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As filed with the Securities and Exchange Commission on September 22, 1995
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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): September 19, 1995
DUKE REALTY INVESTMENTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Indiana 1-9044 35-1740409
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation or
organization)
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
Exhibit
Number Exhibit
------- -------
1.1 Underwriting Agreement dated September 19, 1995, which is being filed
pursuant to Regulation S-K Item 601(b) (1) in lieu of filing the
otherwise required exhibit to the registration statement on Form S-3
of the Registrant and Duke Realty Limited Partnership, file no. 33-
61361, under the Securities Act of 1933, as amended (the "Registration
Statement"), and which, as this Form 8-K filing is incorporated by
reference in the Registration Statement, is set forth in full in the
Registration Statement.
1.2 Terms Agreements dated September 19, 1995, which are being filed
pursuant to Regulation S-K Item 601(b)(1) in lieu of filing the
otherwise required exhibit to 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.
4.1 Indenture between Duke Realty Limited Partnership and The First
National Bank of Chicago, which is being filed pursuant to Regulation
8-K Item 601 (b)(4) as an exhibit to the Registration Statement and
which, as this Form 8-K filing is incorporated by reference in the
Registration Statement, is set forth in full in the Registration
Statement.
4.2 Supplemental Indenture dated as of September 19, 1995 between Duke
Realty Limited Partnership and The First National Bank of Chicago,
which is being filed pursuant to Regulation S-K Item 601(b)(4) as an
exhibit to the Registration Statement and which, as this Form 8-K
filing is incorporated by reference in the Registration Statement, is
set forth in full in the Registration Statement.
5 Opinion of Bose McKinney & Evans, including consent, which is being
filed pursuant to Regulation S-K Item 601(b)(5) as a supplement to
the opinion filed as Exhibit 5 to the Registration Statement and
which, as this Form 8-K filing is incorporated by reference in the
Registration Statement, is set forth in full in the Registration
Statement.
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 INVESTMENTS, INC.
Date: September 19, 1995 By: /s/ Dennis D. Oklak
------------------------
Dennis D. Oklak
Vice President
-2-
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DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
Common Stock, Preferred Stock, Depositary Shares
and Debt Securities
UNDERWRITING AGREEMENT
September 19, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1305
Ladies and Gentlemen:
Duke Realty Investments, Inc. (the "Company") may from time to time
offer in one or more series (i) shares of Common Stock, $.01 par value (the
"Common Stock"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock") and (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), with an aggregate public offering price of up to
$100,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). Duke Realty Limited Partnership (the "Operating
Partnership") may from time to time offer in one or more series unsecured debt
securities (the "Debt Securities"), with an aggregate principal amount of up to
$260,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares and
Debt Securities (collectively, the "Securities") may be offered, separately or
together, in separate series in amounts, at prices and on terms to be set forth
in one or more Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable Terms Agreement (as hereinafter defined) as additional co-
managers with respect to Underwritten Securities (as hereinafter defined)
purchased pursuant thereto.
Whenever the Company or the Operating Partnership determines to make
an offering of Securities through the Representatives or through an underwriting
syndicate managed by the Representatives, the Company or the Operating
Partnership, as the case may be, will enter into an agreement (the "Terms
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the
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Representatives to enter into such Terms Agreement on their behalf (the
"Underwriters," which term shall include the Representatives whether acting
alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the amount of Underwritten Securities to be initially
issued (the "Initial Underwritten Securities"), the names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the amount of Initial Underwritten Securities which each such
Underwriter severally agrees to purchase, the names of such of the
Representatives or such other Underwriters acting as co-managers, if any, in
connection with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the Company or the
Operating Partnership, as the case may be, the initial public offering price, if
any, of the Initial Underwritten Securities, the time and place of delivery and
payment, any delayed delivery arrangements and any other variable terms of the
Initial Underwritten Securities (including, but not limited to, current ratings,
designations, liquidation preferences, voting and other rights, denominations,
interest rates or formulas, interest payment dates, maturity dates and
redemption or repayment provisions applicable to the Initial Underwritten
Securities). In addition, each Terms Agreement shall specify whether the
Underwriters will be granted an option to purchase additional Underwritten
Securities to cover over-allotments, if any, and the aggregate amount of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between the Representatives and the Company or the Operating Partnership, as the
case may be. Each offering of Underwritten Securities through the
Representatives or through an underwriting syndicate managed by the
Representatives will be governed by this Agreement, as supplemented by the
applicable Terms Agreement.
The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 33-61361) for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and the Operating Partnership have filed such amendments thereto
as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations), and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided that if any revised
prospectus shall be provided to the Representatives by the Company or the
Operating Partnership for use in connection with the offering of Underwritten
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company or the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations), the term "Prospectus"
shall refer to each such revised prospectus from and after the time it is first
provided to the Representatives for such use; provided, further, that a
Prospectus Supplement shall be deemed to have supplemented the Prospectus only
with respect to the offering of Underwritten Securities to which it relates.
Any registration statement (including any supplement thereto or information
which is deemed part thereof) filed by the Company or the Operating Partnership
under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b) Registration
Statement") shall be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information which
is deemed part thereof) included in the Rule 462(b) Registration Statement and
any term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a "Term
Sheet") shall be deemed to be part of the Prospectus. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall
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be deemed to mean and include all such financial statements and schedules and
other information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and the Operating Partnership represent and warrant,
jointly and severally, to the Representatives, as of the date hereof, and to the
Representatives and each other Underwriter named in the applicable Terms
Agreement, as of the date thereof (in each case, a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of each
Representation Date will comply, in all material respects with the
requirements of the 1933 Act Regulations and the 1939 Act and the rules and
regulations thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time the Registration Statement became effective, did
not, and as of each Representation Date, will not, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof does not, and as of each
Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to you by the Company or the Operating Partnership
for use in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it is
first provided to you for such use) and Closing Time (as hereinafter
defined) will not, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company or the Operating
Partnership in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or Prospectus or to that
part of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification on Form T-1 under the 1939 Act (the
"Statement of Eligibility") of a Trustee under an Indenture. If a Rule
462(b) Registration Statement is required in connection with the offering
and sale of the Securities, the Company and the Operating Partnership have
complied or will comply with the requirements of Rule 111 under the 1933
Act Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary prospectus, Prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied or will
comply when so filed in all material respects with the 1933 Act and the
1933 Act Regulations thereunder.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of
the 1934 Act and the rules and regulations of the Commission under the 1934
Act (the "1934 Act Regulations"), and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective and as of the applicable Representation Date or Closing
Time or during the period
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specified in Section 3(f), did not and will not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) KPMG Peat Marwick LLP, the accounting firm that audited the
financial statements and supporting schedules included in, or incorporated
by reference into, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(v) The financial statements (including the notes thereto)
included in, or incorporated by reference into, the Registration Statement
and the Prospectus present fairly the financial position of the respective
entity or entities presented therein at the respective dates indicated and
the results of their operations for the respective periods specified;
except as otherwise stated in the Registration Statement and Prospectus,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein; and the Company's ratios of earnings to
fixed charges (actual and, if any, proforma) included the Prospectus under
the caption "Selected Consolidated Financial Data" and in Exhibit 12 to the
Registration Statement have been calculated in compliance with Item 503(d)
of Regulation S-K of the Commission. The financial information and data
included in the Registration Statement and the Prospectus present fairly
the information included therein and have been prepared on a basis
consistent with that of the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus and the books
and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the 1933 Act, the 1933 Act Regulations
and guidelines of the American Institute of Certified Public Accountants
with respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial position of
the Operating Partnership and the Company, as applicable, at the respective
dates indicated and the results of operations for the respective periods
specified.
(vi) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company or the Operating Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction. No order preventing or
suspending the use of the Prospectus has been issued and no proceeding for
that purpose has been instituted or, to the knowledge of the Company or the
Operating Partnership, threatened by the Commission or by the state
securities authority of any jurisdiction.
(vii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Operating Partnership and
any of their respective subsidiaries, whether or not arising in the
ordinary course of business; (B) there has been no adverse change, material
to the Duke Group (as hereinafter defined) as a whole, in the condition,
financial or otherwise, or in the earnings, assets, business affairs or
business prospects of any of the real properties owned, directly or
indirectly, by the Company, the Operating Partnership or any subsidiary
(the "Properties") or any entity wholly or partially owned by the Company,
the Operating Partnership or any subsidiary which owns any Property (a
"Property Partnership") (the Company, the Operating Partnership, the
subsidiaries and the Property Partnerships are hereinafter jointly referred
to as the "Duke Group") , whether or not arising in the ordinary course of
business; (C) no material casualty loss or material condemnation or other
material adverse event with respect to any Property has occurred; (D) there
have been no transactions or acquisitions entered into by the Duke Group,
other than those in the ordinary course of business, which are material
with respect to the Duke Group as a whole; (E) neither the Company, the
Operating Partnership nor any
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of their respective subsidiaries has incurred any obligation or liability,
direct, contingent or otherwise which is material to the Duke Group as a
whole; (F) there has been no material change in the short-term debt or
long-term debt of the Duke Group as a whole; (G) except for regular
quarterly dividends on the Common Stock and dividends on the Preferred
Stock in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock; and (H) with the exception
of transactions in connection with stock option and dividend reinvestment
plans, the issuance of shares of Common Stock upon the exchange of
partnership interests in the Operating Partnership ("Units") and the
issuance of Units in connection with the acquisition of real or personal
property, there has been no change in the capital stock of the Company or
in the partnership interests, as the case may be, of the Company, the
Operating Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been
duly formed, and is validly existing and in good standing as a corporation
or partnership under the laws of its jurisdiction of organization, with
partnership or corporate power and authority to conduct the business in
which it is engaged or proposes to engage and to own, lease and operate its
properties as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Terms Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's
subsidiaries has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its jurisdiction
of organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the Prospectus.
(x) Each of the Company, the Operating Partnership, their
respective subsidiaries and the Property Partnerships is duly qualified or
registered as a foreign partnership or corporation in good standing and
authorized to do business in each jurisdiction in which such qualification
is required whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Duke
Group considered as a single enterprise (a "Material Adverse Effect").
(xi) If the applicable Underwritten Securities are issued by the
Company, the capital stock of the Company as of the date specified therein
was as set forth in the Prospectus under "Capitalization." All the issued
and outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold in compliance with all applicable laws (including,
without limitation, federal, state or foreign securities laws).
(xii) If the applicable Underwritten Securities are issued by the
Operating Partnership, the partner's equity of the Operating Partnership is
as set forth in the Prospectus under "Capitalization." All the issued and
outstanding Units have been duly authorized and are validly issued, fully
paid and non-assessable, except as provided under Indiana Code Section
23-16-7-8, and have been offered and sold or exchanged in compliance with
all applicable laws (including, without limitation, federal, state or
foreign securities laws).
(xiii) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each subsidiary have been
validly issued and fully paid and, other than the Property Partnerships,
Duke Realty Services Limited Partnership (the "Services Partnership") and
Duke Construction Limited Partnership (the "Construction Partnership"), are
owned by the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity other
than the subsidiaries and the Property Partnerships, except for such
interests as, in the aggregate, are not material to the condition,
financial or otherwise, or the earnings,
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assets, business affairs or business prospects of the Duke Group considered
as a single enterprise. Duke Services, Inc. is the sole general partner
and a 1% owner of the Services Partnership, and the Operating Partnership
and DMI Partnership are the sole limited partners and 9% and 90% owners,
respectively, of the Services Partnership. The Services Partnership is the
sole general partner and a 1% owner of the Construction Partnership. The
99% limited partnership interest of the Construction Partnership is owned
by Duke Realty Construction, Inc., an Indiana corporation which is owned
4.04% by the Services Partnership and 95.96% by DMI Partnership.
(xiv) Except for transactions described in the Prospectus and
transactions in connection with stock option and dividend reinvestment
plans, there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or partnership or other equity interest in the Company,
the Operating Partnership or any subsidiary except for the Units which may
be issued in exchange for shares of Common Stock.
(xv) Each of the Property Partnerships has been duly formed as a
partnership or a limited liability company, as the case may be, and is
validly existing and in good standing as a partnership or limited liability
company under the laws of its jurisdiction of organization and, if formed
under the laws of a jurisdiction other than the State of Indiana, in good
standing under the laws of such jurisdiction; each of the Property
Partnerships has the requisite power and authority to own, lease and
operate its properties, to conduct the business in which it is engaged and
to enter into and perform its respective obligations under the agreements,
to which it is a party. Each of the partnership or operating agreements,
as the case may be, of the Property Partnerships is in full force and
effect.
