-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ODF4lT3NJLoqaAPAiqO5ar/pSmfLto66xgt8sERPVDqQ8f2K+ZTfhoSmAeCkv3/D +K1h98w+Z3Hrn+dmWqjaVA== 0000912057-01-528093.txt : 20010814 0000912057-01-528093.hdr.sgml : 20010814 ACCESSION NUMBER: 0000912057-01-528093 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20010608 ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20010813 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE REALTY LIMITED PARTNERSHIP/ CENTRAL INDEX KEY: 0001003410 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 351898425 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-20625 FILM NUMBER: 1706670 BUSINESS ADDRESS: STREET 1: 600 EAST 96TH STREET STREET 2: SUITE 100 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 BUSINESS PHONE: 3178086000 MAIL ADDRESS: STREET 1: 600 EAST 96TH STREET STREET 2: SUITE 100 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 FORMER COMPANY: FORMER CONFORMED NAME: DUKE REALTY LIMITED PARTNERSHIP DATE OF NAME CHANGE: 19951114 FORMER COMPANY: FORMER CONFORMED NAME: DUKE WEEKS REALTY LIMITED PARTNERSHIP DATE OF NAME CHANGE: 19990716 8-K 1 a2056569z8-k.txt FORM 8-K ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): June 8, 2001 DUKE REALTY LIMITED PARTNERSHIP (Exact name of registrant as specified in its charter) Indiana 0-20625 35-1898425 (State or jurisdiction of (Commission (I.R.S. Employer incorporation or organization) File Number) Identification No.) 600 EAST 96TH STREET, SUITE 100 INDIANAPOLIS, INDIANA 46240 (Address of principal executive offices) (Zip Code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 808-6000 Not applicable (Former name or former address, if changed since last report) ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS The following exhibits are filed with this report pursuant to Regulation S-K Item 601(b) in lieu of filing the otherwise required exhibits to the registration statement on Form S-3 of Duke Realty Corporation and Duke Realty Limited Partnership, file no. 333-37920, under the Securities Act of 1933, as amended (the "Registration Statement"), and which, as this Form 8-K filing is incorporated by reference in the Registration Statement, is set forth in full in the Registration Statement.
Exhibit Number Exhibit - ------- ------- 1 Distribution Agreement dated as of June 8, 2001. 4 Tenth Supplemental Indenture dated as of June 8, 2001 between Duke Realty Limited Partnership and Bank One Trust Company, N.A., with attached exhibits of form of Fixed Rate Note and form of Floating Rate Note. 5 Opinion of Bose McKinney & Evans LLP, including consent. 8 Tax Opinion of Bose McKinney & Evans LLP, including consent.
SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DUKE REALTY LIMITED PARTNERSHIP By: DUKE REALTY CORPORATION General Partner Date: August 10, 2001 By: /s/ Matthew A. Cohoat -------------------------------- Matthew A. Cohoat Senior Vice President -2- EX-1 3 a2056569zex-1.txt EXHIBIT 1 DUKE-WEEKS REALTY LIMITED PARTNERSHIP MEDIUM-TERM NOTES DUE NINE MONTHS OR MORE FROM DATE OF ISSUE DISTRIBUTION AGREEMENT June 8, 2001 MERRILL LYNCH & CO. Merrill Lynch, Pierce, Fenner & Smith Incorporated World Financial Center North Tower, 10th Floor New York, New York 10281-1310 BANC ONE CAPITAL MARKETS, INC. One First National Plaza, Suite 0307 Chicago, Illinois 60670 CREDIT SUISSE FIRST BOSTON CORPORATION 11 Madison Avenue New York, New York 10010 DEUTSCHE BANC ALEX. BROWN INC. 31 West 52nd Street New York, New York 10019 GOLDMAN, SACHS & CO. 85 Broad Street New York, New York 10004 J.P. MORGAN SECURITIES INC. 60 Wall Street New York, New York 10260 UBS WARBURG LLC 299 Park Avenue New York, New York 10171 Dear Sirs: Duke-Weeks Realty Limited Partnership, an Indiana limited partnership (the "Operating Partnership"), confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Bank One Capital Markets, Inc., Credit Suisse First Boston Corporation, Deutsche Banc Alex. Brown Inc., Goldman, Sachs & Co., J.P. Morgan Securities Inc. and UBS Warburg LLC (each, an "Agent", and collectively, the "Agents") with respect to the issue and sale by the Operating Partnership of its Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes"). The Notes are to be issued pursuant to an Indenture, dated as of September 19, 1995, as amended or modified from time to time (the "Indenture"), between the Operating Partnership and Bank One Trust Company, N.A., as trustee (the "Trustee"). As of the date hereof, the Operating Partnership has authorized the issuance and sale of up to U.S. $150,000,000 aggregate initial offering price of Notes (or its equivalent, based upon the exchange rate on the applicable trade date in such foreign or composite currencies as the Operating Partnership shall designate at the time of issuance) to or through the Agents pursuant to the terms of this Agreement. It is understood, however, that the Operating Partnership may from time to time authorize the issuance of additional Notes and that such additional Notes may be sold to or through the Agents pursuant to the terms of this Agreement, all as though the issuance of such Notes were authorized as of the date hereof. This Agreement provides both for the sale of Notes by the Operating Partnership to one or more Agents as principal for resale to investors and other purchasers and for the sale of Notes by the Operating Partnership directly to investors (as may from time to time be agreed to by the Operating Partnership and the applicable Agent), in which case the applicable Agent will act as an agent of the Operating Partnership in soliciting offers for the purchase of Notes. Duke-Weeks Realty Corporation (the "Company") and the Operating Partnership have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-37920) for the registration of debt securities of the Operating Partnership, including the Notes, and of common stock, preferred stock and depositary shares of the Company under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance with Rule 415 of the rules and regulations of the Commission under the 1933 Act (the "1933 Act Regulations"). Such registration statement has been declared effective by the Commission and the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the Operating Partnership has filed such post-effective amendments thereto as may be required prior to its acceptance of any offer for the purchase of Notes and each such post-effective amendment has been declared effective by the Commission. Such registration statement (as so amended, if applicable) is referred to herein as the "Registration Statement"; and the final prospectus and all applicable amendments or supplements thereto (including the final prospectus supplement and pricing supplement relating to the offering of Notes), in the form first furnished to the applicable Agent(s) for use in confirming sales of Notes, are collectively referred to herein as the "Prospectus"; provided, however, that all references to the "Registration Statement" and the "Prospectus" shall also be deemed to include all documents incorporated therein by reference pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to any acceptance by the Operating Partnership of an offer for the purchase of Notes; provided, further, that if the Operating Partnership files a registration statement with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"), 2 then, after such filing, all references to the "Registration Statement" shall also be deemed to include the Rule 462(b) Registration Statement. A "preliminary prospectus" shall be deemed to refer to any prospectus used before the Registration Statement became effective and any prospectus furnished by the Operating Partnership after the registration statement became effective and before any acceptance by the Operating Partnership of an offer for the purchase of Notes which omitted information to be included upon pricing in a form of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations. For purposes of this Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this Agreement to financial statements and schedules and other information which is "disclosed", "contained," "included" or "stated" (or other references of like import) in the Registration Statement, Prospectus or preliminary prospectus shall be deemed to include all such financial statements and schedules and other information which is incorporated by reference in the Registration Statement, Prospectus or preliminary prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, Prospectus or preliminary prospectus shall be deemed to include the filing of any document under the 1934 Act which is incorporated by reference in the Registration Statement, Prospectus or preliminary prospectus, as the case may be. The term "subsidiary" means a corporation, partnership or limited liability company a majority of the outstanding voting stock or partnership or limited liability company interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Operating Partnership or the Company, as the case may be, or by one or more other subsidiaries of the Operating Partnership or the Company. The term "Duke Group" means the Company, the Operating Partnership and any subsidiary (a "Property Partnership") which directly or indirectly owns any real property (a "Property"). SECTION 1. APPOINTMENT AS AGENT. (a) APPOINTMENT. Subject to the terms and conditions stated herein and subject to the reservation by the Operating Partnership of the right to sell Notes directly on its own behalf, the Operating Partnership hereby agrees that Notes will be sold exclusively to or through the Agents. The Operating Partnership agrees that it will not appoint any other agents to act on its behalf, or to assist it, in the placement of the Notes. (b) SALE OF NOTES. The Operating Partnership shall not sell or approve the solicitation of offers for the purchase of Notes in excess of the amount which shall be authorized by the Operating Partnership from time to time or in excess of the aggregate initial offering price of Notes registered pursuant to the Registration Statement. The Agents shall have no responsibility for maintaining records with respect to the aggregate initial offering price of Notes sold, or of otherwise monitoring the availability of Notes for sale, under the Registration Statement. 3 (c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to purchase Notes from the Operating Partnership as principal. However, absent an agreement between an Agent and the Operating Partnership that such Agent shall be acting solely as an agent for the Operating Partnership, such Agent shall be deemed to be acting as principal in connection with any offering of Notes by the Operating Partnership through such Agent. Accordingly, the Agents, individually or in a syndicate, may agree from time to time to purchase Notes from the Operating Partnership as principal for resale to investors and other purchasers determined by such Agents. Any purchase of Notes from the Operating Partnership by an Agent as principal shall be made in accordance with Section 3(a) hereof. (d) SOLICITATIONS AS AGENT. If agreed upon between an Agent and the Operating Partnership, such Agent, acting solely as an agent for the Operating Partnership and not as principal, will solicit offers for the purchase of Notes. Such Agent will communicate to the Operating Partnership, orally, each offer for the purchase of Notes solicited by it on an agency basis other than those offers rejected by such Agent. Such Agent shall have the right, in its discretion reasonably exercised, to reject any offer for the purchase of Notes, in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein. The Operating Partnership may accept or reject any offer for the purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts to assist the Operating Partnership in obtaining performance by each purchaser whose offer for the purchase of Notes has been solicited by it on an agency basis and accepted by the Operating Partnership. Such Agent shall not have any liability to the Operating Partnership in the event that any such purchase is not consummated for any reason. If the Operating Partnership shall default on its obligation to deliver Notes to a purchaser whose offer has been solicited by such Agent on an agency basis and accepted by the Operating Partnership, the Operating Partnership shall (i) hold such Agent harmless against any loss, claim or damage arising from or as a result of such default by the Operating Partnership and (ii) pay to such Agent any commission to which it would otherwise be entitled absent such default. (e) RELIANCE. The Operating Partnership and the Agents agree that any Notes purchased from the Operating Partnership by one or more Agents as principal shall be purchased, and any Notes the placement of which an Agent arranges as an agent of the Operating Partnership shall be placed by such Agent, in reliance on the representations, warranties, covenants and agreements of the Operating Partnership contained herein and on the terms and conditions and in the manner provided herein. SECTION 2. REPRESENTATIONS AND WARRANTIES. (a) The Operating Partnership represents and warrants to each Agent as of the date hereof, as of the date of each acceptance by the Operating Partnership of an offer for the purchase of Notes (whether to such Agent as principal or through such Agent as agent), as of the date of