1934 Act Reports (other than the financial
statements and related schedules therein and financial and statistical
data, as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they were so filed
or at the date of the Prospectus, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading.
(2) Such counsel has no reason to believe that the S-4
Registration Statement contained as of its date, or contains as of the
Closing Time, an untrue statement of material fact with regard to
Weeks or omitted or omits, as the case may be, to state a material
fact with regard to Weeks necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(3) The REIT Merger Agreement has been duly authorized,
executed and delivered by Weeks and is a valid and binding agreement
of Weeks, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditor's rights
and to general equity principles.
(4) The OP Merger Agreement has been duly authorized, executed
and delivered by Weeks OP and is a valid and binding agreement of
Weeks OP, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditor's rights
and to general equity principles.
(5) Weeks was organized and has operated in conformity with
the requirements for qualification and taxation as a real estate
investment trust under the Code for its initial taxable year beginning
August 23, 1994 and ending December 31, 1994 as well as its taxable
years ending December 31, 1995, 1996, 1997 and 1998, and its current
organization and method of operation will allow it to continue to
qualify as a real estate investment trust through the Effective Time
of the REIT Merger.
(k) On the date of the Prospectus prior to the execution of this
Agreement and also at the Closing Time, Arthur Andersen LLP shall have furnished
to you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you.
(l) (i) None of Weeks, Weeks OP or any of their subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus there shall
not have been any change in the partner interests or other equity interests, as
the case may be, or long-term debt of Weeks, Weeks OP or any of their
subsidiaries or any change, in or affecting the financial position,
stockholders' equity or results of operations of Weeks, Weeks OP and their
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such
6
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case described in clause (i) or (ii), is in the judgment of you, as the
representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in this Agreement and
in the Prospectus.
(m) On or after the date hereof no "nationally recognized statistical
rating organization" as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the 1933 Act shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of Weeks OP's debt securities."
7
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DUKE REALTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 28, 1999
$175,000,000 7.3% SENIOR NOTES DUE 2003
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
- --------------------------------------------------------------------------------
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<PAGE>
SEVENTH SUPPLEMENTAL INDENTURE, dated as of June 28, 1999, 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, in an aggregate principal amount not to
exceed $175,000,000, entitled "Duke Realty Limited Partnership 7.3% Senior Notes
due 2003" (the "Notes"); and (ii) establish the form and the terms and
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 certain of
its executive officers, has approved the creation of the Notes and the form,
terms 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:
"DTC" means The Depository Trust Company.
"GLOBAL NOTE" means a single fully-registered global note in
book-entry form, without coupons, substantially in the form of Exhibit A
attached hereto.
<PAGE>
"INDENTURE" means the Original Indenture as supplemented by this
Seventh Supplemental Indenture.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of each such
dollar if such redemption or accelerated payment had not been made,
determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given or declaration of
acceleration is made) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment
had not been made, over (ii) the aggregate principal amount of the Notes
being redeemed or paid.
"NOTES" means the Issuer's 7.3% Senior Notes due June 30, 2003, a form
of which is attached hereto as Exhibit A.
"REDEMPTION PRICE" means the sum of (i) the principal amount of the
Notes being redeemed plus accrued interest thereon to the Redemption Date and
(ii) the Make-Whole Amount, if any, with respect to such Notes.
"REINVESTMENT RATE" means .25% plus the arithmetic mean of the yields
under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used.
"STATISTICAL RELEASE" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Issuer.
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 in an aggregate principal amount not to exceed $175,000,000.
2
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SECTION 1.03. FORM OF THE DEBT SECURITIES. The Notes will be represented
by a single fully-registered global note in book-entry form, without coupons,
registered in the name of the nominee of DTC. The Notes shall be in the form of
Exhibit A attached hereto. So long as DTC, or its nominee, is the registered
owner of a Global Note, DTC or its nominee, as the case may be, will be
considered the sole owner or holder of the notes represented by such Global Note
for all purposes under the Indenture. Ownership of beneficial interests in the
Global Note will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04. TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Seventh Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) OPTIONAL REDEMPTION. The Issuer may redeem the Notes at any time at
the option of the Issuer, in whole or from time to time in part, at a redemption
price equal to the Redemption Price.