(xvi) The applicable Underwritten Securities, if such Underwritten
Securities are either Common Stock, Preferred Stock or Depositary Shares,
have been duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and delivered by
the Company, pursuant to this Agreement and the applicable Terms Agreement
against payment of the consideration set forth in the Terms Agreement or
any Delayed Delivery Contract (as defined in Section 2 hereof), will be
validly issued, fully paid and non-assessable. Upon payment of the
purchase price and delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid and marketable
title to such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform to all
statements and descriptions related thereto contained in the Prospectus.
The form of stock or depositary certificate to be used to evidence the
applicable Underwritten Securities will be in due and proper form and will
comply with all applicable legal requirements. The issuance of such
applicable Underwritten Securities is not subject to any preemptive or
other similar rights.
(xvii) The applicable Underwritten Securities, if such Underwritten
Securities are Debt Securities, are in the form contemplated by the
Indenture, have been duly authorized by the Operating Partnership for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed, authenticated, issued and delivered in the manner provided for in
this Agreement, any Terms Agreement and the applicable Indenture, against
payment of the consideration therefor specified in the applicable Terms
Agreement or any Delayed Delivery Contract (as defined in Section 2
hereof), such Debt Securities will constitute valid and legally binding
obligations of the Operating Partnership, entitled to the benefits of the
Indenture and such Debt Securities will be enforceable against the
Operating Partnership in accordance with their terms. Upon payment of the
purchase price and delivery of such Underwritten Securities in accordance
herewith, each of the Underwriters will receive good, valid and marketable
title to such Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and equities.
The terms of such applicable Underwritten Securities conform to all
statements and descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with all unsecured
indebtedness (other than subordinated indebtedness) of the Operating
Partnership that
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is outstanding on the Representation Date or that may be incurred
thereafter, and senior to all subordinated indebtedness of the Operating
Partnership that is outstanding on the Representation Date or that may be
incurred thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xviii) If applicable, the Common Stock issuable upon conversion of
any of the Preferred Stock (including Preferred Stock represented by
Depositary Shares) will have been duly and validly authorized and reserved
for issuance upon such conversion or exercise by all necessary action and
such stock, when issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to preemptive or
other similar rights; the Common Stock so issuable conforms in all material
respects to all statements relating thereto contained in the Prospectus.
(xix) None of the entities comprising the Duke Group is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may be
bound, or to which any of its property or assets is subject, which default
separately or in the aggregate would have a Material Adverse Effect.
(xx) (A) This Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, and,
assuming due authorization, execution and delivery by the Representatives,
constitutes a valid and binding obligation of the Company and the Operating
Partnership, enforceable in accordance with its terms, and (B) at the
Representation Date, the Terms Agreement and the Delayed Delivery Contracts
(as defined in Section 2 hereof), if any, will have been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, as the case may be, and, assuming due authorization, execution
and delivery by the Representatives will be valid and binding agreements,
enforceable in accordance with its or their terms.
(xxi) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, has been duly and validly authorized, executed and
delivered by the Operating Partnership, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the
Operating Partnership, enforceable in accordance with its terms, and (B)
conforms in all material respects to the description thereof in the
Prospectus.
(xxii) Each of the partnership agreements to which any of the
Company, the Operating Partnership or their respective subsidiaries is a
party has been duly authorized, executed and delivered by such party and
constitutes a valid and binding obligation thereof, enforceable in
accordance with its terms.
(xxiii) The execution and delivery of this Agreement, the applicable
Terms Agreement, any Indenture and the Underwritten Securities, the
performance of the obligations set forth herein or therein, and the
consummation of the transactions contemplated hereby and thereby or in the
Prospectus by the Company and the Operating Partnership, will not conflict
with or constitute a breach or violation by the Company or the Operating
Partnership of, or default under, or result in the creation of imposition
of any lien, charge or encumbrance upon any Property or assets of the Duke
Group pursuant to any contract, indenture, mortgage, loan agreement, note,
lease, joint venture or partnership agreement or other instrument or
agreement to which the Company, the Operating Partnership or any subsidiary
is a party or by which they, either of them, any of their respective
properties or other assets or any Property may be bound or subject which is
material to the Duke Group as a whole; nor will such action conflict with
or constitute a breach or violation by the Company or the Operating
Partnership of, or default under, (A) the charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, of the
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Company, the Operating Partnership or any subsidiary or (B) to the extent
it is material, any applicable law, rule, order, administrative regulation
or administrative or court decree.
(xxiv) No labor dispute with the employees of the Duke Group exists
or, to the knowledge of the Company or the Operating Partnership, is
imminent; and neither the Company nor the Operating Partnership is aware of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might be expected
to have a Material Adverse Effect.
(xxv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or the Operating Partnership, threatened
against or affecting any entity belonging to the Duke Group, any Properties
or any officer or director of the Company, which is material to the Duke
Group as a whole and is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed therein), or that, if
determined adversely to any entity belonging to the Duke Group or any
Property, or any such officer or director, will or could reasonably be
expected to result in any Material Adverse Effect, or which might
materially and adversely affect the Properties or assets of the Duke Group
or which might materially and adversely affect the consummation of this
Agreement, the applicable Terms Agreement, the Indenture, if any, or the
transactions contemplated herein and therein. There are no pending legal
or governmental proceedings to which any entity belonging to the Duke Group
is a party or of which they or any of their respective properties or assets
or any Property or Property Partnership is the subject, including ordinary
routine litigation incidental to the business, that are, considered in the
aggregate, material to the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Duke Group
as a whole. There are no statutes or contracts or documents of the
entities comprising the Duke Group which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xxvi) No authorization, approval, consent or order of any court or
governmental authority or agency is required that has not been obtained in
connection with the consummation by the Company, the Operating Partnership
or both, as the case may be, of the transactions contemplated by this
Agreement, the applicable Terms Agreement, or the applicable Indenture, if
any, except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state or foreign
securities laws or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxvii) At all times since February 13, 1986, the Company has been,
and upon the sale of the applicable Underwritten Securities, the Company
will continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and its proposed
method of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxviii) None of the entities comprising the Duke Group is required
to be registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), or is or will become a "holding company" or a "subsidiary
company" of a "registered holding company" as defined in the Public Utility
Holding Company Act of 1935, as amended.
(xxix) None of the entities comprising the Duke Group is required
to own or possess any trademarks, service marks, trade names or copyrights
not now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(xxx) Each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies
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necessary to conduct the business now operated by it, or proposed to be
conducted by it, and none of the entities comprising the Duke Group has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(xxxi) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company or the Operating
Partnership under the 1933 Act.
(xxxii) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable
Closing Time. Unless otherwise agreed upon with reference to Preferred
Stock, as of the applicable Representation Date the Preferred Stock will
have been approved for listing on the New York Stock Exchange upon notice
of issuance.
(xxxiii) The Debt Securities will have an investment grade rating
from one or more nationally recognized statistical rating organizations at
the Representation Date and at the applicable Closing Time.
(xxxiv) (A) With respect to the Properties, the Company or the
Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements thereon),
leasehold interests and general and limited partnership interests, in each
case free and clear of all liens, encumbrances, claims, security interests
and defects, except such as are (i) described in the Prospectus or the
Company's Annual Report on Form 10-K for the most recent fiscal year ended,
(ii) referred to in the title policies of such Properties, (iii) serving as
security for loans described in the Prospectus, and (iv) nonmaterial and
placed on a Property in connection with such Property's development; (B)
all contracts of the Operating Partnership and any subsidiary to provide
leasing, property management and construction management services, general
contractor services for third parties, and real estate development,
construction and miscellaneous tenant services businesses (the "Related
Businesses"), are enforceable by and in the name of the Operating
Partnership and the applicable subsidiary, as the case may be; (C) all
liens, charges, encumbrances, claims, or restrictions on or affecting any
of the Properties or Related Businesses and the assets of the entities
comprising the Duke Group which are required to be disclosed in the
Prospectus are disclosed therein; (D) neither the Operating Partnership,
any Property Partnership nor any tenant of any of the Properties is in
default under any of the ground leases (as lessee) or space leases (as
lessor) relating to, or any of the mortgages or other security documents or
other agreements encumbering or otherwise recorded against, the Properties,
and none of the entities comprising the Duke Group knows of any event
which, but for the passage of time or the giving of notice, or both, would
constitute a default under any of such documents or agreements, other than
such defaults that would not have a Material Adverse Effect; (E) no tenant
under any of the leases, pursuant to which the Operating Partnership or any
Property Partnership, as lessor, leases its Property, has an option or
right of first refusal to purchase the premises demised under such lease,
the exercise of which would have a Material Adverse Effect; (F) each of the
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except for such
failures to comply that would not individually or in the aggregate have a
Material Adverse Effect; and (G) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding or action that will in any
manner affect the size of, use of, improvements on, construction on or
access to the Properties, except such proceedings or actions that would not
have a Material Adverse Effect on the condition, financial or otherwise, or
on the earnings, assets, business affairs or business prospects of or with
respect to such Property, the Operating Partnership or the Property
Partnership owning an interest in such Property.
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(xxxv) Immediately following the application of the proceeds of the
sale of the Underwritten Securities in the manner set forth in the
Prospectus, the mortgages and deeds of trust encumbering the Properties and
assets described in the Prospectus will not be convertible and none of the
Property Partnerships nor any person related to or affiliated with the
Property Partnerships will hold a participating interest therein and said
mortgages and deeds of trust will not be cross-defaulted or cross-
collateralized with any property not owned by the Operating Partnership.
(xxxvi) Each of the Company, the Operating Partnership and their
respective subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and none
of the Company, the Operating Partnership and their respective subsidiaries
has any reason to believe that it or any of its subsidiaries will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its businesses at a cost that would not have a
Material Adverse Effect, except as described in or contemplated by the
Registration Statement and the Prospectus.
(xxxvii) The Company and the Operating Partnership have not taken and
will not take, directly or indirectly, any action prohibited by Rule 10b-6
under the 1934 Act.
(xxxviii) The assets of the Company do not constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended.
(xxxix) Except as disclosed in the Prospectus, and, with respect to
clauses (A), (B) and (C) below, except for activities, conditions,
circumstances or matters that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of or with respect to any Property or the
Property Partnership owning an interest in such Property, (A) each
Property, including, without limitation, the Environment (as defined below)
associated with such Property, is free of any Hazardous Substance (as
defined below), (B) neither the Company nor the Operating Partnership nor
any Property Partnership has caused or suffered to occur any Release (as
defined below) of any Hazardous Substance into the Environment on, in,
under or from any Property, and no condition exists on, in, under or, to
the knowledge of the Company or the Operating Partnership, that could
result in the incurrence of material liabilities or any material violations
of any Environmental Law (as defined below), give rise to the imposition of
any Lien (as defined below) under any Environmental Law, or cause or
constitute a health, safety or environmental hazard to any property, person
or entity; (C) neither the Company, the Operating Partnership nor any
Property Partnership is engaged in or intends to engage in any
manufacturing or any other operations at the Properties that (1) require
the use, handling, transportation, storage, treatment or disposal of any
Hazardous Substance or (2) require permits or are otherwise regulated
pursuant to any Environmental Law, other than permits which have been
obtained; (D) neither the Company nor the Operating Partnership nor any
Property Partnership has received any notice of a claim material to the
Duke Group as a whole under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on or originating from any
Property; (E) neither the Company nor the Operating Partnership nor any
Property Partnership has received any notice from any Governmental
Authority (as defined below) claiming any violation of any Environmental
Law; and (F) no Property is included or, to the knowledge of the Company or
the Operating Partnership, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as defined below) by the United
States Environmental Protection Agency (the "EPA") or, with the exception
of one Property, in respect to which the EPA has advised the Company that
no further remedial action is planned, on the Comprehensive Environmental
Response, Compensation, and Liability Information System database
maintained by the EPA, and has not otherwise been identified by the EPA as
a potential CERCLA removal, remedial or response site or included or, to
the knowledge of the Company or the Operating Partnership, proposed for
inclusion on, any similar list of potentially contaminated sites pursuant
to any other Environmental Law.