each delivery of Notes (whether to such Agent as principal or through such Agent as agent) (the date of each such delivery to such Agent as principal is referred to herein as a "Settlement Date"), and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented (each of the times referenced above is referred to herein as a "Representation Date"), as follows: 4 (i) DUE ORGANIZATION, GOOD STANDING AND DUE QUALIFICATION OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each of the Company and the Operating Partnership has been duly organized and is validly existing as a corporation or limited partnership in good standing under the laws of the State of Indiana with corporate or partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into this Agreement and consummate the transactions contemplated in the Prospectus; each of the Company and the Operating Partnership is duly qualified as a foreign corporation or limited partnership 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 or be in good standing would not result in a material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Duke Group considered as one enterprise (a "Material Adverse Effect"); all of the issued and outstanding Units of the Operating Partnership have been duly authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code ss.23-16-7-8; and none of the outstanding Units of the Operating Partnership were issued in violation of preemptive or other similar rights of any securityholder of the Operating Partnership. (ii) DUE INCORPORATION, GOOD STANDING AND DUE QUALIFICATION OF SIGNIFICANT SUBSIDIARIES. Each significant subsidiary (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if any (each, a "Significant Subsidiary") has been duly organized and is validly existing as a corporation, partnership or limited liability company in good standing under the laws of the jurisdiction of its incorporation, has corporate, partnership or limited liability company power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus and is duly qualified as a foreign corporation, partnership or limited liability company 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 or be in good standing would not result in a Material Adverse Effect; except as stated in the Prospectus, all of the issued and outstanding shares of capital stock or partnership or limited liability company interests of each Significant Subsidiary have been duly authorized and are validly issued, fully paid and non-assessable (except, as to partnerships, as provided under Indiana Code ss.23-16-7-8) and is owned by the Company or the Operating Partnership, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the outstanding shares of capital stock or partnership or limited liability company interests of any Significant Subsidiary was issued in violation of preemptive or other similar rights of any securityholder of such Significant Subsidiary. (iii) REGISTRATION STATEMENT AND PROSPECTUS. The Operating Partnership meets the requirements for use of Form S-3 under the 1933 Act; the Registration Statement (or any Rule 462(b) Registration Statement) has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement (or any Rule 5 462(b) Registration Statement) has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Operating Partnership, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with; the Indenture has been duly qualified under the 1939 Act; at the respective times that the Registration Statement (including any Rule 462(b) Registration Statement) and any post-effective amendment thereto (including the filing of the Operating Partnership's most recent Annual Report on Form 10-K with the Commission (the "Annual Report on Form 10-K")) became effective and at each Representation Date, the Registration Statement (including any Rule 462(b) Registration Statement) and any amendments thereto complied and will comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 Act Regulations") and did not and 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; each preliminary prospectus and prospectus 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 Regulations; each preliminary prospectus and the Prospectus delivered to the applicable Agent(s) for use in connection with the offering of Notes are identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T; and at the date hereof, at the date of the Prospectus and each amendment or supplement thereto and at each Representation Date, neither the Prospectus nor any amendment or supplement thereto included or will include an untrue statement of a material fact or omitted or will 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 the Prospectus made in reliance upon and in conformity with information furnished to the Operating Partnership in writing by the Agents expressly for use in the Registration Statement or the Prospectus. (iv) INCORPORATED DOCUMENTS. The documents incorporated or deemed to be incorporated by reference in the Prospectus, 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 date hereof, at the date of the Prospectus and at each Representation Date, did not and 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. (v) INDEPENDENT ACCOUNTANTS. The accountants who certified the financial statements and any supporting schedules thereto included in the Registration Statement and the Prospectus are independent public accountants as required by the 1933 Act and the 1933 Act Regulations. 6 (vi) FINANCIAL STATEMENTS. The consolidated financial statements of the Operating Partnership included in the Registration Statement and the Prospectus, together with the related schedules and notes, as well as those financial statements, schedules and notes of any other entity included in the Registration Statement and the Prospectus, present fairly the consolidated financial position of the Operating Partnership and its subsidiaries, or such other entity, as the case may be, at the dates indicated and the consolidated statement of operations, stockholders' equity and cash flows of the Operating Partnership and its subsidiaries, or such other entity, as the case may be, for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved; the supporting schedules, if any, included in the Registration Statement and the Prospectus present fairly in accordance with GAAP the information required to be stated therein; the selected financial data and the summary financial information included in the Registration Statement and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in the Registration Statement and the Prospectus; and any pro forma consolidated financial statements of the Operating Partnership and its subsidiaries and the related notes thereto included in the Registration Statement and the Prospectus present fairly the information shown therein, have been prepared in accordance with the Commission's rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. (vii) NO MATERIAL CHANGES. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (1) there has been no event or occurrence that would result in a Material Adverse Effect and (2) there have been no transactions entered into by the Duke Group, other than those in the ordinary course of business, which are material with respect to the Duke Group considered as one enterprise. (viii) AUTHORIZATION, ETC. OF THIS AGREEMENT, THE INDENTURE AND THE NOTES. This Agreement has been duly authorized, executed and delivered by the Operating Partnership; the Indenture has been duly authorized, executed and delivered by the Operating Partnership and will be a valid and legally binding agreement of the Operating Partnership, enforceable against the Operating Partnership in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any debt securities issued under the Indenture that are payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or 7 prohibit the making of payments outside the United States; the Notes have been duly authorized by the Operating Partnership for offer, sale, issuance and delivery pursuant to this Agreement and, when issued, authenticated and delivered in the manner provided for in the Indenture and delivered against payment of the consideration therefor, will constitute valid and legally binding obligations of the Operating Partnership, enforceable against the Operating Partnership in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any Notes payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate or exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States; the Notes will be substantially in a form previously certified to the Agents and contemplated by the Indenture; and each holder of Notes will be entitled to the benefits of the Indenture. (ix) DESCRIPTIONS OF THE INDENTURE AND THE NOTES. The Indenture and the Notes conform and will conform in all material respects to the statements relating thereto contained in the Prospectus and are substantially in the form filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement. (x) ACCURACY OF EXHIBITS. There are no contracts or documents which are required to be described in the Registration Statement, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. (xi) ABSENCE OF DEFAULTS AND CONFLICTS. None of the entities comprising the Duke Group is in violation of the provisions of its charter or by-laws, certificate of limited partnership, partnership agreement or corresponding organizational documents or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any member of the Duke Group is a party or by which any of them may be bound or to which any of the property or assets of the Duke Group is subject (collectively, "Agreements and Instruments"), except for such defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Agreement, the Indenture, the Notes and any other agreement or instrument entered into or issued or to be entered into or issued by the Operating Partnership in connection with the transactions contemplated by the Prospectus, the consummation of the transactions contemplated in the Prospectus (including the issuance and sale of the Notes and the use of proceeds therefrom as described in the Prospectus) and the compliance by the Operating Partnership with its obligations hereunder and under the Indenture, the Notes and such other agreements or instruments have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or the passage of time or both, conflict with or constitute a breach of, or default or event or 8 condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by any member of the Duke Group (a "Repayment Event") under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of any member of the Duke Group pursuant to, any Agreements and Instruments, nor will such action result in any violation of the provisions of the charter or by-laws, certificate of limited partnership, partnership agreement or corresponding organizational documents of any member of the Duke Group or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over any member of the Duke Group or any of their assets, properties or operations. (xii) ABSENCE OF LABOR DISPUTES. No labor dispute with the employees of the Duke Group exists or, to the knowledge of the Operating Partnership, is imminent, and the Operating Partnership is not aware of any existing or imminent labor disturbance by the employees of any of the principal suppliers, manufacturers, customers or contractors to any member of the Duke Group, which, in either case, may reasonably be expected to result in a Material Adverse Effect. (xiii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or to the knowledge of the Operating Partnership threatened, against or affecting any member of the Duke Group which is required to be disclosed in the Registration Statement and the Prospectus (other than as stated therein), or which may reasonably be expected to result in a Material Adverse Effect, or which may reasonably be expected to materially and adversely affect the assets, properties or operations thereof, the performance by the Operating Partnership of its obligations under this Agreement, the Indenture and the Notes or the consummation of the transactions contemplated in the Prospectus; and the aggregate of all pending legal or governmental proceedings to which any member of the Duke Group is a party or of which any of their respective assets, properties or operations is the subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation incidental to the business, may not reasonably be expected to result in a Material Adverse Effect. (xiv) POSSESSION OF INTELLECTUAL PROPERTY. The members of the Duke Group own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, "Intellectual Property") necessary to carry on the business now operated by them, and none of the members of the Duke Group has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the members of the Duke Group therein, and which infringement, conflict, invalidity or inadequacy, singly or in the aggregate, if the 9 subject of any unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (xv) POSSESSION OF LICENSES AND PERMITS. The members of the Duke Group possess such permits, licenses, approvals, consents and other authorizations (collectively, "Governmental Licenses") issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them; the members of the Duke Group are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not result in a Material Adverse Effect; and none