If notice has been given as provided in the Original Indenture and
funds for the redemption of any Notes called for redemption shall have been made
available on the Redemption Date referred to in such notice, such Notes will
cease to bear interest on the date fixed for such redemption specified in such
notice and the only right of the Holders of the Notes will be to receive payment
of the Redemption Price.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the Security Register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their Redemption
Date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, Notes to be redeemed in whole or in part.
(b) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest payments on
interests represented by a Global Note will be made to DTC or its nominee, as
the case may be, as the registered owner of such Global Note. All payments of
principal and interest in respect of the Notes will be made by the Issuer in
immediately available funds.
3
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(c) APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. 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.
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.
4
<PAGE>
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.
5
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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:
---------------------------------
Name:
Title:
Attest:
- ---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
---------------------------------
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
<PAGE>
STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the ___________ day of __________ 1999, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
________________ 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]
--------------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the __________ day of __________ 1999, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
a _______________ 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]
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. __________ PRINCIPAL AMOUNT
CUSIP NO. 264414AW3 $175,000,000
DUKE REALTY LIMITED PARTNERSHIP
7.3% SENIOR NOTES DUE 2003
Duke Realty Limited Partnership, an Indiana limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or its
registered assigns, the principal sum of One Hundred Seventy-Five Million
Dollars on June 30, 2003 (the "Maturity Date"), and to pay interest thereon from
June 30, 1999 (or from the most recent interest payment date to which interest
has been paid or duly provided for), semi-annually on June 30 and December 30 of
each year (each, an "Interest Payment Date"), commencing on December 30, 1999,
and on the Maturity Date, at the rate of 7.3% per annum, until payment of said
principal sum has been made or duly provided for.
The interest so payable and punctually paid or duly provided for on
any Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the "Record Date" for such payment, which will be 15 days
(regardless of whether such day is a Business Day (as defined below)) prior to
such payment date or the Maturity Date, as the case may be. Any interest not so
<PAGE>
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such record date, and shall be paid to the Holder in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on a subsequent record date for the payment of such defaulted interest (which
shall be not less than five Business Days (as defined below) prior to the date
of the payment of such defaulted interest) established by notice given by mail
by or on behalf of the Issuer to the Holders of the Notes not less than 15 days
preceding such subsequent record date. Interest on this Note will be computed on
the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in The Borough of Manhattan, The City of New
York. The Issuer hereby initially designates the Corporate Trust Office of the
Trustee in the City of New York as the office to be maintained by it where Notes
may be presented for payment, registration of transfer, or exchange and where
notices or demands to or upon the Issuer in respect of the Notes or the
Indenture referred to on the reverse hereof may be served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued from
and including the immediately preceding Interest Payment Date (or from and
including June 30, 1999 in the case of the initial Interest Payment Date) to but
excluding the applicable Interest Payment Date or the Maturity Date, as the case
may be. If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day (as defined below), the required payment of interest or
principal or both, as the case may be, will be made on the next Business Day
with the same force and effect as if it were made on the date such payment was
due and no interest will accrue on the amount so payable for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in The City of New York are open for business.
Payments of principal and interest in respect of this Note will be
made by wire transfer of immediately available funds in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under such Indenture.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated: June , 1999
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By: ---------------------------------------------
Name: Dennis D. Oklak
Title: Executive Vice President and Chief
Administrative Officer
By: ---------------------------------------------
Name: Darell E. Zink
Title: Executive Vice President and Chief
Financial Officer
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: _____________________________________
Authorized Officer
A-1
<PAGE>
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
7.3% SENIOR NOTES DUE 2003
This security is one of a duly authorized issue of debentures, notes,
bonds, or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an Indenture dated as of September 19, 1995 (hereinafter
called the "Indenture"), duly executed and delivered by the Issuer to The First
National Bank of Chicago, as Trustee (hereinafter called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which the Indenture and
all indentures supplemental thereto relating to this security reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), and may
otherwise vary as provided in the Indenture or any indenture supplemental
thereto. This security is one of a series designated as the 7.3% Senior Notes
due June 30, 2003 of the Issuer, limited in aggregate principal amount to
$175,000,000.