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Excluding such customary amounts as may be lawfully generated, stored,
used, treated, disposed of, or otherwise handled or located at any
Property, as used herein "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, toxic waste or similarly designated materials,
including, without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste,
including any such substance, pollutant or waste identified or regulated
under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional Hazardous
Material Table, 49 C.F.R. Section 172.101, as the same may now or hereafter
be amended, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 3202, as the same may now or hereafter be
amended); "Environment" shall mean any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. Section 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Section 2601, et seq.), the Occupational Safety and Health Act
of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
and all other federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects; "Governmental
Authority" shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement
or enforce any Environmental Law; "Lien" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment or other liability
in, on or affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing or
previously containing any Hazardous Substance or any release, emission,
discharge or similar term, as those terms are defined or used in any
Environmental Law.
(xl) Each of the Company, the Operating Partnership and their
subsidiaries has obtained title insurance on all of the properties owned by
each of them in an amount at least equal to (A) the cost to acquire land
and improvements in the case of an acquisition of improved property or (B)
the cost to acquire land in the case of an acquisition of unimproved
property and in each case such title insurance is in full force and effect.
(xli) Each of the Company and the Operating Partnership has filed
all federal, state, local and foreign income tax returns which have been
required to be filed (except in any case in which the failure to so file
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of such entity) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or of any of their respective subsidiaries and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company or the Operating Partnership, as the case may be, may grant, if so
provided in the applicable Terms Agreement relating to the Initial Underwritten
Securities, an option to the Underwriters named in such Terms Agreement,
severally and not jointly, to purchase up to the number of Option Securities set
forth therein at the same price per Option Security as is applicable to the
Initial Underwritten Securities. Such option, if granted, will expire 30 days
(or such lesser number of days as may be specified in the applicable Terms
Agreement) after the Representation Date relating to the Initial Underwritten
Securities, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
the Representatives to the Company or the Operating Partnership, as the case may
be, setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by the Representatives and the Company or the
Operating Partnership, as the case may be. If the option is exercised as to all
or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Underwritten Securities to be purchased by the Underwriters shall be
made at the offices of Rogers & Wells, 200 Park Avenue, New York, New York
10166, or at such other place as shall be agreed upon by the Representatives and
the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on
the fourth business day (or the third business day if required under Rule 15c6-1
of the 1934 Act, or unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by the Representatives and the Company (each
referred to herein as the "Closing Time"). In addition, in the event that any
or all of the Option Securities are purchased by the Underwriters, payment of
the purchase price for, and delivery of certificates for, such Option Securities
shall be made at the above-mentioned offices of Rogers & Wells, or at such other
place as shall be agreed upon by the Representatives and the Company or the
Operating Partnership, as the case may be, on each Date of Delivery as specified
in the notice from the Representatives to the Company. Payment shall be made to
the Company or the Operating Partnership, as the case may be, by certified or
official bank check or checks drawn in (i) New York Clearing House funds or
similar next day funds, if the Underwritten Securities are either Common Stock,
Preferred Stock or Depositary Shares, or (ii) Federal or similar same day funds,
if the Underwritten Securities are Debt Securities, in each case payable to the
order of the Company or the Operating Partnership, as the case may be, against
delivery to the Representatives for the respective accounts of the Underwriters
of certificates for the Underwritten Securities to be purchased by them.
Certificates for the Underwritten Securities and the Option Securities, if any,
shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities and the Option Securities, if any, which
it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities or the Option
Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as the case
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may be, but any such payment shall not relieve such Underwriter from its
obligations hereunder. The certificates for the Initial Underwritten Securities
and the Option Securities, if any, will be made available for examination and
packaging by the Representatives not later than 10:00 A.M. on the last business
day prior to the Closing Time or the relevant Date of Delivery, as the case may
be, in New York, New York.
If authorized by the applicable Terms Agreement, the Underwriters
named therein may solicit offers to purchase Underwritten Securities from the
Company or the Operating Partnership, as the case may be, pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit B hereto with such changes therein as the Company or the Operating
Partnership, as the case may be, may approve. As compensation for arranging
Delayed Delivery Contracts, the Company or the Operating Partnership, as the
case may be, will pay to the Representatives at Closing Time, for the respective
accounts of the Underwriters, a fee equal to that percentage of the amount of
Underwritten Securities for which Delayed Delivery contracts are made at the
applicable Closing Time as is specified in the applicable Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
described in the Prospectus. At the applicable Closing Time, the Company or the
Operating Partnership, as the case may be, will enter into Delayed Delivery
Contracts (for not less than the minimum amount of Underwritten Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
or the Operating Partnership, as the case may be, as provided below, but not for
an aggregate principal amount of Underwritten Securities in excess of that
specified in the applicable Terms Agreement. The Underwriters will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
The Representatives shall submit to the Company or the Operating
Partnership, as the case may be, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company or the Operating Partnership, as the case may be,
will enter into Delayed Delivery Contracts and the amount of Underwritten
Securities to be purchased by each of them, and the Company or the Operating
Partnership, as the case may be, will advise the Representatives at least two
business days prior to the applicable Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company or the Operating Partnership, as the case may be, and the amount of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The amount of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the amount of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by the
Representatives to the Company or the Operating Partnership, as the case may be;
provided, however, that the total amount of Underwritten Securities to be
purchased by all Underwriters shall be the total amount of Underwritten
Securities covered by the applicable Terms Agreement, less the amount of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each
of the Company and the Operating Partnership covenants with the Representatives,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the
Company or the Operating Partnership, as the case may be, will prepare a
Prospectus Supplement setting forth the number of Underwritten Securities
covered thereby and their terms not otherwise specified in the Prospectus
pursuant to which the Underwritten Securities are being issued, the names
of the Underwriters participating in the offering and the number of
Underwritten Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be
purchased by the Underwriters from the Company or the Operating
Partnership, as the case may be, the initial public offering price, if any,
the selling concession and reallowance, if any, and such other information
as the Representatives and the Company or the Operating Partnership, as the
case may be, deem appropriate in connection with the offering of the
Underwritten
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Securities; and the Company or the Operating Partnership, as the case may
be, will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424(b) of the 1933 Act Regulations
and will furnish to the Underwriters named therein as many copies of the
Prospectus (including such Prospectus Supplement) as the Representatives
shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule 430A of
the 1933 Act Regulations, then immediately following the execution of the
Terms Agreement, the Company and the Operating Partnership will prepare,
and file or transmit for filing with the Commission in accordance with such
Rule 430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended
Prospectus, or, if required by such Rule 430A, a post-effective amendment
to the Registration Statement (including amended Prospectuses), containing
all information so omitted. If required, the Company and the Operating
Partnership will prepare and file or transmit for filing a Rule 462(b)
Registration Statement not later than the date of execution of the Terms
Agreement. If a Rule 462(b) Registration Statement is filed, the Company
and the Operating Partnership shall make payment of, or arrange for payment
of, the additional registration fee owing to the Commission required by
Rule 111 of the 1933 Act Regulations.
(c) The Company and the Operating Partnership will notify the
Representatives immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus Supplement or
other supplement or amendment to the Prospectus to be filed pursuant to the
1933 Act, (iii) the receipt of any comments from the Commission, (iv) any
request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company and the
Operating Partnership will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company and the Operating Partnership will give the
Representatives notice of its intention to file or prepare any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise, will
furnish the Representatives with copies of any such amendment or supplement
a reasonable amount of time prior to such proposed filing and, unless
required by law, will not file or use any such amendment or supplement or
other documents in a form to which the Representatives or counsel for the
Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the
Representatives as soon as possible as many signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and of
each amendment thereto (including documents incorporated by reference into
the Prospectus) as the Representatives may reasonably request.
(f) The Company and the Operating Partnership will furnish to each
Underwriter, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter
may reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
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(g) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, the Company and the Operating Partnership will forthwith amend
or supplement the Prospectus (in form and substance reasonably satisfactory
to counsel for the Underwriters) so that, as so amended or supplemented,
the Prospectus will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, and the Company and the Operating
Partnership will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities
for offering and sale under the applicable securities laws and real estate
syndication laws of such states and other jurisdictions as the
Representatives may designate. In each jurisdiction in which the
Underwritten Securities have been so qualified, the Company and the
Operating Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the
Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the Company
and the Operating Partnership will make generally available to its security
holders as soon as practicable, but not later than 90 days after the close
of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the
net proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during
the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to Sections 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies
that have securities listed on such exchange and, unless otherwise agreed
upon with respect to Preferred Stock, Depository Shares and Debt
Securities, will use its best efforts to maintain the listing of any
Underwritten Securities listed on the New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the Operating
Partnership will qualify an Indenture under the 1939 Act and will endeavor
to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's Corporation
("S&P"), Moody's Investors Service, Inc. ("Moody's") or any other
nationally recognized statistical rating organization to provide their
respective credit ratings of any Underwritten Securities, if applicable.
(o) During a period of 90 days from the date of any Prospectus
Supplement, the Company and the Operating Partnership will not, without the
prior written consent of the Representatives, directly or indirectly, sell,
offer to sell, grant any option for the sale of, enter into any agreement
to sell, or
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otherwise dispose of, (i) any securities of the same class or series or
ranking on a parity with any Underwritten Securities (other than the
Underwritten Securities covered by such Prospectus Supplement) or any
security convertible into or exchangeable for shares of such Underwritten
Securities and (ii) if such Prospectus Supplement relates to Preferred
Stock that is convertible into or exchangeable for Common Stock, any Common
Stock or Units or any security convertible into or exchangeable for shares
of Common Stock. This transfer restriction does not apply to (i) the
possible issuance of shares of Common Stock upon the exchange of Units by
holders of Units other than DMI Partnership (except as to Units exchanged
by DMI Partnership pursuant to a Unit bonus plan for employees of the
Company and its subsidiaries) and the directors and executive officers of
the Company; (ii) grants of options, and the issuance of shares in respect
of such options, pursuant to a stock option plan; (iii) the issuance of
shares pursuant to a dividend reinvestment plan; and (iv) the issuance of
shares of Common Stock, or any security convertible into or exchangeable or
exercisable for Common Stock, in connection with the acquisition of real
property or an interest or interests in real property, if the recipient of
such shares or other securities agrees in writing to not, without the prior
written consent of Merrill Lynch and the Company and the Operating
Partnership, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of any of such securities until the
expiration of a 90-day period from the date of any Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive
rights and other similar rights, a sufficient number of shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the Common Stock on the New York
Stock Exchange.
The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company and the Operating Partnership will deliver to
the Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the Commission
or any governmental authority succeeding to any of the Commission's
functions, and (ii) such other information concerning the Company and the
Operating Partnership as the Representatives may reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating Partnership
will pay all expenses incident to the performance of its obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement and the applicable Terms Agreement;
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the Underwritten Securities, the
sale of the Underwritten Securities to the Underwriters, their transfer between
the Underwriters and the Underwriters pursuant to an agreement between such
Underwriters and the fees and expenses of the transfer agent for the
Underwritten Securities; (iv) the fees and disbursements of the Company's and
the Operating Partnership's counsel and accountants; (v) the qualification of
the Underwritten Securities and the Common Stock issuable upon conversion of
Preferred Stock, if any, under securities laws and real estate syndication laws
in accordance with the provisions of Section 3(h) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey;
(vi) the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto;
(vii) the cost of printing, or reproducing, and delivering to the Underwriters
copies of the Blue Sky Survey; (viii) the fee of the National Association of
Securities Dealers, Inc., if any; (ix) the fees and expenses
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incurred in connection with the listing of the Underwritten Securities and the
Common Stock issuable upon conversion of Preferred Stock, if any, on the New
York Stock Exchange, any other national securities exchange or quotation system;
(x) any fees charged by nationally recognized statistical rating organizations
for the rating of the Debt Securities, if any; (xi) the printing and delivery to
the Underwriters of copies of the Indenture; (xii) the fees and expenses of the
Trustee, including the reasonable fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Underwritten Securities, (xiii)
the preparation, issuance and delivery to the Depository Trust Company for
credit to the accounts of the respective Underwriters of any global note
registered in the name of Cede & Co., as nominee for the Depository Trust
Company; and (xiv) any transfer taxes imposed on the sale of the Underwritten
Securities to the several Underwriters.