of the members of the Duke Group has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (xvi) TITLE TO PROPERTY. (A) With respect to the Properties, the Operating Partnership and the Property Partnerships have good and marketable title to all items of real property (and improvements thereon), leasehold interests, general and limited partnership interests and limited liability company interests, in each case, free and clear of all liens, encumbrances, claims, security interests and defects, except such as are (i) described in the Registration Statement and the Prospectus or in the Operating Partnership'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 or in the Operating Partnership's Annual Report on Form 10-K for the most recent fiscal year ended or (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 10 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. (xvii) ENVIRONMENTAL LAWS. Except as otherwise stated in the Registration Statement and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Operating Partnership nor any of its subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, "Hazardous Materials") or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the Operating Partnership and its subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Operating Partnership or any of its subsidiaries and (D) there are no events or circumstances that may reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Operating Partnership or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws. (xviii) NO FILINGS, REGULATORY APPROVALS ETC. No filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by the Operating Partnership of this Agreement, the Indenture and the Notes or for the performance by the Operating Partnership of the transactions contemplated in this Agreement, the Indenture or the Prospectus, except such as have been previously made, obtained or rendered, as applicable. (xix) INVESTMENT COMPANY ACT. The Operating Partnership is not, and upon the issuance and sale of the Notes as herein contemplated and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" within the meaning of the Investment Operating Partnership Act of 1940, as amended (the 11 ("1940 Act"). (xx) COMMODITY EXCHANGE ACT. The Notes, upon issuance, will be excluded or exempted under, or beyond the purview of, the Commodity Exchange Act, as amended (the "Commodity Exchange Act"), and the rules and regulations of the Commodity Futures Trading Commission under the Commodity Exchange Act (the "Commodity Exchange Act Regulations"). (xxi) RATINGS. The Medium-Term Note Program under which the Notes are issued (the "Program"), as well as the Notes, are rated Baa1 by Moody's Investors Service, Inc., BBB+ by Standard & Poor's Ratings Services, and BBB+ by Duff & Phelps Credit Rating, or such other rating as to which the Operating Partnership shall have most recently notified the Agents pursuant to Section 4(a) hereof. (b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of the Company, the Operating Partnership or any of their respective subsidiaries and delivered to one or more Agents or to counsel for the Agents in connection with an offering of Notes to one or more Agents as principal or through an Agent as agent shall be deemed a representation and warranty by such entity to such Agent or Agents as to the matters covered thereby on the date of such certificate and, unless subsequently amended or supplemented, at each Representation Date subsequent thereto. SECTION 3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT. (a) PURCHASES AS PRINCIPAL. Notes purchased from the Operating Partnership by the Agents, individually or in a syndicate, as principal shall be made in accordance with terms agreed upon between such Agent or Agents and the Operating Partnership (which terms, unless otherwise agreed, shall, to the extent applicable, include those terms specified in Exhibit A hereto and shall be agreed upon orally, with written confirmation prepared by such Agent or Agents and mailed to the Operating Partnership). An Agent's commitment to purchase Notes as principal shall be deemed to have been made on the basis of the representations and warranties of the Operating Partnership herein contained and shall be subject to the terms and conditions herein set forth. Unless the context otherwise requires, references herein to "this Agreement" shall include the applicable agreement of one or more Agents to purchase Notes from the Operating Partnership as principal. Each purchase of Notes, unless otherwise agreed, shall be at a discount from the principal amount of each such Note equivalent to the applicable commission set forth in Schedule A hereto. The Agents may engage the services of any broker or dealer in connection with the resale of the Notes purchased by them as principal and may allow all or any portion of the discount received from the Operating Partnership in connection with such purchases to such brokers or dealers. At the time of each purchase of Notes from the Operating Partnership by one or more Agents as principal, such Agent or Agents shall specify the requirements for the officers' certificate, opinion of counsel and comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof. If the Operating Partnership and two or more Agents enter into an agreement pursuant to which such Agents agree to purchase Notes from the Operating Partnership as principal and one or more of such Agents shall fail at the Settlement Date to purchase the Notes which it or they are 12 obligated to purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have the right, within 24 hours thereafter, to make arrangements for one of them or one or more other Agents or underwriters to purchase all, but not less than all, of the Defaulted Notes in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that if such arrangements shall not have been completed within such 24-hour period, then: (a) if the aggregate principal amount of Defaulted Notes does not exceed 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on the Settlement Date, the nondefaulting Agents shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective initial underwriting obligations bear to the underwriting obligations of all nondefaulting Agents; or (b) if the aggregate principal amount of Defaulted Notes exceeds 10% of the aggregate principal amount of Notes to be so purchased by all of such Agents on the Settlement Date, such agreement shall terminate without liability on the part of any nondefaulting Agent. No action taken pursuant to this paragraph shall relieve any defaulting Agent from liability in respect of its default. In the event of any such default which does not result in a termination of such agreement, either the nondefaulting Agents or the Operating Partnership shall have the right to postpone the Settlement Date 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. (b) SOLICITATIONS AS AGENT. On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, when agreed by the Operating Partnership and an Agent, such Agent, as an agent of the Operating Partnership, will use its reasonable efforts to solicit offers for the purchase of Notes upon the terms set forth in the Prospectus. The Agents are not authorized to appoint sub-agents with respect to Notes sold through them as agent. All Notes sold through an Agent as agent will be sold at 100% of their principal amount unless otherwise agreed upon between the Operating Partnership and such Agent. The Operating Partnership reserves the right, in its sole discretion, to suspend solicitation of offers for the purchase of Notes through an Agent, as an agent of the Operating Partnership, commencing at any time for any period of time or permanently. As soon as practicable after receipt of instructions from the Operating Partnership, such Agent will suspend solicitation of offers for the purchase of Notes from the Operating Partnership until such time as the Operating Partnership has advised such Agent that such solicitation may be resumed. The Operating Partnership agrees to pay each Agent a commission, in the form of a discount, equal to the applicable percentage of the principal amount of each Note sold by the Operating Partnership as a result of a solicitation made by such Agent, as an agent of the Operating Partnership, as set forth in Schedule A hereto. (c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or formula, maturity date and other terms of the Notes specified in Exhibit A hereto (as applicable) shall be agreed upon 13 between the Operating Partnership and the applicable Agent(s) and specified in a pricing supplement to the Prospectus (each, a "Pricing Supplement") to be prepared by the Operating Partnership in connection with each sale of Notes. Except as otherwise specified in the applicable Pricing Supplement, the Notes will be issued in denominations of U.S. $1,000 or any larger amount that is an integral multiple of U.S. $1,000. Administrative procedures with respect to the issuance and sale of the Notes (the "Procedures") shall be agreed upon from time to time among the Operating Partnership, the Agents and the Trustee. The Agents and the Operating Partnership agree to perform, and the Operating Partnership agrees to cause the Trustee to agree to perform, their respective duties and obligations specifically provided to be performed by them in the Procedures. SECTION 4. COVENANTS OF THE OPERATING PARTNERSHIP. The Operating Partnership covenants and agrees with each Agent as follows: (a) NOTICE OF CERTAIN EVENTS. The Operating Partnership will notify the Agents immediately, and confirm such notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any amendment or supplement to the Prospectus (other than any amendment or supplement thereto providing solely for the determination of the variable terms of the Notes or relating solely to the offering of securities other than the Notes), (ii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, or of any order preventing or suspending the use of any preliminary prospectus, or of the initiation of any proceedings for that purpose or (v) any change in the rating assigned by any nationally recognized statistical rating organization to the Program or any debt securities (including the Notes) of the Operating Partnership, or the public announcement by any nationally recognized statistical rating organization that it has under surveillance or review, with possible negative implications, its rating of the Program or any such debt securities, or the withdrawal by any nationally recognized statistical rating organization of its rating of the Program or any such debt securities. The Operating Partnership will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment. (b) FILING OR USE OF AMENDMENTS. The Operating Partnership will give the Agents advance notice of its intention to file or prepare any additional registration statement with respect to the registration of additional Notes, any amendment to the Registration Statement (including any filing under Rule 462(b) of the 1933 Act Regulations) or any amendment or supplement to the prospectus included in the Registration Statement at the time it became effective or to the Prospectus (other than an amendment or supplement thereto providing solely for the determination of the variable terms of the Notes or relating solely to the offering of securities other than the Notes), whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish to the Agents copies of any such document a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such document to which the Agents or counsel for the Agents shall reasonably object. 