In case an Event of Default with respect to this security shall have
occurred and be continuing, the principal hereof and Make-Whole Amount, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this security at any time at the option of the
Issuer, in whole or in part, at a redemption price equal to the sum of (i) the
principal amount of this security being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
this security (the "Redemption Price"). Notice of any optional redemption of
any Securities will be given to Holders at their addresses, as shown in the
Security Register, not more than 60 nor less than 30 days prior to the date
fixed for redemption. The notice of redemption will specify, among other items,
the Redemption Price and the principal amount of the Securities held by such
Holder to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Security
so affected, (i) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate or amount of interest thereon or
any premium payable upon the redemption thereof, or adversely affect any
A-2
<PAGE>
right of repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies, currency unit or units
or composite currency or currencies in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity thereof,
or (ii) reduce the aforesaid percentage of Securities, the Holders of which
are required to consent to any such supplemental indenture, or (iii) reduce
the percentage of Securities, the Holders of which are required to consent to
any waiver of compliance with certain provisions of the Indenture or any
waiver of certain defaults thereunder. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Securities of any series, the Holders of a majority in aggregate principal
amount outstanding of the Securities of such series (or, in the case of
certain defaults or Events of Default, all series of Securities) may on
behalf of the Holders of all the Securities of such series (or all of the
Securities, as the case may be) waive any such past default or Event of
Default and its consequences, prior to any declaration accelerating the
maturity of such Securities, or, subject to certain conditions, may rescind a
declaration of acceleration and its consequences with respect to such
Securities. Any such consent or waiver by the Holder of this security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon
such Holder and upon all future Holders and owners of the security and any
securities that may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this
security or such other securities.
No reference herein to the Indenture and no provision of this security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this security in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Securities may be
exchanged for a like aggregate principal amount of securities of this series of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of Securities at the
office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Securities of the same series of authorized denominations
in an equal aggregate principal amount will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this security is registered
as the absolute owner of this security (whether or not this security shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment of, or on account of, the principal hereof
and Make-Whole Amount, if any, and subject to the provisions on the face hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
A-3
<PAGE>
The Indenture and each Security shall be deemed to be a contract under
the laws of the State of New York, and for all purposes shall be construed in
accordance with the laws of such state, except as may otherwise be required by
mandatory provisions of law.
Capitalized terms used herein which are not otherwise defined shall
have the respective meanings assigned to them in the Indenture and all
indentures supplemental thereto relating to this security.
A-4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated: June , 1999
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By: ---------------------------------------------
Name:
Title:
By: ---------------------------------------------
Name:
Title:
A-5
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS LLP
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
June 23, 1999
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Limited 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. 333-49911 (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
$175,000,000 in aggregate principal amount of 7.3% Senior Notes due June 30,
2003 (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, including but not limited to a certificate of the Secretary of the
Company rendered in connection with the closing of the sale of the Notes as to
action taken by or on behalf of the Board of Directors of the Company.
<PAGE>
Duke Realty Limited Partnership
June 23, 1999
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 LLP
<PAGE>
BOSE McKINNEY & EVANS LLP
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
June 23, 1999
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Gentlemen:
We have acted as counsel to Duke Realty Limited Partnership, an Indiana
limited partnership (the "Operating Partnership"), in connection with the shelf
registration by the Operating Partnership of its debt securities pursuant to a
Registration Statement, file no. 333-49911 (the "Registration Statement"), on
Form S-3 under the Securities Act of 1933, as amended. The Operating
Partnership has filed a prospectus supplement (the "Prospectus Supplement")
relating to the offering of $175,000,000 aggregate principal amount of its 7.3%
Senior Notes due June 30, 2003 (the "Notes"). In connection therewith, you have
requested our opinion regarding certain United States Federal income tax matters
discussed in the Prospectus Supplement. All capitalized terms used herein have
their respective meanings as set forth in the Prospectus Supplement and
accompanying Prospectus unless otherwise stated.
In rendering the opinions stated below, we have examined and relied, with
your consent, upon the Prospectus Supplement and the accompanying prospectus and
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
June 23, 1999
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
impact of the Taxpayer Relief Act of 1997 and the IRS Restructuring Act upon the
tax consequences of the ownership of the Notes will be consistent with the
discussion contained in the section entitled "Certain 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 conclusions 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. 333-49911) 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 LLP
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3, the prospectus thereto,
and the prospectus supplement dated June 23, 1999, of our reports dated
February 26, 1999 included in Weeks Corporation's and Weeks Realty LP's
Annual Reports on Form 10-K for the year ended December 31, 1998 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
June 25, 1999