If this Agreement is cancelled or terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i), Section 9(a)(iv)
or Section 9(a)(v) hereof, the Company and the Operating Partnership shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company and
the Operating Partnership herein contained, to the performance by the Company
and the Operating Partnership of their respective obligations hereunder, and to
the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission; (ii) if the
Company or the Operating Partnership, as the case may be, has elected to
rely upon Rule 430A of the 1933 Act Regulations, the public offering price
of and the interest rate on the Underwritten Securities, as the case may
be, and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
applicable Closing Time, the Company or the Operating Partnership, as the
case may be, shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirements of Rule 430A of the 1933 Act
Regulations; (iii) if Preferred Stock is being offered, the rating assigned
by any nationally recognized statistical rating organization as of the date
of the applicable Terms Agreement shall not have been lowered since such
date nor shall any such rating organization have publicly announced that it
has placed the Preferred Stock on what is commonly termed a "watch list"
for possible downgrading; (iv) the rating assigned by any nationally
recognized statistical rating organization to any long-term debt securities
of the Operating Partnership as of the date of the applicable Terms
Agreement shall not have been lowered since such date nor shall any such
rating organization have publicly announced that it has placed any long-
term debt securities of the Operating Partnership on what is commonly
termed a "watch list" for possible downgrading; and (v) there shall not
have come to the attention of the Representatives any facts that would
cause the Representatives to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, included an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, not misleading. If a Rule 462(b) Registration
Statement is required, such Rule 462(b) Registration Statement shall have
been transmitted to the Commission for filing and have become effective
within the prescribed time period, and, prior to Closing Time, the Company
and the Operating Partnership shall have provided to the Underwriters
evidence of such filing and effectiveness in accordance with Rule 462(b) of
the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
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(1) The favorable opinion, dated as of Closing Time, of Bose
McKinney & Evans, counsel for each of the Company and the Operating
Partnership and their respective subsidiaries in form and substance
reasonably satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company is a corporation duly organized and
existing under and by virtue of the laws of the State of Indiana,
has filed its most recent annual report required by law with the
Secretary of State of Indiana or is not yet required to file such
annual reports, and has not filed Articles of Dissolution. The
Company has corporate power and authority to conduct the business
in which it is engaged or proposes to engage and to own, lease
and operate its properties as described in the Prospectus and to
enter into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Company or any
Property.
(ii) The Operating Partnership is a limited partnership
duly organized and existing under and by virtue of the laws of
the State of Indiana. The Operating Partnership has partnership
power and authority to conduct the business in which it is
engaged and proposes to engage and to own, lease and operate its
properties as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the other
agreements to which it is a party. The Operating Partnership is
duly qualified or registered as a foreign partnership and is in
good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or register would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Operating Partnership or any Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property Partnerships)
has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power
and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties
as described in the Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation
in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Duke Group considered as a single enterprise.
(v) If the applicable Underwritten Securities are
issued by the Company, the capital stock of the Company is as set
forth in the Prospectus under "Capitalization." All the issued
and outstanding shares of capital stock have been duly authorized
and are validly issued, fully paid and non-assessable. To the
best of such counsel's knowledge, after due inquiry, no shares of
capital stock of the Company are
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reserved for any purpose except in connection with stock option
and the dividend reinvestment plans and the possible issuance of
shares of Common Stock upon the exchange of Units. To the best
of such counsel's knowledge after due inquiry, except for Units,
there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company, and except for
options under a stock option plan, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for shares of such stock or any other securities
of the Company.
(vi) All the issued and outstanding Units have been
duly authorized and are validly issued, fully paid and non-
assessable, except as provided under Indiana Code Section 23-16-
7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of
each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and are owned by
the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(viii) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the
case may be, and is validly existing and in good standing as a
partnership on a limited liability company under of the laws of
its jurisdiction of organization; each Property Partnership has
all requisite power and authority to own, lease and operate the
Properties, to conduct the business in which it is engaged and to
enter into and perform its respective obligations under the
agreements to which it is a party. Each of the partnership or
operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(ix) The applicable Underwritten Securities, if such
Underwritten Securities are either Common Stock, Preferred Stock
or Depositary Shares, have been duly authorized by the Company
for issuance and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the Company,
pursuant to this Agreement and the applicable Terms Agreement
against payment of the consideration set forth in the Terms
Agreement or any Delayed Delivery Contract, will be validly
issued, fully paid and non-assessable. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good,
valid and marketable title to such Underwritten Securities, which
to such counsel's knowledge, after due inquiry, are free and
clear of all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the applicable
Underwritten Securities conform to all statements and
descriptions related thereto contained in the Prospectus. The
form of stock or depositary certificate to be used to evidence
the applicable Underwritten Securities is in due and proper form
and complies with all applicable legal requirements. The
issuance of the applicable Underwritten Securities is not subject
to any preemptive or other similar rights.
(x) The applicable Underwritten Securities, if such
Underwritten Securities are Debt Securities, are in the form
contemplated in the Indenture, have been duly authorized by the
Operating Partnership for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed, authenticated,
issued and delivered in the manner provided for in this
Agreement, the applicable Terms Agreement and the applicable
Indenture, against payment of the consideration therefor
specified in the applicable Terms Agreement or any Delayed
Delivery Contract, such Debt Securities will constitute valid and
legally binding obligations of the Operating Partnership entitled
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to the benefits of the Indenture and such Debt Securities will be
enforceable against the Operating Partnership in accordance with
their terms, except as such enforceability may be (1) limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
or other similar laws affecting the rights and remedies of
creditors generally and (2) subject to general principles of
equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law. Upon
payment of the purchase price and delivery of such Underwritten
Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten
Securities, which to such counsel's knowledge, after due inquiry,
are free and clear of all security interests, mortgages, pledges,
liens, encumbrances, claims and equities. The terms of the
applicable Underwritten Securities conform to all statements and
descriptions related thereto in the Prospectus. Such
Underwritten Securities rank and will rank on a parity with all
unsecured indebtedness (other than subordinated indebtedness of
the Operating Partnership that is outstanding on the
Representation Date or that may be incurred thereafter, and
senior to all subordinated indebtedness of the Operating
Partnership that is outstanding on the Representation Date or
that may be incurred thereafter, except that such Underwritten
Securities will be effectively subordinated to the prior claims
of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have been duly and
validly authorized and reserved for issuance upon such conversion
or exercise by all necessary action and such stock, when issued
upon such conversion or exercise, will be duly and validly
issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to
preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(xii) To the best knowledge of such counsel, none of the
entities comprising the Duke Group is in violation of its
charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity
is a party or by which such entity may be bound, or to which any
of the property or assets of such entity is subject, except for
defaults which are not material to the Duke Group as a whole.
(xiii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, were duly
and validly authorized, executed and delivered by the Company and
the Operating Partnership, as applicable, and, the Company and
the Operating Partnership have the power and authority to perform
their obligations hereunder and thereunder.
(xiv) The Indenture has been duly qualified under the
1939 Act and has been duly and validly authorized, executed and
delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee, constitutes
a valid and binding obligation of the Operating Partnership,
enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a
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proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law. The
Indenture conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(xv) Each of the partnership agreements to which any of
the Company, the Operating Partnership or their respective
subsidiaries identified in an exhibit to such counsel's opinion
is a party has been duly authorized, executed and delivered by
such party and constitutes a valid and binding obligation
thereof, enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law), and except as rights to indemnity thereunder may be limited
by applicable law.
(xvi) The execution and delivery of this Agreement, the
applicable Terms Agreement, any Indenture and the Underwritten
Securities, the performance of the obligations set forth herein
or therein, and the consummation of the transactions contemplated
hereby and thereby or in the Prospectus by the Company and the
Operating Partnership, will not conflict with or constitute a
breach or violation by the Company or the Operating Partnership
of, or default under, or result in the creation of imposition of
any lien, charge or encumbrance upon Property or assets of the
Duke Group pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement known to such counsel, after due
inquiry, to which the Company, the Operating Partnership or any
subsidiary is a party or by which they, either of them, any of
their respective properties or other assets or any Property may
be bound or subject which is material to the Duke Group as a
whole; nor will such action conflict with or constitute a breach
or violation by the Company or the Operating Partnership of, or
default under, (A) the charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, of the
Company, the Operating Partnership or any subsidiary or (B) to
the extent it is material, any applicable law, rule, order,
administrative regulation or administrative or court decree.
(xvii) Assuming the Company was organized in conformity
with and has satisfied the requirements for qualification and
taxation as a "real estate investment trust" under the Code for
each of its taxable years from and including the first taxable
year for which the Company made the election to be taxed as a
"real estate investment trust", the proposed methods of operation
of the Company, the Operating Partnership and the Services
Partnership as described in the Registration Statement and the
Prospectus Supplement and as represented by the Company, the
Operating Partnership and the Services Partnership will permit
the Company to continue to qualify to be taxed as a "real estate
investment trust" for its current and subsequent taxable years.
(xviii) None of the entities comprising the Duke Group is
required to be registered under the 1940 Act or is or will become
a "holding company" or a "subsidiary company" of a "registered
holding company" as defined in the Public Utility Holding Company
Act of 1935, as amended.
(xix) To such counsel's knowledge, after due inquiry,
(i) each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it,
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and (ii) none of the entities comprising the Duke Group has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Duke Group
considered as a single enterprise.
(xx) No authorization, approval, consent or order of
any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the applicable
Underwritten Securities to the Underwriters hereunder, except
such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
or foreign securities laws, as to which such counsel need express
no opinion, or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxi) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the Prospectus pursuant to Item 12
of Form S-3 under the 1933 Act, at the time they were filed with
the Commission, complied and will comply as to form in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
(xxiii) The Registration Statement is effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(xxiv) At the time the Registration Statement became
effective and at the Representation Date, (A) the Registration
Statement and the Prospectus (other than the financial statements
and supporting schedules included therein, or the Statement of
Eligibility, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and (B) the Prospectus and
the Term Sheet, if any, complied with Rule 434(c)(2).
There are no legal or governmental proceedings
pending or, to the best of their knowledge and information,
threatened which are required to be disclosed in the Registration
Statement or the Prospectus, other than those disclosed therein,
and all pending legal or governmental proceedings to which any of
the entities comprising the Duke Group is a party or to which any
of their properties is subject which are not described in the
Registration Statement or the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in
the aggregate, not material.
(xxvi) The information in the Prospectus under "The
Company and the Operating Partnership," "Description of Debt
Securities," "Description of Preferred Stock," "Description of
Depositary Shares," "Description of Common Stock," and the
information in the applicable Prospectus Supplement under, if
applicable, "The Company"
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or "The Operating Partnership," as the case may be, to the extent
that it constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been reviewed
by them and is correct and presents fairly the information
required to be disclosed therein.
(xxvii) There are no statutes, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct, and
no material default exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument so described, referred to or
filed.
(xxviii) To the best knowledge of such counsel, there are
no persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Operating Partnership
under the 1933 Act.
(xxix) The Company satisfies all conditions and
requirements for filing the Registration Statement on Form S-3
under the 1933 Act and 1933 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Rogers & Wells, counsel for the Underwriters, (A) with respect to the
matters set forth in Section 5(b)(1)(i) (with respect to the Company
only and with respect to the first sentence only), Section
5(b)(1)(ix), (with respect to the first and last sentences only) or
5(b)(i)(x) (with respect to the first sentence only), as applicable,
Section 5(b)(1)(xiii) (with respect to the first clause only), Section
5(b)(xiv) and Section 5(b)(xxiv) and (B) containing a statement
similar to the statement referred to in the first paragraph of
Section 5(b)(4).
(3) In respect to Properties which are not under development at
the Closing Time, the favorable opinion, in form and substance
satisfactory to counsel for the Underwriters, dated as of the Closing
Time, of local counsel for the Company or the Operating Partnership
or, if the Company's or the Operating Partnership's ownership interest
in a Property Partnership exceeds 10%, the appropriate Property
Partnership, satisfactory to the Underwriters, with respect to (i) the
organization, existence, power and authority of each Property
Partnership; (ii) zoning matters (unless a 3.1 zoning endorsement has
been issued by the applicable title company); and (iii) the possession
by the Company, the Operating Partnership or the applicable Property
Partnership of those licenses, permits, consents and orders of
governmental, municipal or regulatory authorities then necessary for
the operation by the Company, the Operating Partnership or the
applicable Property Partnership of its Property and as otherwise
contemplated in the Registration Statement, provided, however, that
such opinion shall only be required in respect to Properties acquired
or developed since the date of the prospectus supplement relating to
an offering managed or co-managed by Merrill Lynch & Co. preceding the
Prospectus Supplement in respect to which the opinion is being
delivered.