14 (c) DELIVERY OF THE REGISTRATION STATEMENT. The Operating Partnership has furnished to each Agent and to counsel for the Agents, without charge, signed and conformed copies of the Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and signed and conformed copies of all consents and certificates of experts. The Registration Statement and each amendment thereto furnished to the Agents will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (d) DELIVERY OF THE PROSPECTUS. The Operating Partnership will deliver to each Agent, without charge, as many copies of each preliminary prospectus as such Agent may reasonably request, and the Operating Partnership hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Operating Partnership will furnish to each Agent, without charge, such number of copies of the Prospectus (as amended or supplemented) as such Agent may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Agents will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (e) PREPARATION OF PRICING SUPPLEMENTS. The Operating Partnership will prepare, with respect to any Notes to be sold to or through one or more Agents pursuant to this Agreement, a Pricing Supplement with respect to such Notes in a form previously approved by the Agents. The Operating Partnership will deliver such Pricing Supplement no later than 11:00 a.m., New York City time, on the business day following the date of the Operating Partnership's acceptance of the offer for the purchase of such Notes and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of business of the Commission on the fifth business day after the date on which such Pricing Supplement is first used. (f) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise provided in subsection (m) of this Section 4, if at any time during the term of this Agreement any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Agents or counsel for the Operating Partnership, to amend the Registration Statement in order that the Registration Statement 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 or to amend or supplement the Prospectus in order that 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 not misleading in the light of the circumstances existing at the time the Prospectus is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Operating Partnership shall give immediate notice, confirmed in writing, to the Agents to cease the solicitation of offers for the purchase of Notes in their capacity as agents and to cease sales of any Notes they may then own as principal, and the Operating Partnership will promptly prepare and file with the Commission, subject to Section 4(b) hereof, whether by filing documents pursuant to the 1934 Act or the 1933 Act or otherwise, such amendment or supplement as may be necessary to correct such 15 statement or omission or to make the Registration Statement and Prospectus comply with such requirements, and the Operating Partnership will furnish to the Agents, without charge, such number of copies of such amendment or supplement as the Agents may reasonably request. In addition, the Operating Partnership will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of each offering of Notes. (g) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except as otherwise provided in subsection (m) of this Section 4, on or prior to the date on which there shall be released to the general public interim financial statement information related to the Operating Partnership with respect to each of the first three quarters of any fiscal year or preliminary financial statement information with respect to any fiscal year, the Operating Partnership shall furnish such information to the Agents, confirmed in writing, and shall cause the Prospectus to be amended or supplemented to include financial information with respect thereto and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding thereof or as shall be required by the 1933 Act or the 1933 Act Regulations. (h) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as otherwise provided in subsection (m) of this Section 4, on or prior to the date on which there shall be released to the general public financial information included in or derived from the audited consolidated financial statements of the Operating Partnership for the preceding fiscal year, the Operating Partnership shall furnish such information to the Agents, confirmed in writing, and shall cause the Prospectus to be amended or supplemented, whether by the filing of documents pursuant to the 1934 Act or the 1933 Act or otherwise, to include or incorporate by reference such audited consolidated financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent accountants with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such consolidated financial statements or as shall be required by the 1933 Act or the 1933 Act Regulations. (i) EARNINGS STATEMENTS. The Operating Partnership will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act. (j) REPORTING REQUIREMENTS. The Operating Partnership, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act in connection with sales of the Notes, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations. (k) RESTRICTION ON OFFERS AND SALES OF SECURITIES. If specified by the applicable Agent or Agents in connection with a purchase of Notes as principal, between the date of the agreement by such Agent(s) to purchase the related Notes from the Operating Partnership and the Settlement Date with respect thereto, the Operating Partnership will not, without the prior written consent of such 16 Agent(s), issue, sell, offer or contract to sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Operating Partnership (other than the Notes that are to be sold pursuant to such agreement or commercial paper in the ordinary course of business). (l) USE OF PROCEEDS. The Operating Partnership will use the net proceeds received by it from the issuance and sale of the Notes in the manner specified in the Prospectus. (m) SUSPENSION OF CERTAIN OBLIGATIONS. The Operating Partnership shall not be required to comply with the provisions of subsections (f), (g) or (h) of this Section 4 during any period from the time (i) the Agents shall have suspended solicitation of offers for the purchase of Notes in their capacity as agents pursuant to a request from the Operating Partnership and (ii) no Agent shall then hold any Notes purchased from the Operating Partnership as principal, as the case may be, until the time the Operating Partnership shall determine that solicitation of offers for the purchase of Notes should be resumed or an Agent shall subsequently purchase Notes from the Operating Partnership as principal. SECTION 5. CONDITIONS OF AGENTS' OBLIGATIONS. The obligations of one or more Agents to purchase Notes from the Operating Partnership as principal and to solicit offers for the purchase of Notes as an agent of the Operating Partnership, and the obligations of any purchasers of Notes sold through an Agent as an agent of the Operating Partnership, will be subject to the accuracy of the representations and warranties on the part of the Operating Partnership herein contained or contained in any certificate of an officer of the Company, as general partner of the Operating Partnership, or an officer of any of its subsidiaries delivered pursuant to the provisions hereof, to the performance and observance by the Operating Partnership of its covenants and other obligations hereunder, and to the following additional conditions precedent: (a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement (including any Rule 462(b) Registration Statement) has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceedings for that purpose shall have been instituted or shall be pending or threatened by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Agents. (b) LEGAL OPINIONS. On the date hereof, the Agents shall have received the following legal opinions, dated as of the date hereof and in form and substance satisfactory to the Agents: (1) OPINION OF COUNSEL FOR THE OPERATING PARTNERSHIP. The favorable opinion of Bose McKinney & Evans LLP, counsel for the Operating Partnership, to the effect set forth in Exhibit B hereto and to such further effect as the Agents may reasonably request. (2) OPINION OF COUNSEL FOR THE AGENTS. The favorable opinion of Clifford Chance Rogers & Wells LLP, counsel for the Agents, with respect to the matters set forth in paragraphs (1) (as to the first sentence only), (6), (7), (8), (9) and (17) and the penultimate 17 paragraph of Exhibit B hereto. (c) OFFICER'S CERTIFICATE. On the date hereof, there shall not have been, since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Duke Group considered as one enterprise, whether or not arising in the ordinary course of business, and the Agents shall have received a certificate of the Chairman of the Board, the President, an Executive vice President or a Vice President of the Company, as general partner of the Operating Partnership, and of the chief financial officer or chief accounting officer of the Company, as general partner of the Operating Partnership, dated as of the date hereof, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Operating Partnership contained in Section 2 hereof are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) the Operating Partnership has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted, are pending or, to the best of such officer's knowledge, are threatened by the Commission. (d) COMFORT LETTER OF KPMG, LLP. On the date hereof, the Agents shall have received a letter from KPMG, LLP, dated as of the date hereof and in form and substance satisfactory to the Agents, to the effect set forth in Exhibit C hereto. (e) ADDITIONAL DOCUMENTS. On the date hereof, counsel to the Agents shall have been furnished with such documents and opinions as such counsel may require for the purpose of enabling such counsel to pass upon the issuance and sale of Notes as herein contemplated and related proceedings, or in order to evidence the accuracy of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Operating Partnership in connection with the issuance and sale of Notes as herein contemplated shall be satisfactory in form and substance to the Agents and to counsel to the Agents. If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the applicable Agent or Agents by notice to the Operating Partnership at any time and any such termination shall be without liability of any party to any other party except as provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15 hereof shall survive any such termination and remain in full force and effect. 18 SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT AS AGENT. Delivery of Notes sold through an Agent as an agent of the Operating Partnership shall be made by the Operating Partnership to such Agent for the account of any purchaser only against payment therefor in immediately available funds. In the event that a purchaser shall fail either to accept delivery of or to make payment for a Note on the date fixed for settlement, such Agent shall promptly notify the Operating Partnership and deliver such Note to the Operating Partnership and, if such Agent has theretofore paid the Operating Partnership for such Note, the Operating Partnership will promptly return such funds to such Agent. If such failure has occurred for any reason other than default by such Agent in the performance of its obligations hereunder, the Operating Partnership will reimburse such Agent on an equitable basis for its loss of the use of the funds for the period such funds were credited to the Operating Partnership's account. SECTION 7. ADDITIONAL COVENANTS OF THE OPERATING PARTNERSHIP. The Operating Partnership further covenants and agrees with each Agent as follows: (a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by the Operating Partnership of an offer for the purchase of Notes (whether to one or more Agents as principal or through an Agent as agent), and each delivery of Notes (whether to one or more Agents as principal or through an Agent as agent), shall be deemed to be an affirmation that the representations and warranties of the Operating Partnership herein contained and contained in any certificate theretofore delivered to the Agents pursuant hereto are true and correct at the time of such acceptance or sale, as the case may be, and an undertaking that such representations and warranties will be true and correct at the time of delivery to such Agent(s) or to the purchaser or its agent, as the case may be, of the Notes relating to such acceptance or sale, as the case may be, as though made at and as of each such time (it being understood that such representations and warranties shall relate to the Registration Statement and Prospectus as amended and supplemented to each such time). (b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the determination of the variable terms of the Notes or relating solely to the offering of securities other than the Notes), (ii) (if required in connection with the purchase of Notes from the Operating Partnership by one or more Agents as principal) the Operating Partnership sells Notes to one or more Agents as principal or (iii) the Operating Partnership sells Notes in a form not previously certified to the Agents by the Operating Partnership, the Operating Partnership shall furnish or cause to be furnished to the Agent(s), forthwith a certificate dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form satisfactory to the Agent(s) to the effect that the statements contained in the certificate referred to in Section 5(c) hereof which were last furnished to the Agents are true and correct at the time of the filing or effectiveness of such amendment or supplement, as applicable, or the time of such sale, as the case may be, as though made at and as of such time (except that such statements shall be deemed to relate to the Registration Statement and 19 the Prospectus as amended and supplemented to such time) or, in lieu of such certificate, a certificate of the same tenor as the certificate referred to in Section 5(c) hereof, modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such certificate (it being understood that, in the case of clause (ii) above, any such certificate shall also include a certification that there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Duke Group considered as one enterprise since the date of the agreement by such Agent(s) to purchase Notes from the Operating Partnership as principal). (c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the determination of the variable terms of the Notes or relating solely to the offering of securities other than the Notes), (ii) (if required in connection with the purchase of Notes from the Operating Partnership by one or more Agents as principal) the Operating Partnership sells Notes to one or more Agents as principal or (iii) the Operating Partnership sells Notes in a form not previously certified to the Agents by the Operating Partnership, the Operating Partnership shall furnish or cause to be furnished forthwith to the Agent(s) and to counsel to the Agents the written opinion of Bose McKinney & Evans LLP, counsel to the Operating Partnership, or other counsel satisfactory to the Agent(s), dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form and substance satisfactory to the Agent(s), of the same tenor as the opinion referred to in Section 5(b)(1) hereof, but modified, as necessary, to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion or, in lieu of such opinion, counsel last furnishing such opinion to the Agents shall furnish the Agent(s) with a letter substantially to the effect that the Agent(s) may rely on such last opinion to the same extent as though it was dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance). (d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (i) the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes) or (ii) (if required in connection with the purchase of Notes from the Operating Partnership by one or more Agents as principal) the Operating Partnership sells Notes to one or more Agents as principal, the Operating Partnership shall cause KPMG, LLP forthwith to furnish to the Agent(s) a letter, dated the date of filing with the Commission or the date of effectiveness of such amendment or supplement, as applicable, or the date of such sale, as the case may be, in form satisfactory to the Agent(s), of the same tenor as the letter referred to in Section 5(d) hereof but modified to relate to the Registration Statement and Prospectus as amended and supplemented to the date of such letter. 