<PAGE>
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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): February 9, 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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<PAGE>
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 February 9, 1999.
4 Sixth Supplemental Indenture dated as of February 12, 1999, including
form of global note evidencing 6.8% Senior Notes due February 12,
2009.
5 Opinion of Bose McKinney & Evans, including consent.
8 Tax Opinion of Bose McKinney & Evans
</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: February 11, 1999 By: /s/ Dennis D. Oklak
------------------------
Dennis D. Oklak
Executive Vice President,
Chief Administrative
Officer and Treasurer
-2-
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
6 4/5% NOTES DUE 2009
TERMS AGREEMENT
Dated: February 9, 1999
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
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
$125,000,000 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
Underwriter Of
----------- Underwritten Securities
-----------------------
<S> <C>
Merrill Lynch , Pierce, Fenner & Smith $ 87,500,000
Incorporated
BT Alex. Brown Incorporated 12,500,000
J.P. Morgan Securities Inc. 12,500,000
Salomon Smith Barney Inc. 12,500,000
-------------
Total $ 125,000,000
</TABLE>
The Underwritten Securities shall have the following terms:
Title of securities: 6 4/5% Senior Notes due 2009
Currency: U.S. Dollars
Principal amount to be issued: $125,000,000
Current ratings: Moody's Investors Service, Inc: Baa2; Standard & Poor's
Corporation: BBB+
Interest rate: 6 4/5%
Interest payment dates: Each February 12 and August 12
Stated maturity date: February 12, 2009
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: 99.778%, plus accrued interest, if any, from the
date of issuance
Purchase price: 99.128%, plus accrued interest, if any, from the date of
issuance (payable in same day funds).
Other terms: The Underwritten Securities shall be in the form of Exhibit A to
the Supplemental Indenture, dated as of February 12, 1999 between Duke
Realty Limited Partnership and The First National Bank of Chicago.
Closing date and location: February 12, 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 A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership
- --Common Stock, Preferred Stock, Depositary Shares and Debt Securities -
Underwriting Agreement" 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
<PAGE>
Please accept this offer no later than 5:00 o'clock P.M. (New York City
time) on February 9, 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
BT ALEX. BROWN INCORPORATED
J.P. MORGAN SECURITIES INC.
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John P. Case III
-----------------------------
Accepted:
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
-------------------------
Name: Dennis D. Oklak
Title: EVP
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
General Partner
By: /s/ Dennis D. Oklak
-------------------------
Name: Dennis D. Oklak
Title: EVP
3
<PAGE>
DUKE REALTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 12, 1999
$125,000,000 6.8% NOTES DUE 2009
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
<PAGE>
SIXTH SUPPLEMENTAL INDENTURE, dated as of February 12, 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 $125,000,000, entitled "Duke Realty Limited Partnership 6.8% Notes due
2009" (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 1.1. 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
Sixth 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 6.8% Notes due February 12, 2009, 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 1.2. 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
3
<PAGE>
amount not to exceed $125,000,000.
SECTION 1.3. 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 1.4. 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 Sixth 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.
4
<PAGE>
(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 2.1. 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 3.1. 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 3.2. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.3. 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 3.4. 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 3.5. 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.
5
<PAGE>
SECTION 3.6. 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.
6
<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: EVP
Attest:
/s/ Matthew A. Cohoat
- ------------------------------
Name: Matthew A. Cohoat
Title: VP and Controller
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Janice Ott Rotunno
-----------------------------------------
Name: Janice Ott Rotunno
Title: Vice President and Assistant Secretary
Attest:
/s/ Diane Swanson
- -------------------------------
Name: Diane Swanson
Title: Assistant Vice President
<PAGE>
STATE OF INDIANA )
) ss:
COUNTY OF MARION )
On the 11th day of February 1999, before me personally came Dennis
D. Oklak and Matthew A. Cohoat, to me known, who, being by me duly sworn, did
depose and say that he/she resides at _____________________________________,
that he/she is Executive Vice President and Vice President and Controller 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/ Kimberly D. Hall
----------------------------
Notary Public
COMMISSION EXPIRES
Expires 8/10/06
<PAGE>
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the 11th day of February 1999, before me personally came Janice
Ott Rotunno, to me known, who, being by me duly sworn, did depose and say
that he/she resides at 1155 Sterling, Palatine, IL 60067, 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/ Diane Mary Wuertz
----------------------------------
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. $125,000,000
DUKE REALTY LIMITED PARTNERSHIP
6.8% NOTES DUE 2009
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 Twenty-Five
Million Dollars on February 12, 2009 (the "Maturity Date"), and to pay
interest thereon from February 12, 1999 (or from the most recent interest
payment date to which interest has been paid or duly provided for),
semi-annually on February 12 and August 12 of each year (each, an "Interest
Payment Date"), commencing on August 12, 1999, and on the Maturity Date, at
the rate of 6.8% 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
<PAGE>
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 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 February 12, 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.
A-11
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated: February , 1999
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By:
Name:
Title:
By:
Name:
Title:
<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
<PAGE>
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
6.8% NOTES DUE 2009
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 6.8 % Notes due February 12, 2009 of the Issuer,
limited in aggregate principal amount to $125,000,000.
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
A-14
<PAGE>
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 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.
A-15
<PAGE>
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.
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-16
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
February 9, 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 $125,000,000 in aggregate principal amount
of 6.8% Senior Notes due February 12, 2009 (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
February 9, 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
<PAGE>
BOSE McKINNEY & EVANS
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
February 9, 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 $125,000,000 aggregate principal
amount of its 6.8% Senior Notes due February 12, 2009 (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
February 9, 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