(4) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Bose McKinney & Evans and
Rogers & Wells shall additionally state that such counsel has
participated in conferences with officers and other representatives of
the Company or the Operating Partnership, as the case may be, and the
independent public accountants for the Company or the Operating
Partnership, as the case may be, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed and in the
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preparation of the Registration Statement and the Prospectus and, on
the basis of the foregoing, nothing has come to their attention that
would lead them to believe that either the Registration Statement or
any amendment thereto (excluding the financial statements and
financial schedules included or incorporated by reference therein or
the Statement of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an Annual
Report on Form 10-K was filed by the Company and the Operating
Partnership with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding the
financial statements or financial schedules included or incorporated
by reference therein or the Statement of Eligibility, as to which such
counsel need express no belief), at the Representation Date or at the
Closing Time, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke Group
and (B) as to the qualification and good standing of each of the
entities comprising the Duke Group to do business in any jurisdiction,
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, and (C) in respect to the opinion by
Rogers & Wells only, as to certain matters of Indiana law, the opinion
of Bose McKinney & Evans given pursuant to Section 5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against any entity belonging to the Duke
Group which would be required to be set forth in the Prospectus other than
as set forth therein; (ii) there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group, whether or not arising in the ordinary course
of business; (iii) no proceedings shall be pending or threatened against
such entity or any Property before or by any federal, state or other
commission, board or administrative agency wherein an unfavorable decision,
ruling or finding might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of any entity belonging to the Duke Group or
any Property, as the case may be, other than as set forth in the
Prospectus; (iv) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or threatened by
the Commission or by the state securities authority of any jurisdiction;
and (v) the Representatives shall have received a certificate of the
President or a Vice President of the Company and the Operating Partnership
and of the chief financial or chief accounting officer of each such entity,
dated as of the Closing Time, evidencing compliance with the provisions of
this subsection (c) and stating that the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time.
(d) At the time of the execution of the applicable Terms Agreement,
the Representatives shall have received from KPMG Peat Marwick LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
to the effect that: (i) they are independent public accountants with
respect to the Company and the Operating Partnership as required by the
1933 Act and the 1933 Act Regulations; (ii) it is their opinion that the
financial statements and supporting schedules included in the Registration
Statement, or incorporated by reference therein, and covered by their
opinions therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
24
<PAGE>
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, including a reading of the latest available interim financial
statements of the Company and the Operating Partnership, a reading of the
minute books of the Company and the Operating Partnership, inquiries of
officials of the Company and the Operating Partnership responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing has come to their attention which
causes them to believe that (A) the unaudited financial statements of the
Company and the Operating Partnership included in the Registration
Statement, or incorporated by reference therein, do not comply as to form
in all material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations, or material modifications are
required for them to be presented in conformity with generally accepted
accounting principles, (B) the operating data and balance sheet data set
forth in the Prospectus under the caption "Selected Consolidated Financial
Data" were not determined on a basis substantially consistent with that
used in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement, (C) the pro forma financial information included or incorporated
by reference in the Registration Statement was not determined on a basis
substantially consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement or (D)
at a specified date not more than five days prior to the date of the
applicable Terms Agreement, there has been any change in the capital stock
or the number of partnership interests of the Company, the Operating
Partnership or their subsidiaries, as the case may be, or any increase in
the debt of the Company, the Operating Partnership or their subsidiaries or
any decrease in the net assets of the Company, the Operating Partnership or
their subsidiaries, as compared with the amounts shown in the most recent
consolidated balance sheet of the Company, the Operating Partnership and
their subsidiaries, included in the Registration Statement or incorporated
by reference therein, or, during the period from the date of the most
recent consolidated statement of operations included in the Registration
Statement or incorporated by reference therein to a specified date not more
than five days prior to the date of the applicable Terms Agreement, there
were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of the
Company, the Operating Partnership and their subsidiaries, except in all
instances for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur; and
(iv) in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out certain
specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the
Representatives, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Company, the Operating Partnership and their
subsidiaries identified in such letter.
(e) At Closing Time, the Representatives shall have received from
KPMG Peat Marwick LLP a letter, dated the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to Closing Time.
(f) At Closing Time, the Underwritten Securities, if such
Underwritten Securities are Debt Securities, shall be rated investment
grade by one or more nationally recognized statistical rating organizations
and the Operating Partnership shall have delivered to the Representatives a
letter, dated the Closing Time, from each such rating organization, or
other evidence satisfactory to the Representatives, confirming that such
Underwritten Securities have such ratings; and since the date of this
Agreement, there shall not have occurred a downgrading in the rating
assigned to such Underwritten Securities or any of the Operating
Partnership's other debt securities by any nationally recognized securities
rating organization, and no such securities rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of such Underwritten Securities or any of
the Operating Partnership's other debt securities.
25
<PAGE>
(g) At Closing Time and at each Date of Delivery, if any, counsel for
the Underwriters shall have been furnished with such documents and opinions
as they may require for the purpose of enabling them to pass upon the
issuance and sale of the applicable Underwritten Securities as contemplated
herein, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company or the Operating
Partnership, as the case may be, in connection with the issuance and sale
of the applicable Underwritten Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(h) At Closing Time, the Representatives shall have received a letter
agreement from DMI Partnership and from each director and executive officer
of the Company and the Operating Partnership, wherein DMI Partnership and
each such director or executive officer shall agree that during the period
of 90 days from the date of any Prospectus Supplement they will not,
without the prior written consent of Merrill Lynch, the Company and the
Operating Partnership (which consent, in the case of the Company and the
Operating Partnership, will be subject to the approval of the Company's
unaffiliated directors), directly or indirectly, sell, offer to sell, grant
any option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking on a
parity with any Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if such
Prospectus Supplement relates to Preferred Stock that is convertible into
or exchangeable for Common Stock, any Common Stock or Units or any security
convertible into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to transfers to members of the family of such
director or executive officer (or an entity for their benefit), or to the
granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other securities.
(i) In the event that the Underwriters exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the
Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the President
or a Vice President of the Company and the Operating Partnership and
of the chief financial or chief accounting officer of each such entity
confirming that their respective certificates delivered at Closing
Time pursuant to Section 5(c) hereof remain true and correct as of
such Date of Delivery.
(2) The favorable opinion of Bose McKinney & Evans, counsel for
the Company and the Operating Partnership, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(1) hereof.
(3) The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(2) hereof.
(4) A letter from KPMG Peat Marwick, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Representatives pursuant to Section 5(e) hereof, except that
the "specified date" in the letter furnished pursuant to this Section
5(i)(4) shall be a date not more than five days prior to such Date of
Delivery.
26
<PAGE>
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and the Operating Partnership,
at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company or the Operating Partnership by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (i) above
if such settlement is effected with the written consent of the indemnifying
party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever for which indemnification is provided under subsection
(i) above, to the extent that any such expense is not paid under (i) or
(ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Operating Partnership and each person, if any, who controls
the Company and the Operating Partnership within the meaning of Section 15 of
the 1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company or the Operating Partnership by such
Underwriter through Merrill Lynch expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own
27
<PAGE>
expense in the defense of any such action. If it so elects within a reasonable
time after receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and the Operating Partnership, on the one hand, and the Underwriters, on
the other hand, (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership, on the one hand,
and the Underwriters, on the other, from the offering of the Underwritten
Securities, or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault (as determined by a court of competent jurisdiction or a panel of
arbitration) of the Company and the Operating Partnership, on the one hand, and
the Underwriters, on the other, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages, and expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportions as the
total gross proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discount received by the
Underwriters. The relative fault of the Company and the Operating Partnership,
on the one hand, and the Underwriters, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company and the Operating Partnership, on the one
hand, or by the Underwriters, on the other, and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
The parties agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for any
obligations hereunder. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act, and
any director, officer, employee or affiliate of an Underwriter or such
controlling person, shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the 1933 Act, or any director,
officer, employee or affiliate of the Company or the Operating Partnership or
such controlling person, shall have the same rights to contribution as the
Company or the Operating Partnership.
28
<PAGE>
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
the applicable Terms Agreement, or contained in certificates of the officers of
the Company or the Operating Partnership submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of the
applicable Terms Agreement, or any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company or the
Operating Partnership and shall survive delivery of the Underwritten Securities
to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable Terms Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change,
affecting the Duke Group as a whole, in the condition, financial or otherwise,
or in the earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group or of any Property, whether or not arising in the
ordinary course of business; or (ii) if there has occurred any material adverse
change in the financial markets in the United States or internationally or any
outbreak of hostilities or escalation of existing hostilities or other calamity
or crisis the effect of which on the financial markets of the United States or
internationally is such as to make it, in the judgment of the Representatives,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities; or (iii) if trading in the Common Stock
has been suspended by the Commission or if trading generally on either the New
York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either Federal, New York or Indiana authorities;
(iv) if Preferred Stock is being offered and the rating assigned by any
nationally recognized statistical rating organization to any preferred shares of
the Company as of the date of the applicable Terms Agreement shall have been
lowered since such date or if any such rating organization shall have publicly
announced that it has placed any preferred shares or debt securities of the
Company on what is commonly termed a "watch list" for possible downgrading; or
(v) if the rating assigned by any nationally recognized statistical rating
organization to any long-term debt securities of the Operating Partnership as of
the date of the applicable Terms Agreement shall have been lowered since such
date or if any such rating organization shall have publicly announced that it
has placed any long-term debt securities of the Operating Partnership on what is
commonly termed a "watch list" for possible downgrading. As used in this
Section 9(a), the term "Prospectus" means the Prospectus in the form first used
to confirm sales of the Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so
long as any Underwriter owns any such Underwritten Securities purchased from the
Company or the Operating Partnership, as the case may be, pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(i)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 6 and 7 hereof, and the provisions of Sections
8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
each of the non-defaulting Underwriters named in such Terms Agreement shall
be obligated, severally and not jointly, to purchase the full amount
thereof in the
29
<PAGE>
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch & Co.,
Merrill Lynch, Pierce Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1201,
attention of Martin J. Cicco; notices to the Company and the Operating
Partnership shall be directed to any of them at 8888 Keystone Crossing,
Suite 1200, Indianapolis, Indiana, 46240, attention of Darell E. Zink, Jr.
SECTION 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the applicable Terms Agreement
or any provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
30
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Company and the Operating Partnership in accordance with
its terms.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
------------------------------------------
Name: Dennis D. Oklak
Title: Vice President
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
General Partner
By: /s/ Dennis D. Oklak
-------------------------------------
Name: Dennis D. Oklak
Title: Vice President
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------
Name: Martin J. Cicco
Title: Managing Director
31
<PAGE>
EXHIBIT A
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[NUMBER AND TITLE OF SECURITIES]
TERMS AGREEMENT
Dated: [________], 199[__]
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 (the "Representatives") understand that [Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell [__________]
of its [shares of common stock (the "Common Stock")] [shares of preferred stock
(the "Preferred Stock")] [shares of Preferred Stock represented by depositary
shares (the "Depositary Shares")] [Duke Realty Limited Partnership, an Indiana
limited partnership (the "Operating Partnership"), proposes to issue and sell
$[________] aggregate principal amount of its unsecured debt securities (the
"Debt Securities")] (such [Common Stock], [Preferred Stock] [Depositary Shares]
and [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 Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names,
and a proportionate share of Option Securities (as defined in the Underwriting
Agreement referred to below) to the extent any are purchased, at the purchase
price set forth below.
A-1
<PAGE>
[Number of Shares]
[Principal Amount]
Of Initial
Underwriter Underwritten Securities
----------- -----------------------
--------------
Total $
--------------
--------------
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any, from
, 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by
the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
A-2
<PAGE>
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
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 hereby 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.