20 SECTION 8. INDEMNIFICATION. (a) INDEMNIFICATION OF THE AGENTS. The Operating Partnership agrees to indemnify and hold harmless each Agent and each person, if any, who controls such Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of an 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 an untrue statement or alleged untrue statement of a material fact included 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; (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 any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, provided that (subject to Section 8(d) hereof) any such settlement is effected with the written consent of the Operating Partnership; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by such Agent), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Operating Partnership by the Agents expressly for use in the Registration Statement (or any amendment thereto) or any preliminary prospectus or the Prospectus (or any amendment or supplement thereto). (b) INDEMNIFICATION OF OPERATING PARTNERSHIP, DIRECTORS AND OFFICERS. Each Agent severally agrees to indemnify and hold harmless the Operating Partnership, the directors of the Company, each of the officers who signed the Registration Statement and each person, if any, who controls the Operating Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 8(a) hereof, as incurred, but only with respect to untrue 21 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 Operating Partnership by the Agents 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) ACTIONS AGAINST PARTIES; NOTIFICATION. 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 hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 8(a) hereof, counsel to the indemnified parties shall be selected by the applicable Agent(s) and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel to the indemnified shall be selected by the Operating Partnership. An indemnifying party may participate at its own expense in the defense of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. 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. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 8 or 9 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party. (d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 8(a)(ii) effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement. SECTION 9. CONTRIBUTION. If the indemnification provided for in Section 8 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of 22 any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Operating Partnership, on the one hand, and the applicable Agent(s), on the other hand, from the offering of the Notes that were the subject of the claim for indemnification or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Operating Partnership, on the one hand, and the applicable Agent(s), on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Operating Partnership, on the one hand, and the applicable Agent(s), on the other hand, in connection with the offering of the Notes that were the subject of the claim for indemnification shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Notes (before deducting expenses) received by the Operating Partnership and the total discount or commission received by each applicable Agent, as the case may be, bears to the aggregate initial offering price of such Notes. The relative fault of the Operating Partnership, on the one hand, and the applicable Agent(s), on the other hand, shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Operating Partnership or by the applicable Agent(s) and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Operating Partnership and the Agents agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the applicable Agent(s) were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party 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 based upon any applicable untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 9, (i) no Agent shall be required to contribute any amount in excess of the amount by which the total discount or commission received by such Agent in connection with the offering of the Notes that were the subject of the claim for indemnification exceeds the amount of any damages which such Agent has otherwise been required to pay by reason of any applicable untrue or alleged untrue statement or omission or alleged omission and (ii) 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. In addition, in connection with an offering of Notes purchased from 23 the Operating Partnership by two or more Agents as principal, the respective obligations of such Agents to contribute pursuant to this Section 9 are several, and not joint, in proportion to the aggregate principal amount of Notes that each such Agent has agreed to purchase from the Operating Partnership. For purposes of this Section 9, each person, if any, who controls an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as such Agent, and each director of the Operating Partnership, each officer of the Operating Partnership and each person, if any, who controls the Operating Partnership within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Operating Partnership. SECTION 10. PAYMENT OF EXPENSES. The Operating Partnership will pay all expenses incident to the performance of its obligations under this Agreement, including: (a) The preparation, filing, printing and delivery of the Registration Statement as originally filed and all amendments thereto and any preliminary prospectus, the Prospectus and any amendments or supplements thereto; (b) The preparation, printing and delivery of this Agreement and the Indenture; (c) The preparation, issuance and delivery of the Notes, including any fees and expenses relating to the eligibility and issuance of Notes in book-entry form and the cost of obtaining CUSIP or other identification numbers for the Notes; (d) The fees and disbursements of the Operating Partnership's accountants, counsel and other advisors or agents (including any calculation agent or exchange rate agent) and of the Trustee and its counsel; (e) The reasonable fees and disbursements of counsel to the Agents incurred in connection with the establishment of the Program and incurred from time to time in connection with the transactions contemplated hereby; (f) The fees charged by nationally recognized statistical rating organizations for the rating of the Program and the Notes; (g) The fees and expenses incurred in connection with any listing of Notes on a securities exchange; (h) The filing fees incident to, and the reasonable fees and disbursements of counsel to the Agents in connection with, the review, if any, by the National Association of Securities Dealers, Inc. (the "NASD"); and 24 (i) Any advertising and other out-of-pocket expenses of the Agents incurred with the approval of the Operating Partnership. SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company, the Operating Partnership or any of its subsidiaries submitted pursuant hereto or thereto shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of the Agents or any controlling person of an Agent, or by or on behalf of the Operating Partnership, and shall survive each delivery of and payment for the Notes. SECTION 12. TERMINATION. (a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any agreement by one or more Agents to purchase Notes from the Operating Partnership as principal) may be terminated for any reason, at any time by either the Operating Partnership or an Agent, as to itself, upon the giving of 30 days' prior written notice of such termination to the other party hereto. (b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The applicable Agent(s) may terminate any agreement by such Agent(s) to purchase Notes from the Operating Partnership as principal, immediately upon notice to the Operating Partnership, at any time prior to the Settlement Date relating thereto, if (i) there has been, since the date of such agreement or since the respective dates as of which information is given in the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Operating Partnership and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) there has occurred any material adverse change in the financial markets in the United States or, if such Notes are denominated and/or payable in, or indexed to, one or more foreign or composite currencies, in the international financial markets, or any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development or event involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Agent(s), impracticable to market such Notes or enforce contracts for the sale of such Notes, or (iii) trading in any securities of the Company or the Operating Partnership has been suspended or materially limited by the Commission or a national securities exchange, or if trading generally on the New York Stock Exchange or the American Stock Exchange or in the Nasdaq National Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by either of said exchanges or by such system or by order of the Commission, the NASD or any other governmental authority, or (iv) a banking moratorium has been declared by either Federal or New York authorities or by the relevant authorities in the country or countries of origin of any foreign or composite currency in which such Notes are denominated and/or payable, or (v) the rating assigned by any nationally recognized statistical rating organization to the Program or any debt securities (including the Notes) of the Operating Partnership as of the date of such agreement shall have been lowered or withdrawn since that date or if any such rating organization shall have publicly announced that it has under surveillance or review its rating of the Program or any such debt securities, or (vi) there shall have come to the 25 attention of such Agent(s) any facts that would cause such Agent(s) to believe that the Prospectus, at the time it was required to be delivered to a purchaser of such Notes, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time of such delivery, not misleading. (c) GENERAL. In the event of any such termination, neither party will have any liability to the other party hereto, except that (i) the Agents shall be entitled to any commissions earned in accordance with the third paragraph of Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own any Notes purchased by it from the Operating Partnership as principal or (b) an offer to purchase any of the Notes has been accepted by the Operating Partnership but the time of delivery to the purchaser or his agent of such Notes relating thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so resold or delivered, as the case may be, and (iii) the covenant set forth in Section 4(i) hereof, the provisions of Section 10 hereof, the indemnity and contribution agreements set forth in Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in effect. SECTION 13. NOTICES. Unless otherwise provided herein, all notices required under the terms and provisions hereof shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any such notice shall be effective when received at the address specified below. 