A-3
<PAGE>
Please accept this offer no later than [_____] o'clock P.M. (New York City
time) on [_____] 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
[OTHER REPRESENTATIVES]
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
----------------------------------------------
For themselves and as Representatives of
the other named Underwriters.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:
---------------------------
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
---------------------------
General Partner
By:
---------------------------
Name:
Title:
A-4
<PAGE>
EXHIBIT B
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
Dated: [__________], 199[_]
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:
The undersigned hereby agrees to purchase from [Duke Realty
Investments, Inc. (the Company)] [Duke Realty Limited Partnership (the
"Operating Partnership")], and the [Company][Operating Partnership] agrees to
sell to the undersigned on [__________], 19[__] (the "Delivery Date"),
$[__________] amount of the [Company][Operating Partnership]'s [insert title of
security] (the "Securities"), offered by the [Company][Operating Partnership]'s
Prospectus dated [__________], 19[__], as supplemented by its Prospectus
Supplement dated [__________], 19[__], receipt of which is hereby acknowledged,
at a purchase price of $[_____ per share] [_____% of the principal amount
thereof, plus accrued interest from [__________], 19[__], to the Delivery Date],
and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the [Company][Operating
Partnership] or its order by [certified or official bank check in New York
Clearing House] [same day] funds at the office of [__________], on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the [Company][Operating Partnership] not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the [Company][Operating Partnership], on or
before [__________], 19[__], shall have sold to the Underwriters of the
Securities (the "Underwriters") such amount of the Securities as is to be sold
to them pursuant to the Terms Agreement dated [__________], 19[__] between the
[Company][Operating Partnership] and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Securities shall not be
affected by the failure of any purchaser to take delivery of and make payments
for Securities pursuant to other contracts similar to this contract. The
undersigned represents and warrants to you that its investment in the Securities
is not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which govern such investment.
B-1
<PAGE>
Promptly after completion of the sale to the Underwriters, the
[Company][Operating Partnership] will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinions of counsel for the [Company][Operating Partnership] delivered to the
Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the [Company][Operating Partnership] that all necessary corporate action for the
due execution and delivery of this contract and the payment for and purchase of
the Securities has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
[Company][Operating Partnership] and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the [Company][Operating Partnership] will not
accept Delayed Delivery Contracts for an aggregate amount of Securities in
excess of $[__________] and that the acceptance of any Delayed Delivery Contract
is in the [Company][Operating Partnership]'s sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the [Company][Operating Partnership], it is
requested that the [Company][Operating Partnership] sign the form of acceptance
on a copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
[Company][Operating Partnership] and the undersigned when such copy is so mailed
or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
----------------------------------------
(Name of Purchaser)
By:
-------------------------------------
(Title)
----------------------------------------
----------------------------------------
(Address)
Accepted as of the date first above written.
[DUKE REALTY INVESTMENTS, INC.
By:
-----------------------------
Name:
Title:]
[DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
By:
------------------------
Name:
Title:]
B-2
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please Print.)
Telephone No.
Name (including Area Code)
---- -------------------
B-3
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
7 3/8% NOTES DUE 2005
TERMS AGREEMENT
---------------
Dated: September 19, 1995
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 (the "Representatives") understand that Duke Realty Limited Partnership,
an Indiana limited partnership (the "Operating Partnership"), proposes to issue
and sell $100,000,000 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 Initial 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.
Principal Amount
of the
Underwriter Underwritten Securities
----------- -----------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated. . . . . 50,000,000
J. P. Morgan Securities Inc . . . . . . . . . . . . . . . . 40,000,000
First Chicago Capital Markets, Inc. . . . . . . . . . . . . 10,000,000
-----------
Total $ 100,000,000
-----------
-----------
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities: 7 3/8% Notes due 2005.
Currency: U.S. Dollars.
Principal amount to be issued: $100,000,000
Current ratings: Moody's Investors Service, Inc.: Baa3; Standard & Poor's
Corporation: BBB; Duff & Phelps: BBB.
Interest rate: 7 3/8%.
Interest payment dates: Each March 22 and September 22.
Stated maturity date: September 22, 2005.
Redemption or repayment provisions: The Underwritten Securities may be redeemed
at the option of the Operating Partnership at any time after September
22, 2002, in whole or in part, at a redemption price equal to the sum of
(i) the principal amount of the Underwritten Securities being redeemed
plus accrued interest thereon to the Redemption date and (ii) the make-
whole amount, if any, with respect to such Underwritten Securities.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.152%, plus accrued interest, if any, or
amortized original issue discount, if any, from the date of issuance.
Purchase price: 98.402%, plus accrued interest, if any, or amortized original
issue discount, if any, from the date of issuance (payable in same-day
funds).
Other terms: The Underwritten Securities shall be in the form of Exhibit B to
the Supplemental Indenture, dated as of September 19, 1995, between Duke
Realty Limited Partnership and The First National Bank of Chicago.
Closing date and location: September 22, 1995 at the offices of Rogers & Wells,
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 hereby 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.
<PAGE>
Please accept this offer no later than __________ o'clock _____ (New York
City time) on September 19, 1995 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
J.P. MORGAN SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------------------------
For themselves and as Representatives of the other
named Underwriters.
Name: Martin J. Cicco
Title: Managing Director
Accepted:
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
-------------------------------
Name: Dennis D. Oklak
Title: Vice President
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
General Partner
By: /s/ Dennis D. Oklak
-------------------------------
Name: Dennis D. Oklak
Title: Vice President
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
7 1/4% NOTES DUE 2002
TERMS AGREEMENT
---------------
Dated: September 19, 1995
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 (the "Representatives") understand that Duke Realty Limited Partnership,
an Indiana limited partnership (the "Operating Partnership"), proposes to issue
and sell $50,000,000 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 Initial 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.
Principal Amount
of the
Underwriter Underwritten Securities
----------- -----------------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated. . . . 30,000,000
J. P. Morgan Securities Inc.. . . . . . . . . . . . . . . 15,000,000
First Chicago Capital Markets, Inc. . . . . . . . . . . . 5,000,000
-------------
Total $ 50,000,000
-------------
-------------
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities: 7 1/4% Notes due 2002.
Currency: U.S. Dollars.
Principal amount to be issued: $50,000,000.
Current ratings: Moody's Investors Service, Inc.: Baa3; Standard & Poor's
Corporation: BBB; Duff & Phelps: BBB.
Interest rate: 7 1/4%.
Interest payment dates: Each March 22 and September 22.
Stated maturity date: September 22, 2002.
Redemption or repayment provisions: None.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.578%, plus accrued interest, if any, or
amortized original issue discount, if any, from the date of issuance.
Purchase price: 98.878%, plus accrued interest, if any, or amortized original
issue discount, 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 September 19, 1995, between Duke
Realty Limited Partnership and The First National Bank of Chicago.
Closing date and location: September 22, 1995 at the offices of Rogers & Wells,
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 hereby 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.
<PAGE>
Please accept this offer no later than __________ o'clock _____ (New York
City time) on September 19, 1995 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
J.P. MORGAN SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------------------------
For themselves and as Representatives of the other
named Underwriters.
Name: Martin J. Cicco
Title: Managing Director
Accepted:
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
-------------------------------
Name: Dennis D. Oklak
Title: Vice President
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
-----------------------------
General Partner
By: /s/ Dennis D. Oklak
-------------------------------
Name: Dennis D. Oklak
Title: Vice President
<PAGE>
EXHIBIT 4.1
-------------------------------------------------------------------------------
DUKE REALTY LIMITED PARTNERSHIP
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
____________________
Indenture
Dated as of September 19, 1995
____________________
Debt Securities
-------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Annual Service Charge . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Income Available for Debt Service. . . . . . . . . . . . . 3
Consolidated Net Income . . . . . . . . . . . . . . . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Communities. . . . . . . . . . . . . . . . . . . . . . . . . . 4
European Monetary System. . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Funds from Operations . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
i
<PAGE>
Government Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issuer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Issuer Request and Issuer Order . . . . . . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar. . . . . . . . . . . . . . . . 9
Significant Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Total Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Total Unencumbered Assets . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Undepreciated Real Estate Assets. . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States Person. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Unsecured Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Issuer. . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . . . . 14
ii
<PAGE>
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 15
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . 16
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . . 21
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . 28
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . 29
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 31
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . 33
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . . . . . 34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . . 36
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . . 37
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . 38
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 39
iii
<PAGE>
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . . 39
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . 39
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium,
if any, Interest and Additional Amounts . . . . . . . . . . 40
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . 40
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . 40
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . . 40
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . . . . 41
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . 41
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . 41
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . 42
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . 42
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 42
SECTION 603. Not Responsible for Recitals or Issuance of Securities. . . . 44
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . 44
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 44
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . . . . 44
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests 45
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . 45
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . . . . . 46
SECTION 610. Merger, Conversion, Consolidation or Succession to Business . 47
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders. . . . . . . . . 50
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 703. Reports by Issuer . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders. . . 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions . . . . 51
SECTION 802. Rights and Duties of Successor Corporation. . . . . . . . . . 51
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . . . . . 52
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders. . . . . . 52
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . 53
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . 54
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . 54
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . 55
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . . 55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and Additional
Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . 55
SECTION 1003. Money for Securities Payments to Be Held in Trust. . . . . . 57
SECTION 1004. Limitations on Incurrence of Debt. . . . . . . . . . . . . . 58
SECTION 1005. Maintenance of Total Unencumbered Assets . . . . . . . . . . 60
SECTION 1006. [This Section Intentionally Omitted] . . . . . . . . . . . . 60
SECTION 1007. Existence. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1008. Maintenance of Properties. . . . . . . . . . . . . . . . . . 60
SECTION 1009. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1010. Payment of Taxes and Other Claims. . . . . . . . . . . . . . 61
SECTION 1011. Provision of Financial Information . . . . . . . . . . . . . 61
SECTION 1012. Statement as to Compliance . . . . . . . . . . . . . . . . . 61
SECTION 1013. Additional Amounts . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1014. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . 63
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . 63
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. . . . . . 63
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . 63
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . 65
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . . . . . 65
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . 66
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . 66
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. . . . 66
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . 67
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . 67
SECTION 1302. Repayment of Securities. . . . . . . . . . . . . . . . . . . 67
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable. . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1305. Securities Repaid in Part. . . . . . . . . . . . . . . . . . 69
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect Defeasance
or Covenant Defeasance . . . . . . . . . . . . . . . . . . 70
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . 70
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . 70
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. . . . . . . 71
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. . . . . . . . . . . 72
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. . . . . . . . . . 73
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . 74
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . 74
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1506. Counting Votes and Recording Action of Meetings. . . . . . . 76
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A -- FORMS OF CERTIFICATION
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DUKE REALTY LIMITED PARTNERSHIP
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act")
and Indenture, dated as of September 19, 1995
Trust Indenture Act Section Indenture Section
Sec 310(a)(1) . . . . . . . . . . . . . . . 607
(a)(2). . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . 607, 608
Sec. 312(a). . . . . . . . . . . . . . . . . 704
Sec. 312(c). . . . . . . . . . . . . . . . . 701
Sec. 313(a). . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . 702
Sec. 314(a). . . . . . . . . . . . . . . . . 1011
(a)(4). . . . . . . . . . . . . . . . . 1012
(c)(1). . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . 102
Sec. 315(b). . . . . . . . . . . . . . . . . 601
Sec. 316(a) (last sentence). . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . 508
Sec. 317(a)(1) . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . 504
Sec. 318(a). . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . 111
____________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
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INDENTURE, dated as of September 19, 1995, between DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership (the "Issuer"), having its principal
offices at 8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240 and
The First National Bank of Chicago, a national banking association organized
under the laws of the United States of America, as Trustee hereunder (the
"Trustee"), having its Corporate Trust Office at 14 Wall Street, Eighth Floor -
Window 2, New York, New York 10005.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its
lawful purposes debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal
amount, to bear interest at the rates or formulas, to mature at such times
and to have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper,"
as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
<PAGE>
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Issuer in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the maximum amount
which is expensed in any 12-month period for interest on Debt.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the General Partner
or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
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"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at anytime after execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Issuer and its Subsidiaries plus amounts which
have been deducted for (a) interest on Debt of the Issuer and its Subsidiaries,
(b) provision for taxes of the Issuer and its Subsidiaries based on income, (c)
amortization of debt discount, (d) depreciation and amortization, (e) the
effect of any noncash charge resulting from a change in accounting principles
in determining Consolidated Net Income for such period, (f) amortization of
deferred charges, and (g) provisions for or realized losses on properties and
(ii) less amounts which have been included for gains on properties.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 14 Wall Street,
Eighth Floor - Window 2, New York, New York 10005.