26 If to the Company or the Operating Partnership: Duke-Weeks Realty Limited Partnership 600 East 96th Street, Suite 100 Indianapolis, Indiana 46240 Attention: Darell E. Zink, Jr. Telecopy No.: (317) 808-6794 If to the Agents: Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Financial Center 15th Floor New York, New York 10080 Attention: MTN Product Management Telecopy No.: (212) 449-2234 Banc One Capital Markets, Inc. One First National Plaza, Suite 0307 Chicago, Illinois 60670 Attention: Operations Manager, Medium-Term Notes/Scott Solis (312) 732-7412 Telecopier: (312) 732-5939 Credit Suisse First Boston Corporation 111 Madison Avenue New York, New York 10010 Attention: Stuart Whitman (212) 538-6479 Telecopier: (212) 325-8157 Deutsche Banc Alex. Brown, Inc. 31 West 52nd Street New York, New York 10019 Attention: Eric Mauff (212) 469-7859 Telecopier: (212) 469-7875 27 Goldman, Sachs & Co. 85 Broad Street New York, New York 10004 Attention: Credit Department/Jeff Staston (212) 902-4015 Telecopier: (212) 346-3594 J.P. Morgan Securities Inc. 60 Wall Street, 3d Floor New York, New York 10260 Attention: John Mix (212) 270-9562 Telecopier: (212) 270-3513 UBS Warburg LLC 299 Park Avenue, 26th Floor New York, New York 10171 Attention: Chris Forstner (203) 719-8244 Telecopier: (203) 719-3160 or at such other address as such party may designate from time to time by notice duly given in accordance with the terms of this Section 13. SECTION 14. PARTIES. This Agreement shall inure to the benefit of and be binding upon the Agents and the Operating Partnership and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the parties hereto and their respective successors and the controlling persons, officers and directors referred to in Sections 8 and 9 hereof and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the parties hereto and their respective successors, and said controlling persons, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Notes shall be deemed to be a successor by reason merely of such purchase. 28 SECTION 15. GOVERNING LAW; FORUM. THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY THE COMPANY AGAINST ANY AGENT IN CONNECTION WITH OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK. SECTION 16. EFFECT OF HEADINGS. The Article and Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 17. COUNTERPARTS. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts hereof shall constitute a single instrument. 29 If the foregoing is in accordance with the Agents' understanding of our agreement, please sign and return to the Operating Partnership a counterpart hereof, whereupon this Distribution Agreement, along with all counterparts, will become a binding agreement among the Agents and the Operating Partnership in accordance with its terms. Very truly yours, DUKE-WEEKS REALTY LIMITED PARTNERSHIP By: DUKE-WEEKS REALTY CORPORATION General Partner By: /s/ Matthew A. Cohoat ------------------------------- Name: Matthew A. Cohoat Title: SVP & Controller CONFIRMED AND ACCEPTED, as of the date first above written: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: _________________________ Authorized Signatory BANK ONE CAPITAL MARKETS, INC. By: _________________________ CREDIT SUISSE FIRST BOSTON CORPORATION By: _________________________ DEUTSCHE BANC ALEX. BROWN INC. By: _________________________ 30 GOLDMAN, SACHS & CO. By: _________________________ J.P. MORGAN SECURITIES INC. By: _________________________ UBS WARBURG LLC By: _________________________ 31 SCHEDULE A As compensation for the services of the Agents hereunder, the Operating Partnership shall pay the applicable Agent, on a discount basis, a commission for the sale of each Note equal to the principal amount of such Note multiplied by the appropriate percentage set forth below:
PERCENT OF MATURITY RANGES PRINCIPAL AMOUNT - --------------- ---------------- From 9 months to less than 1 year .............................. .125% From 1 year to less than 18 months ............................. .150 From 18 months to less than 2 years ............................ .200 From 2 years to less than 3 years .............................. .250 From 3 years to less than 4 years .............................. .350 From 4 years to less than 5 years .............................. .450 From 5 years to less than 6 years .............................. .500 From 6 years to less than 7 years .............................. .550 From 7 years to less than 10 years ............................. .600 From 10 years to less than 15 years ............................ .625 From 15 years to less than 20 years ............................ .700 From 20 years to 30 years ...................................... .750 Greater than 30 years .......................................... *
- ---------- * As agreed to by the Operating Partnership and the applicable Agent at the time of sale. EXHIBIT A PRICING TERMS Principal Amount: $_______ (or principal amount of foreign or composite currency) Interest Rate or Formula: If Fixed Rate Note, Interest Rate: Interest Payment Dates: If Floating Rate Note, Interest Rate Basis(es): If LIBOR, |_| LIBOR Reuters Page: |_| LIBOR Telerate Page: Designated LIBOR Currency: If CMT Rate, Designated CMT Telerate Page: If Telerate Page 7052: |_| Weekly Average |_| Monthly Average Designated CMT Maturity Index: Index Maturity: Spread and/or Spread Multiplier, if any: Initial Interest Rate, if any: Initial Interest Reset Date: Interest Reset Dates: Interest Payment Dates: Maximum Interest Rate, if any: Minimum Interest Rate, if any: Fixed Rate Commencement Date, if any: Fixed Interest Rate, if any: Day Count Convention: Calculation Agent: Redemption Provisions: Initial Redemption Date: Initial Redemption Percentage: Annual Redemption Percentage Reduction, if any: Repayment Provisions: Optional Repayment Date(s): Original Issue Date: Stated Maturity Date: Specified Currency: Exchange Rate Agent: A-1 Authorized Denomination: Purchase Price: ___%, plus accrued interest, if any, from ___________ Price to Public: ___%, plus accrued interest, if any, from ___________ Issue Price: Settlement Date and Time: Additional/Other Terms: Also, in connection with the purchase of Notes from the Operating Partnership by one or more Agents as principal, agreement as to whether the following will be required: Officers' Certificate pursuant to Section 7(b) of the Distribution Agreement. Legal Opinion pursuant to Section 7(c) of the Distribution Agreement. Comfort Letter pursuant to Section 7(d) of the Distribution Agreement. Restrictive agreement pursuant to Section 4(k) of the Distribution Agreement. A-2 EXHIBIT B FORM OF OPINION OF COMPANY'S COUNSEL TO BE DELIVERED PURSUANT TO SECTION 5(b)(1) (1) The Company is a corporation duly organized and validly existing under the laws of the State of Indiana. The Operating Partnership is a limited partnership duly organized and validly existing under the laws of the State of Indiana. (2) The Operating Partnership has partnership power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into the Distribution Agreement and consummate the transactions contemplated in the Prospectus. (3) The Operating Partnership is duly qualified as a foreign partnership 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 or be in good standing would not result in a Material Adverse Effect. (4) All of the issued and outstanding Units have been duly authorized and are validly issued, fully paid and non-assessable, except as provided under Indiana Code ss. 16-7-7; and none of the outstanding Units were issued in violation of preemptive or other similar rights of any securityholder of the Operating Partnership. (5) Each Significant Subsidiary has been duly organized and is validly existing as a corporation, partnership or limited liability company in good standing under the laws of the jurisdiction of its organization, has corporate, partnership or limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation, partnership or limited liability company 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 or be in good standing would not result in a Material Adverse Effect; except as stated in the Prospectus, all of the issued and outstanding shares of capital stock or partnership or limited liability company interests of each Significant Subsidiary has been duly authorized and are validly issued, fully paid and non-assessable and, to the best of our knowledge, are owned by the Operating Partnership, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and none of the outstanding shares of capital stock or partnership or limited liability company interests of any Significant Subsidiary were issued in violation of preemptive or other similar rights of any securityholder of such Significant Subsidiary. (6) The Distribution Agreement has been duly authorized, executed and delivered by the Operating Partnership. (7) The Indenture has been duly authorized, executed and delivered by the Operating Partnership and (assuming due authorization, execution and delivery thereof by the applicable Trustee) constitutes a valid and legally binding agreement of the Operating Partnership, B-1 enforceable against the Operating Partnership in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any debt securities issued under the Indenture that are payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States. (8) The Notes have been duly authorized by the Operating Partnership for offer, sale, issuance and delivery pursuant to the Distribution Agreement and, when issued, authenticated and delivered in the manner provided for in the Indenture and delivered against payment of the consideration therefor, will constitute valid and legally binding obligations of the Operating Partnership, enforceable against the Operating Partnership in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law), and except further as enforcement thereof may be limited by requirements that a claim with respect to any Notes payable in a foreign or composite currency (or a foreign or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of payments outside the United States; and the Notes, in the forms certified on the date hereof, are in the form contemplated by, and each registered holder thereof is entitled to the benefits of, the Indenture. (9) The Indenture and the Notes, in the forms certified on the date hereof, conform in all material respects to the statements relating thereto contained in the Prospectus and are in substantially the form filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement. (10) The information in the Prospectus under "Description of Debt Securities", "Description of the Notes", "Risk Factors " and "Certain United States Federal Income Tax Considerations," and the information in the Registration Statement under Item 15, to the extent that such information constitutes matters of law, summaries of legal matters, the Operating Partnership's partnership agreement or legal proceedings, or legal conclusions, has been reviewed by us and is correct in all material respects. (11) To the best of our knowledge, none of the entities comprising the Duke Group is in violation of its charter, by-laws, certificate of limited partnership, partnership agreement, articles of organization or operating agreement, and no default by a member of the Duke Group exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any Agreement and Instrument that is described or referred to in the Registration Statement or the Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement. (12) The execution, delivery and performance of the Distribution Agreement, the Indenture and the Notes and any other agreement or instrument entered into or issued or to be B-2 entered into or issued by the Operating Partnership in connection with the transactions contemplated in the Prospectus, the consummation of the transactions contemplated in the Prospectus (including the issuance and sale of the Notes and the use of the proceeds therefrom as described in the Prospectus) and the compliance by the Operating Partnership with its obligations thereunder have been duly authorized by all necessary partnership action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or repayment event under, or result in the creation or imposition of any lien, charge or encumbrance upon any assets, properties or operations of the Duke Group pursuant to, any Agreement and Instrument known to us, nor will such action result in any violation of the provisions of the partnership agreement or other organizational documents of a member of the Duke Group or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over any member of the Duke Group or any of their assets, properties or operations. (13) To the best of our knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation to which any member of the Duke Group is a party or to which the assets, properties or operations of any member of the Duke Group is subject, before or brought by any court or governmental agency or body, domestic or foreign, which might reasonably be expected to result in a Material Adverse Effect or which might reasonably be expected to materially and adversely affect the assets, properties or operations of the Duke Group or any of its subsidiaries, the performance by the Operating Partnership of its obligations under the Distribution Agreement, the Indenture or the Notes or the consummation of the transactions contemplated in the Prospectus. (14) All descriptions in the Prospectus of contracts and other documents to which any member of the Duke Group is a party are accurate in all material respects; and, to the best of our knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (15) To the best of our knowledge, there are no statutes or regulations that are required to be described in the Prospectus that are not described as required. (16) The Registration Statement has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been initiated or are pending or threatened by the Commission. (17) The Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, and each amendment or supplement to the Registration Statement and