"corporation" includes corporations, associations, partnerships,
companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Issuer or any Subsidiary means any indebtedness of the
Issuer or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge,
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lien, charge, encumbrance or any security interest existing on property owned by
the Issuer or any Subsidiary, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property except any such balance that constitutes an accrued expense or trade
payable or (iv) any lease of property by the Issuer or any Subsidiary as lessee
which is reflected on the Issuer's consolidated balance sheet as a capitalized
lease in accordance with GAAP, in the case of items of indebtedness under (i)
through (iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on the Issuer's consolidated balance sheet
in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by the Issuer or any Subsidiary to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of collection
in the ordinary course of business), indebtedness of another person (other than
the Issuer or any Subsidiary) (it being understood that Debt shall be deemed to
be incurred by the Issuer and it Subsidiaries on a consolidated basis whenever
the Issuer and its Subsidiaries on a consolidated basis shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Funds from Operations" for any period means the Consolidated Net Income
of the Issuer and its Subsidiaries for such period without giving effect to
depreciation and amortization, gains or losses from extraordinary items, gains
or losses on sales of real estate, gains or losses on investments in marketable
securities and any provision/benefit for income taxes for such period,
4
<PAGE>
plus the allocable portion, based on the Issuer's ownership interest, of funds
from operations of unconsolidated joint ventures, all determined on a
consistent basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"General Partner" means Duke Realty Investments, Inc., as general
partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
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"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1013,
includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by the General Partner by its
Chairman of the Board, the President or a Vice President, and by its Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the General
Partner, and delivered to the Trustee.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the General
Partner, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or who may be an employee of or other counsel for the
Issuer and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
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"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated
in trust by the Issuer (if the Issuer shall act as its own Paying Agent)
for the Holders of such Securities and any coupons appertaining thereto,
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Issuer has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Issuer;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Issuer, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in
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determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Issuer or any other obligor upon the Securities or
any Affiliate of the Issuer or of such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
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"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Issuer.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation, partnership or limited liability
company a majority of the outstanding voting stock, partnership interests or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Issuer or by one or more other Subsidiaries of
the Issuer. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, or trustees, as the case may
be, whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP (but
excluding intangibles and accounts receivable).
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"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an encumbrance and (ii) all other assets of the
Issuer and its Subsidiaries not subject to an encumbrance determined in
accordance with GAAP (but excluding intangibles and accounts receivable).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean only the Trustee with respect
to Securities of that series.
"Undepreciated Real Estate Assets" means as of any date the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary which is not
secured by any mortgage, lien, charge, pledge or security interest of any kind
upon any of the properties owned by the Issuer or any of its Subsidiaries.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Issuer to the Trustee to take any action under any provision
of this Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this
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Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1012) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the General Partner may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
General Partner stating that the information as to such factual matters is in
the possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be,
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may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Issuer. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Issuer may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Issuer shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Issuer may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination
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of Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Issuer shall have no obligation to
do so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at 14 Wall Street, Eighth Floor -
Window 2, New York, New York 10005; Attention: Corporate Trust
Administration,
(2) the Issuer by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the
Issuer addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Issuer.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Issuer or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the
manner herein
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prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in New York City and
in such other city or cities as may be specified in such Securities on a
Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
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SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the laws of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity, PROVIDED that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Issuer may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
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The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[TRUSTEE]
as Trustee
By
----------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Issuer Order to be delivered to the Trustee pursuant to Section 303 or
304. Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Issuer with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
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Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable, each of
which, if so provided, may be determined from time to time by the Issuer with
respect to unissued Securities of the series when issued from time to time:
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of maturity thereof;
(4) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series shall be payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
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(6) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
exchange or conversion and notices or demands to or upon the Issuer in
respect of the Securities of the series and this Indenture may be served;
(7) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at
the option of the Issuer, if the Issuer is to have the option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or
prices at which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of
the series shall be issuable and, if other than denominations of
$5,000 and any integral multiple thereof, the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(10) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(12) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(13) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
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(14) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be
payable, at the election of the Issuer or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which, and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(15) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to Securities
of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and vice
versa (if permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in temporary global
form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor
of any authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depositary for such
series;
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(19) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
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(20) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(21) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(23) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1013 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as
a change of control of the Issuer), (i) the possible effects of such
provisions on the market price of the Issuer's or the General Partner's
securities or in deterring certain mergers, tender offers or other
takeover attempts, and the intention of the Issuer to comply with the
requirements of Rule 14e-1 under the Exchange Act and any other
applicable securities laws in connection with such provsions; (ii)
whether the occurrence of the specified events may give rise to cross-
defaults on other indebtedness such that payment on such Securities may
be effectively subordinated; and (iii) the existence of any limitation
on the Issuer's financial or legal ability to repurchase such Securities
upon the occurrence of such an event (or, if true, the lack of assurance
that such a repurchase can be effected) and the impact if any, under
the Indenture of such a failure, including whether and under what
circumstances such a failure may constitute an Event of Default; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the General Partner and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of
$5,000 and any integral multiple thereof.
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SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by the General Partner by its Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the General Partner
shall bind the Issuer, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer Order
shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or Cedel, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series shall
so permit, such Issuer Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
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(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Issuer to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Issuer
in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Issuer, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, no Event of Default with respect to
any of the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has
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been duly authenticated and delivered hereunder and is entitled to the benefits
of this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Issuer, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any nonmatured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company
("DTC"). If any such temporary Security is issued in global form, then such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
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Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
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applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Issuer in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby appointed "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
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Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Issuer in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Issuer and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for
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definitive Securities, a global Security may be transferred, in whole but not in
part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor
to DTC for such global Security selected or approved by the Issuer or to a
nominee of such successor to DTC. If at any time DTC notifies the Issuer that
it is unwilling or unable to continue as depositary for the applicable global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") if so required by applicable law or regulation, the Issuer shall appoint a
successor depositary with respect to such global Security or Securities. If (x)
a successor depositary for such global Security or Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an Event of Default
has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depositary for such
global Security or Securities or (z) the Issuer, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then the
Issuer shall execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such global Security
or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary as shall be
specified in the Issuer Order with respect thereto to the Trustee, as the
Issuer's agent for such purpose; PROVIDED, HOWEVER, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and PROVIDED FURTHER that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Issuer or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Issuer, together with, in proper cases, such
security or indemnity as may be required by the Issuer or the Trustee to save
each of them or any agent of either of them harmless, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Issuer and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless,
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then, in the absence of notice to the Issuer or the Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Issuer shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Issuer, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Issuer maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of interest on any Registered Security may at the Issuer's option be
paid by (i) mailing a check for such interest, payable to or upon
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the written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuer shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time the Issuer
shall deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as provided in this clause.
Thereupon the
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Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date and,
in the name and at the expense of the Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it appears in the
Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense
of the Issuer, cause a similar notice to be published at least once in an
Authorized Newspaper in each place of payment, but such publications
shall not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(2) The Issuer may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Issuer to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee shall
be affected by notice to the contrary.
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Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
None of the Issuer, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Issuer, the Trustee, or any agent of the Issuer
or the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Issuer has not issued and sold, and
all Securities so delivered shall be promptly cancelled by the Trustee. If the
Issuer shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Issuer, unless by an Issuer Order the
Issuer directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Issuer Request cease to be of further effect with respect to any
series of Securities specified in such Issuer Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1013), and the Trustee, upon receipt of an
Issuer Order, and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Issuer, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount in the currency
or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable,
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sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest, and any Additional Amounts with respect thereto, to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Issuer to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
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(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, evidence of recourse indebtedness
of the Issuer, or under any mortgage, indenture or other instrument
of the Issuer (including a default with respect to Securities of any
series other than that series) under which there may be issued or by
which there may be secured any recourse indebtedness of the Issuer (or
by any Subsidiary, the repayment of which the Issuer has guaranteed or
for which the Issuer is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate
principal amount exceeding $5,000,000 of such indebtedness when due
and payable after the expiration of any applicable grace period with
respect thereto and shall have resulted in such indebtedness in an
aggregate principal amount exceeding $5,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given, by
registered or certified mail, to the Issuer by the Trustee or to the
Issuer and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Issuer to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(6) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
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(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Issuer or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons,
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(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if
any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Issuer covenants that if:
(1) default is made in the payment of any installment of interest
or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law
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out of the property of the Issuer or any other obligor upon such Securities of
such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Securities or the property of the
Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and coupons for principal (and
premium, if any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer.
SECTION LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law
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to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
or any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and PROVIDED FURTHER that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order (other
than delivery of any Security,
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together with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Trustees may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably satisfactory
to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Issuer, personally or by agent or attorney following reasonable notice to
the Issuer;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Issuer, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Issuer of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Issuer, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Issuer with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other
agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Issuer under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Issuer. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
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(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Issuer, by or pursuant to a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Issuer. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Issuer or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Issuer shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Issuer and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
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conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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PROVIDED such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Issuer and shall at all times be
a bank or trust company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any State or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Issuer. The Trustee for
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any series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[TRUSTEE]
as Trustee
By:
----------------------------,
as Authenticating Agent
By:-----------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Securities or coupons, by receiving and holding the same, agrees with the
Issuer and the Trustee that neither the Issuer nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such
May 15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY ISSUER. The Issuer will:
(1) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(2) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
Section 1011 and paragraph (1) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Registered
Securities of such series as of such Regular Record Date, or if there is no
Regular Record Date for interest for such series of Securities, semiannually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
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PROVIDED, HOWEVER, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Issuer may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation, provided that in any such case, (1)
either the Issuer shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States or a State thereof and such successor corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and any interest (including all Additional Amounts, if any, payable pursuant to
Section 1013) on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Issuer by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Issuer or any Subsidiary as a result thereof as having been
incurred by the Issuer or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
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SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Issuer, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer and
the assumption by any such successor of the covenants of the Issuer
herein and in the Securities contained; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Issuer; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for
a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those
series of Securities to which such additional Events of Default apply to
waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in
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uncertificated form, PROVIDED that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, PROVIDED such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer, when authorized by
or pursuant to a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities and any
related coupons under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) 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 Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or
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change any obligation of the Issuer to pay Additional Amounts pursuant to
Section 1013 (except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, 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, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1014, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes;
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and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1013 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Issuer shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Issuer will
maintain: (A) in the Borough of Manhattan, New York City, an office or agency
where any Registered Securities of that series may be presented or surrendered
for payment or conversion, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for
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exchange, where notices and demands to or upon the Issuer in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment or conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1013) or conversion; PROVIDED, HOWEVER, that if the Securities of that series
are listed on the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Issuer
will maintain a Paying Agent for the Securities of that series in Luxembourg or
any other required city located outside the United States, as the case may be,
so long as the Securities of that series are listed on such exchange; and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Issuer in respect of the Securities of
that series and this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Issuer shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1013) or conversion at the
offices specified in the Security, in London, England, and the Issuer hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Issuer hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1013) shall be made at the office of the designated agent of
the Issuer's Paying Agent in the Borough of Manhattan, New York City, if (but
only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Issuer in accordance
with this Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Issuer may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such
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purposes, and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Issuer will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the Issuer
hereby designates as a Place of Payment for each series of Securities the office
or agency of the Issuer in the Borough of Manhattan, New York City, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Issuer shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium, if any), or interest on or Additional Amounts
in respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Issuer shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities or Additional Amounts in trust
for the benefit of the
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Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest or Additional Amounts; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request or (if then held by the Issuer) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuer cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
SECTION 1004. LIMITATIONS ON INCURRENCE OF DEBT. (a) The Issuer will
not, and will not permit any Subsidiary to, incur any Debt, other than
intercompany Debt (representing Debt to which the only parties are the General
Partner, the Issuer and/or any of their Subsidiaries (but only so long as such
Debt is held solely by any of the General Partner, the Issuer and any
Subsidiary) that is subordinate in right of payment to the Securities) if,
immediately after giving effect to the incurrence of such additional Debt, the
aggregate principal amount of all outstanding Debt of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 55% of the sum of (i) the Total Assets as of the end of the
calendar quarter covered in the Issuer's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Debt and (ii)
any increase in the Total Assets since the end of such quarter including,
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without limitation, any increase in Total Assets resulting from the incurrence
of such additional Debt (such increase together with the Total Assets being
referred to as the "Adjusted Total Assets");
(b) In addition to the limitation set forth in subsection (a) of this
Section 1004, the Issuer will not, and will not permit any Subsidiary to, incur
any Debt if, for the period consisting of the four consecutive fiscal quarters
most recently ended prior to the date on which such additional Debt is to be
incurred, the ratio of Consolidated Income Available for Debt Service to the
Annual Service Charge shall have been less than 2.0 to 1, on a pro forma
basis after giving effect to the incurrence of such Debt and to the application
of the proceeds therefrom, and calculated on the assumption that (i) such Debt
and any other Debt incurred by the Issuer or its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of such period,
(ii) the repayment or retirement of any other Debt by the Issuer or its
Subsidiaries since the first day of such four-quarter period had been incurred,
repaid or retained at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period),
(iii) any income earned as a result of any increase in Adjusted Total Assets
since the end of such four quarter period had been earned, on an annualized
basis, for such period, and (iv) in the case of any acquisition or disposition
by the Issuer or any Subsidiary of any asset or group of assets since the first
day of such four-quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or disposition or
any related repayment of Debt had occurred as of the first day of such period
with the appropriate adjustments with respect to such acquisition or disposition
being included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 1004, the Issuer will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the property of the
Issuer or any Subsidiary (the "Secured Debt"), whether owned at the date hereof
or hereafter acquired, if, immediately after giving effect to the incurrence of
such additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is
greater than 40% of the Adjusted Total Assets.
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(d) For purposes of this Section 1004, Debt shall be deemed to be
"incurred" by the Issuer or its Subsidiaries on a consolidated basis whenever
the Issuer and its Subsidiaries on a consolidated basis shall create, assume,
guarantee or otherwise become liable in respect thereof.
SECTION 1005. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Issuer will
maintain Total Unencumbered Assets of not less than 185% of the aggregate
outstanding principal amount of the Unsecured Debt of the Issuer.
SECTION 1006. [This Section Intentionally Omitted].
SECTION 1007. EXISTENCE. Subject to Article Eight, the Issuer will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; PROVIDED, HOWEVER, that the Issuer
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1008. MAINTENANCE OF PROPERTIES. The Issuer will cause all of
its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that nothing in this Section shall
prevent the Issuer or any Subsidiary from selling or otherwise disposing for
value its properties in the ordinary course of its business.
SECTION 1009. INSURANCE. The Issuer will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full
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insurable value with insurers of recognized responsibility and having a rating
of at least A:VIII in Best's Key Rating Guide.
SECTION 1010. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; PROVIDED, HOWEVER, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1011. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Issuer is subject to Section 13 or 15(d) of the Exchange Act and for so long as
any Securities are outstanding, the Issuer will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Issuer were so subject, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by which the Issuer
would have been required so to file such documents if the Issuer were so
subject.
The Issuer will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Issuer would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Issuer were subject to such Sections and
(y) if filing such documents by the Issuer with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 1012. STATEMENT AS TO COMPLIANCE. The Issuer will deliver to
the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer of the General Partner as to his or her knowledge
of the Issuer's compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying such noncompliance
and the nature and status thereof. For purposes of this Section 1012, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1013. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 502(1), the
payment of the principal of or any premium or interest on, or in respect
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of, any Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to Section 301 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Issuer
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Issuer's
not furnishing such an Officers' Certificate.
SECTION 1014. WAIVER OF CERTAIN COVENANTS. The Issuer may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1011, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less
than all of the Securities of any series, the Issuer shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date with the same
terms not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
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Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any, or for
conversion,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Issuer, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Issuer, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
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(11) if applicable, that a Holder of Securities who desires
to convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business Day
prior to any Redemption Date, the Issuer shall deposit with the Trustee or with
a Paying Agent (or, if the Issuer is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED FURTHER
that, except as otherwise provided with respect to Securities convertible into
Common Stock or Preferred Stock, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Issuer and
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the Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which
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have been redeemed either at the election of the Issuer pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities, or which have otherwise been acquired by the Issuer;
PROVIDED that such Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the applicable Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Issuer covenants that at least one Business Day prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; PROVIDED, HOWEVER, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such
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Security for repayment in accordance with such provisions, together with all
coupons, if any, appertaining thereto maturing after the Repayment Date, the
principal amount of such Security so to be repaid shall be paid by the Issuer,
together with accrued interest, if any, to the Repayment Date; PROVIDED,
HOWEVER, that coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of such coupons;
and PROVIDED FURTHER that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Issuer shall default
in the payment thereof) to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Issuer, a new Registered
Security or Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which
is not to be repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of
the above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Issuer's obligations with respect to
such Securities under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1013, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Issuer may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be released from its obligations under
Sections 1004 to 1011, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any
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coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1004
to 1011, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Issuer may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(3) a combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and interest, if any,
on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Issuer is a party or by
which it is bound.
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(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture, there has been
a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Issuer's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Issuer, with
respect to the trust funds representing such deposit or by the Trustee for
such trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Issuer in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee
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may determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
market exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
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SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Issuer, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, New York City, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; PROVIDED, HOWEVER,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state
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expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the
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holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Issuer
or by Holders of Securities as provided in Section 1502(b), in which case the
Issuer or the Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
* * * *
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This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
as General Partner
By: /s/ Dennis D. Oklak
-----------------------------
Name: Dennis D. Oklak
Title: Vice President
Attest:
/s/ Dayle M. Eby
-----------------------------------
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: /s/ Janice Ott Rotunno
-------------------------------
Name: Janice Ott Rotunno
Title: Assistant Vice President
Attest:
/s/ Barbara G. Grosse
-----------------------------------
Title: Assistant Vice President
and Assistant Secretary
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STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the ____ day of _________ 1995, 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 the Board of Trustees.
[Notarial Seal]
--------------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the ____ day of ____________ 1995, 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
79
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Duke Realty Investments, Inc. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not
A-1
<PAGE>
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to U.S.$ _______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
-------------------------------------
(Authorized Signator)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Duke Realty Investments,
Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
A-3
<PAGE>
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,]
as Operator of the Euroclear System [Cedel S.A.]
By:
----------------------------------------
A-4
<PAGE>
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
DUKE REALTY LIMITED PARTNERSHIP
ISSUER
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
----------------------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 19, 1995
----------------------
$50,000,000 7 1/4% NOTES DUE 2002
$100,000,000 7 3/8% NOTES DUE 2005
----------------------
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
THE FIRST NATIONAL BANK OF CHICAGO
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of September 19, 1995, 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 $50,000,000, entitled "Duke Realty Limited Partnership 7 1/4% Notes due
2002" (the "2002 Notes"); (ii) create a series of debt securities, in an
aggregate principal amount not to exceed $100,000,000, entitled "Duke Realty
Limited Partnership 7 3/8% Notes due 2005" (the "2005 Notes, and together with
the 2002 Notes, the "Notes"); and (iii) 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 its Finance
Committee, 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.
2
<PAGE>
"GLOBAL NOTE" means a single fully-registered global note in book-
entry form, without coupons, substantially in the form of Exhibit A or Exhibit B
attached hereto.
"INDENTURE" means the Original Indenture as supplemented by this First
Supplemental Indenture.
"MAKE-WHOLE AMOUNT" means, in connection with any optional redemption
or accelerated payment of any 2005 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 2005
Notes being redeemed or paid.
"NOTES" means the 2002 Notes together with the 2005 Notes.
"2002 NOTES" means the Issuer's 7 1/4% Notes due September 22, 2002, a
form of which is attached hereto as Exhibit A.
"2005 NOTES" means the Issuer's 7 3/8% Notes due September 22, 2005, a
form of which is attached hereto as Exhibit B.
"REDEMPTION PRICE" means the sum of (i) the principal amount of the
2005 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
3
<PAGE>
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 each of the 2002 Notes
and the 2005 Notes as separate series of its debt securities issued pursuant to
the Indenture. The 2002 Notes shall be issued in an aggregate principal amount
not to exceed $50,000,000. The 2005 Notes shall be issued in an aggregate
principal amount not to exceed $100,000,000.
SECTION 1.03 FORM OF THE DEBT SECURITIES. Each series of 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 2002 Notes shall be
in the form of Exhibit A attached hereto and the 2005 Notes shall be in the form
of Exhibit B 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 Notes 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 First Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) OPTIONAL REDEMPTION. The 2002 Notes may not be redeemed by the Issuer
prior to the maturity date of such Notes. The Issuer may redeem the 2005 Notes
at any time after September 22, 2002 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 2005 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 2005 Notes will be to receive
payment of the Redemption Price.
Notice of any optional redemption of any 2005 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 2005 Notes held by such Holder to be redeemed.
If less than all the 2005 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 2005 Notes to be
4
<PAGE>
redeemed and their Redemption Date. The Trustee shall select, in such manner as
it shall deem fair and appropriate, 2005 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.
(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
5
<PAGE>
required to be part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 3.06 COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, and each of such counterparts shall for all
purposes be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
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: Vice President
Attest:
/s/ Dayle M. Eby
-------------------------
Name: Dayle M. Eby
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By: /s/ Janice Ott Rotunno
-------------------------------------
Name: Janice Ott Rotunno
Title: Assistant Vice President
Attest:
/s/ Barbara G. Grosse
-------------------------
Name: Barbara G. Grosse
Title: Assistant Vice President
and Assistant Secretary
7
<PAGE>
STATE OF ___________ )
) ss:
COUNTY OF __________ )
On the ___________ day of __________ 1995, 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
8
<PAGE>
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the __________ day of __________ 1995, 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
9
<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. 264414AN3 $50,000,000
--------
DUKE REALTY LIMITED PARTNERSHIP
71/4% NOTES DUE 2002
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 Fifty Million Dollars on September 22,
2002 (the "Maturity Date"), and to pay interest thereon from September 22, 1995
(or from the most recent interest payment date to which interest has been paid
or duly provided for), semi-annually on March 22 and September 22 of each year
(each, an "Interest Payment Date"), commencing on March 22, 1996, and on the
Maturity Date, at the rate of 71/4% 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
A-1
<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 September 22, 1995, 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-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated: September 22, 1995
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
A-3
<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-4
<PAGE>
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
71/4% NOTES DUE 2002
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 (herein called
the "Indenture"), duly executed and delivered by the Issuer to The First
National Bank of Chicago, as Trustee (herein 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 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 71/4% Notes due
September 22, 2002 of the Issuer, limited in aggregate principal amount to
$50,000,000.
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 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 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
A-5
<PAGE>
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.
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.
A-6
<PAGE>
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-7
<PAGE>
EXHIBIT B
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. 264414AP8 $100,000,000
---------
DUKE REALTY LIMITED PARTNERSHIP
73/8% NOTES DUE 2005
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 Million Dollars on
September 22, 2005 (the "Maturity Date"), and to pay interest thereon from
September 22, 1995 (or from the most recent interest payment date to which
interest has been paid or duly provided for), semi-annually on March 22 and
September 22 of each year (each, an "Interest Payment Date"), commencing on
March 22, 1996, and on the Maturity Date, at the rate of 73/8% 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
B-1
<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 September 22, 1995 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.
B-2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its authorized officers.
Dated: September 22, 1995
DUKE REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE REALTY INVESTMENTS, INC.,
as General Partner
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
B-3
<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
B-4
<PAGE>
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
7 3/8% NOTES DUE 2005
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 (herein called
the "Indenture"), duly executed and delivered by the Issuer to The First
National Bank of Chicago, as Trustee (herein 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 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 3/8% Notes due
September 22, 2005 of the Issuer, limited in aggregate principal amount to
$100,000,000.
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 after September 22,
2002 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
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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.
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
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<PAGE>
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.
B-7
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46204
(317) 684-5000
September 19, 1995
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. 33-61361 (the "Registration
Statement"), on Form S-3 under the Securities Act of 1933, as amended. The
Partnership has filed a prospectus supplement (the "Prospectus Supplement")
relating to the offering of up to $50,000,000 in aggregate principal amount
of 7 1/4% Notes due September 22, 2002 (the "2002 Notes") and $100,000,000 in
aggregate principal amount of 7 3/8% Notes due September 22, 2005 (the "2005
Notes" and, together with the 2002 Notes, the "Notes"). This opinion letter
is supplemental to the opinion letter filed as Exhibit 5 to the Registration
Statement, as amended.
We have examined photostatic copies of the Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws of Duke Realty Investments, Inc.,
the sole general partner of the Partnership (the "Company"), and of the
Partnership's Amended and Restated Agreement of Limited Partnership, the
indenture and supplemental indenture pursuant to which the Notes are to be
issued (together, the "Indenture") and such other documents and instruments as
we have deemed necessary to enable us to render the opinion set forth below.
We have assumed the conformity to the originals of all documents submitted to us
as photostatic copies, the authenticity of the originals of such documents, and
the genuineness of all signatures appearing thereon. As to various questions of
fact material to our opinions, we have relied upon certificates of, or
communications with, officers of the Company as general partner of the
Partnership.
<PAGE>
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
September 19, 1995
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 incorporation of this opinion by reference as an exhibit to
the Registration Statement.
Very truly yours,
BOSE McKINNEY & EVANS