Prospectus, excluding the documents incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and supporting schedules included therein or omitted therefrom and the Trustee's Statement of Eligibility on Form T-1 (the "Form T-1"), as to which we express no opinion), complied as to form in all material respects B-3 with the requirements of the 1933 Act and the 1933 Act Regulations. (18) The documents incorporated by reference in the Prospectus (other than the financial statements and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations. (19) The Indenture has been duly qualified under the 1939 Act. (20) The Operating Partnership is not, and upon the issuance and sale of the Notes and the application of the net proceeds therefrom as described in the Prospectus will not be, an "investment company" within the meaning of the 1940 Act. (21) The Notes, in the forms certified on the date hereof, will be excluded or exempted under, or beyond the purview of, the Commodity Exchange Act and the Commodity Exchange Act Regulations. (22) No filing with, or approval, authorization, consent, license, registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the due authorization, execution and delivery by the Operating Partnership of the Distribution Agreement, the Indenture and the Notes or for the performance by the Operating Partnership of the transactions contemplated in the Distribution Agreement, the Indenture or the Prospectus, except such as have been previously made, obtained or rendered, as applicable. (23) 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" through the 1993 taxable year, the proposed methods of operation of the Company, the Operating Partnership and the Services Partnership since and including 1994, as described in the Registration Statement and the Prospectus Supplement and as represented by the Company, the Operating Partnership and the Services Partnership has permitted and will permit the Company to qualify and to continue to qualify to be taxed as a "real estate investment trust" for all years since and including 1994 and for its current and subsequent taxable years. Nothing has come to our attention that would lead us to believe that the Registration Statement or any post-effective amendment thereto (except for financial statements, supporting schedules and other financial data included therein or omitted therefrom and for the Form T-1, as to which we make no statement), at the time the Registration Statement or any post-effective amendment thereto (including the filing of the Operating Partnership's Annual Report on Form 10-K with the Commission) became effective [or at the date of any agreement of the applicable Agent(s) to purchase Notes from the Operating Partnership as principal], contained an untrue statement of a 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 (except for financial statements, supporting schedules and other financial data included therein or omitted therefrom, as to which we make no statement), at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the date hereof, 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 B-4 circumstances under which they were made, not misleading. B-5 EXHIBIT C FORM OF ACCOUNTANT'S COMFORT LETTER PURSUANT TO SECTION 5(d) We have audited the consolidated balance sheets of Duke-Weeks Realty Corporation (the Company) and subsidiaries as of December 31, 2000 and 1999 and the related consolidated statements of operations, cash flows and shareholders' equity for each of the years in the three-year period ended December 31, 2000, and the related financial statement schedule, all included in the Company's annual report on Form 10-K for the year ended December 31, 2000 and incorporated by reference in the registration statement (No. 333-37920) on Form S-3 filed by the Company under the Securities Act of 1933 (the Act); our report with respect thereto is also incorporated by reference in that registration statement. We have also audited the consolidated balance sheets of Duke-Weeks Realty Limited Partnership (the Operating Partnership) and subsidiaries as of December 31, 2000 and 1999 and the related consolidated statements of operations, cash flows and partners' equity for each of the years in the three-year period ended December 31, 2000, and the related financial statement schedule, all included in the Operating Partnership's annual report on Form 10-K for the year ended December 31, 2000 and incorporated by reference in the registration statement (No. 333-37920) on Form S-3 filed by the Company under the Act; our report with respect thereto is also incorporated by reference in that registration statement. The registration statement, as amended on June 13, 2000, includes the prospectus dated June 13, 2000, prospectus supplements dated January 29, 2001, February 28, 2001 and June 5, 2001, and other filings incorporated by reference through the date of this letter, and is herein referred to as the Registration Statement. In connection with the Registration Statement: 1. We are independent certified public accountants with respect to the Company and the Operating Partnership within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Securities and Exchange Commission (the SEC). 2. In our opinion, the consolidated financial statements and financial statement schedule of the Company and the Operating Partnership audited by us and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the Securities Exchange Act of 1934 and the related rules and regulations adopted by the SEC. 3. We have not audited any financial statements of the Company or the Operating Partnership as of any date or for any period subsequent to December 31, 2000; although we have conducted audits for the year ended December 31, 2000, the purpose (and therefore the scope) of the audits were to enable us to express an opinion on the consolidated financial statements of the Company and the Operating Partnership as of December 31, 2000 and for the year then ended, but not on the consolidated financial statements for any interim period within that year. Therefore, we are unable to and do not express any opinion on the March 31, 2001 and 2000 unaudited condensed consolidated financial statements of the Company included in the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2001, incorporated by reference in the Registration Statement, or on the financial position, results of operations, or cash flows of the Company as of any date or for any period subsequent to December 31, 2000. We are also unable to and do not express any opinion on the March 31, 2001 and 2000 unaudited condensed consolidated financial statements of the Operating Partnership included in the Operating Partnership's quarterly report on Form 10-Q for the quarter ended March 31, 2001, incorporated by reference in the Registration Statement, or on the financial position, results of operations, or cash flows of the Operating Partnership as of any date or for any period subsequent to December 31, 2000. C-1 4. For purposes of this letter, we have read the 2001 minutes of meetings of the Board of Directors of the Company and its subsidiaries as set forth in the minute books at June 5, 2001 (minutes of the Company's April meetings of the Board of Directors and its committees were not available), officials of the Company having advised us that the minutes of all such meetings through that date were set forth therein, with the exception of the April meetings. We have also been advised that there were no minutes of meetings related to the Operating Partnership. We have carried out other procedures to June 5, 2001 as follows (our work did not extend to the period from June 6, 2001 to June 8, 2001, inclusive): a. With respect to the three-month periods ended March 31, 2001 and 2000, we have-- (i) Performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, INTERIM FINANCIAL INFORMATION, on the unaudited condensed consolidated financial statements for these periods included in the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2001 and the Operating Partnership's quarterly report on Form 10-Q for the quarter ended March 31, 2001, incorporated by reference in the Registration Statement. (ii) Inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the unaudited condensed consolidated financial statements referred to in 4a(I) comply as to form in all material respects with the applicable accounting requirements of the Securities Exchange Act of 1934 as it applies to Form 10-Q and the related rules and regulations adopted by the SEC. b. With respect to the period from April 1, 2001 to April 30, 2001, we have: (i) Read the incomplete unaudited condensed consolidated financial statements of the Company and the Operating Partnership for April of both 2001 and 2000 furnished to us by the Company (incomplete in that the financial statements omit the statements of cash flows and all disclosures as required by accounting principles generally accepted in the United States of America), officials of the Company having advised us that no such financial statements as of any date or for any period subsequent to April 30, 2001 were available. (ii) Inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the incomplete unaudited condensed consolidated financial statements referred to in 4b(I) are stated on a basis substantially consistent with that of the audited consolidated financial statements of the Company and the Operating Partnership incorporated by reference in the Registration Statement. The foregoing procedures do not constitute an audit conducted in accordance with auditing standards generally accepted in the United States of America. Also, they would not necessarily reveal matters of significance with respect to the comments in the following paragraph. Accordingly, we make no representations about the sufficiency of the foregoing procedures for your purposes. 5. Nothing came to our attention as a result of the foregoing procedures, however, that caused us to believe that-- a. (i) Any material modifications should be made to the unaudited condensed consolidated financial statements described in 4a(i), incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America. C-2 (ii) The unaudited condensed consolidated financial statements described in 4a(i) do not comply as to form in all material respects with the applicable accounting requirements of the Securities Exchange Act of 1934 as it applies to Form 10-Q and the related rules and regulations adopted by the SEC. b. (i) At April 30, 2001, there was any change in capital stock or partners' units, increase in debt, or decrease in shareholders' or partners' equity of the Company or the Operating Partnership as compared with the amounts shown in the March 31, 2001 unaudited condensed consolidated balance sheets of the Company or the Operating Partnership, both incorporated by reference in the registration statement, or (ii) for the period from April 1, 2001 to April 30, 2001, there were any decreases, as compared with the corresponding period of the previous year, in revenues, net income or Funds From Operations (as defined in the registration statement) of the Company or the Operating Partnership, except for the effects of the Company's quarterly dividends to its shareholders and the Operating Partnership's quarterly distributions to its partners, the issuance of 48,483 common shares and 64,696 common units, an increase in debt of approximately $131 million resulting from the assumption of $107 million of mortgage notes, mortgage note payments of $6 million and borrowings of $30 million on the Company's lines of credit, and except in all instances for changes, increases or decreases that the registration statement discloses have occurred or may occur. 6. As mentioned in 4b, officials of the Company have advised us that no consolidated financial statements as of any date or for any period subsequent to April 30, 2001 are available; accordingly, the procedures carried out by us with respect to changes in financial statement items after April 30, 2001 have, of necessity, been even more limited than those with respect to the periods referred to in 4. We have made inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding whether (A) at June 5, 2001, there was any change in the capital stock or partners' units, increase in debt, or decrease in shareholders' or partners' equity of the consolidated companies as compared with amounts shown in the March 31, 2001 unaudited condensed consolidated balance sheets of the Company or the Operating Partnership, both incorporated by reference in the Registration Statement or (B) for the period from April 1, 2001 to June 5, 2001, there were any decreases, as compared with the corresponding period in the preceding year, in revenues, net income or Funds From Operations (as defined in the Registration Statement) of the Company and its subsidiaries or the Operating Partnership and its subsidiaries. On the basis of these inquiries and our reading of the minutes as described in 4, nothing came to our attention that caused us to believe that there was any such change, increase or decrease, except for the issuance of 233,377 common shares and 99,788 partner units and the effects of the Company's quarterly dividends to its shareholders and the Operating Partnership's quarterly distribution to its partners, and except in all instances for changes, increases or decreases that the Registration Statement discloses have occurred or may occur. 7. This letter is solely for the information of the addressees and to assist the underwriters in conducting and documenting their investigation of the affairs of the Company and the Operating Partnership in connection with the offering of the securities covered by the Registration Statement, and it is not to be used, circulated, quoted or otherwise referred to within or without the underwriting group for any purpose, including but not limited to, the registration, purchase or sale of securities, nor is it to be filed with or referred to, in whole or in part in the Registration Statement or any other document, except that reference may be made to it in the distribution agreement or in any list of closing documents pertaining to the offering of the securities covered by the Registration Statement. C-3 EX-4 4 a2056569zex-4.txt EXHIBIT 4 ================================================================================ DUKE-WEEKS REALTY LIMITED PARTNERSHIP ISSUER TO BANK ONE TRUST COMPANY, N.A. TRUSTEE TENTH SUPPLEMENTAL INDENTURE DATED AS OF JUNE 8, 2001 $150,000,000 OF MEDIUM-TERMS NOTES DUE NINE MONTHS OR MORE FROM DATE OF ISSUE SUPPLEMENT TO INDENTURE, DATED AS OF SEPTEMBER 19, 1995, BETWEEN DUKE-WEEKS REALTY LIMITED PARTNERSHIP AND BANK ONE TRUST COMPANY, N.A. (SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF CHICAGO) ================================================================================ TENTH SUPPLEMENTAL INDENTURE, dated as of June 8, 2001, between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the "Issuer"), having its principal offices at 600 East 96th Street, Suite 100, Indianapolis, IN 46240 and BANK ONE TRUST COMPANY, N.A. (successor in interest to 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 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126. 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 Tenth Supplemental Indenture to (i) create a series of debt securities, to be issued from time to time, in an aggregate principal amount not to exceed $150,000,000, entitled "Duke-Weeks Realty Limited Partnership Medium-Terms Notes Due Nine Months or More from Date of Issue" (the "Notes"); and (ii) establish the form and the terms and conditions of such Notes. WHEREAS, the Board of Directors of Duke-Weeks Realty Corporation, the general partner of the Issuer, acting through authority delegated to certain of its executive officers, has approved the creation of the Notes and the form, terms and conditions thereof. WHEREAS, the consent of Holders to the execution and delivery of this Tenth Supplemental Indenture is not required, and all other actions required to be taken under the Original Indenture with respect to this Tenth 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 Tenth 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. "FIXED RATE NOTES" means the Issuer's Fixed Rate Notes Due Nine Months or More from the Date of Issue, substantially in the form of Exhibit A-1 attached hereto. "FLOATING RATE NOTES" means the Issuer's Floating Rate Notes Due Nine Months or More from the Date of Issue, substantially in the form of Exhibit A-2 attached hereto. "INDENTURE" means the Original Indenture as supplemented by this Tenth Supplemental Indenture. "NOTES" means the Issuer's Medium-Term Notes Due Nine Months or More from Date of Issue. "PRICING SUPPLEMENT" means a pricing supplement to the Prospectus dated June 13, 2000, as supplemented by the Prospectus Supplement dated June __, 2001, setting forth the terms of the applicable Notes. SECTION 1.02. CREATION OF THE DEBT SECURITIES. In accordance with Section 301 of the Original Indenture, the Issuer hereby creates the Notes as a separate series of its debt securities issued pursuant to the Indenture. The Notes shall be issued in an aggregate principal amount not to exceed $150,000,000, or the equivalent thereof in other currencies. SECTION 1.03. FORM OF THE DEBT SECURITIES. The Fixed Rate Notes shall be substantially in the form attached as Exhibit A-1 hereto. The Floating Rate Notes shall be substantially in the form attached as Exhibit A-2 hereto. Each Note shall be issuable and transferable in fully registered book-entry form or certificated form as specified in the applicable Pricing Supplement. 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 Tenth Supplemental Indenture, and in particular, the following provisions shall be terms of the Notes: (a) The aggregate principal amount of the Notes that may be authenticated and delivered under the Indenture from time to time shall be up to $150,000,000 or the equivalent thereof in other currencies. (b) Each Note shall mature on a date which shall be nine months or more from the date of issue of such Note and shall be specified in the Pricing Supplement. (c) The interest rate or rates or the method of determination thereof, if any, the date or dates or the method of determination thereof from which such interest shall accrue, the date or dates on which such interest shall be payable, and the regular record date for the interest payable on any interest payment date, in each case for a particular Note, shall each be as specified in the Pricing Supplement. 2 (d) Unless stated to the contrary in the Pricing Supplement, the payment of principal (and premium, if any) and interest on, a Note on any day, if the Holder of this Note is DTC (or its nominee or other depository, a "Depository"), will be made in accordance with any applicable provisions of such written agreement between the Issuer and the Trustee as may be in effect from time to time. (e) Notes shall be issuable in denominations of (i) $1,000 and any amount in excess thereof which is an integral multiple of $1,000, if the Notes are denominated in U.S. Dollars, and (ii) if the Notes are denominated in a currency other than U.S. Dollars, the Notes will be issuable in a minimum denomination equivalent to U.S. $1,000, rounded to an integral multiple of 1,000 units of the currency in which the Notes are denominated, and in any larger amount in integral multiples of 1,000 units of that currency. (f) Unless stated to the contrary on the face of a Note and in the Pricing Supplement, such Note shall be issuable only in registered form without coupons in book-entry form, represented by one or more global notes recorded in the book-entry system maintained by DTC. If specified on the face thereof, Notes may be issued in certificated form issued to, and registered in the name of, the beneficial owner or its nominee. (g) The Notes shall constitute senior unsecured and unsubordinated obligations of the Issuer and will rank equally with all other unsecured and unsubordinated indebtedness of the Issuer from time to time outstanding. (h) There are no restrictive covenants pertaining to the Notes other than those contained in the Indenture. Unless stated to the contrary on the face of any Note and in the Pricing Supplement, the holders of the Notes shall have no special rights in addition to those provided in the Indenture upon the occurrence of any particular events. The Notes shall have no additional Events of Default in addition to the Events of Default set forth in the Indenture. (i) Unless stated to the contrary on the face of a Note and in the applicable Pricing Supplement, the Issuer may, from time to time, reopen a series of Notes and issue additional Notes with the same terms as Notes issued on earlier date. After such additional Notes are issued they will be fungible with the previously issued Notes to the extent specified in the applicable Pricing Supplement. 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 Tenth Supplemental Indenture 3 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. The Trustee is hereby instructed to authenticate and deliver, from time to time, the Notes, pursuant to the following procedures: (a) the procedures set forth in the Administrative Procedures attached as Exhibit D to the Distribution Agreement, as amended from time to time; and (b) each advice of settlement information with respect to any of the Notes issued pursuant to (a) above will be deemed an instruction by the Issuer authenticate and deliver such Notes. ARTICLE THREE MISCELLANEOUS PROVISIONS SECTION 3.01. RATIFICATION OF ORIGINAL INDENTURE. This Tenth 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 Tenth 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 Tenth 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 Tenth 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 Tenth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. This Tenth Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Tenth Supplemental Indenture and shall, to the extent applicable, be governed by such provisions. 4 SECTION 3.06. COUNTERPARTS. This Tenth Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 5 IN WITNESS WHEREOF, the parties hereto have caused this Tenth 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-WEEKS REALTY LIMITED PARTNERSHIP By: DUKE-WEEKS REALTY CORPORATION ------------------------------------ General Partner By: /s/ Matthew A. Cohoat ------------------------------------ Name: Matthew A. Cohoat Title: SVP & Controller Attest: /s/ Douglas E. Greer - ----------------------------------- Name: Douglas E. Greer Title: VP & Deputy General Counsel BANK ONE TRUST COMPANY, N.A., as Trustee By: __________________________ Name: Title: Attest: ____________________________________ Name: Title: STATE OF ___________ ) ) SS: COUNTY OF __________ ) On the ___________ day of __________ 2001, 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-WEEKS REALTY CORPORATION, the general partner of DUKE-WEEKS 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 STATE OF ___________ ) ) SS: COUNTY OF __________ ) On the __________ day of __________ 2001, 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 BANK ONE TRUST COMPANY, N.A., 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 EXHIBIT A-1 [insert if global security] [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 CUSIP NO. ____________ $_________ DUKE-WEEKS REALTY LIMITED PARTNERSHIP MEDIUM-TERM NOTE (DUE NINE MONTHS OR MORE FROM DATE OF ISSUE) (FIXED RATE) Registered No. FXR- Original Issue Date: Principal Amount: $ Maturity Date: Designation: Fixed Rate Medium-Term Interest Rate: Notes Due Specified Currency: |_| U.S. Dollars |_| Other A-1-1 Dual Currency Note: |_| Yes |_| No Issue Price as a percentage of Principal Exchange Rate Agent (if other Amount: than Bank One Trust Company, N.A.): Interest Payment Dates: Regular Record Dates: Fifteenth calendar day (whether or not a Business Day) prior to the corresponding Interest Payment Date Original Issue Discount Note: Total Amount of OID: |_| Yes |_| No Redemption Date (s) (including any applicable Redemption Price(s): regular or special record dates): Stated Maturity Extension Option: Extension Period(s) and Final |_| Yes |_| No Maturity (only applicable if option to extend stated maturity): Repurchase Price(s): Repurchase Date(s) (including any applicable regular or special record dates) |_| Option of the Issuer |_| Option of the Holder Basis for Interest Rate During Extension Period (only applicable if option to extend stated maturity): Currency Indexed Note (check if yes): Amortizing Note (check if yes): (if yes, see attachment) (if yes, see attachment) Form: Other Terms: |_| Book Entry |_| Certificated A-1-2 Duke-Weeks 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 [Insert if the Security is to be a certificated security - _____,] [Insert if the Security is to be a Global Security - Cede & Co., as nominee for the Depository Trust Company], or its registered assigns, the Principal Amount stated above on the Maturity Date, and to pay interest thereon on the Interest Payment Dates specified above on such Principal Amount at the Interest Rate specified above from the Interest Payment Date next preceding the date of authentication of this Note to which interest has been paid on the Notes, unless the date of authentication of this Note is a date to which interest has been paid, in which case from the date of authentication of this Note, or unless no interest has been paid on the Notes, in which case from the Original Issue Date specified above, until payment of said Principal Amount has been made or duly provided for. Notwithstanding the foregoing, if the date of authentication of this Note is after a Regular Record Date specified above and before the next following Interest Payment Date, this Note shall bear interest from such Interest Payment Date, unless the Issuer shall default in the payment of interest due on such Interest Payment Date, in which case this Note shall bear interest from the next preceding Interest Payment Date to which interest has been paid on the Notes, or unless no interest has been paid on the Notes, in which case this Note shall bear interest from the Original Issue Date. If the Interest Payment Date, other than any Interest Payment Date that is also the Maturity Date of this Note, is not a Business Day, the Interest Payment Date will be postponed until the next day that is a Business Day and interest will continue to accrue to such day that is a Business Day. Unless otherwise specified on the face hereof, the "Interest Payment Dates" shall be May 1 and November 1 of each year. The "Regular Record Dates" shall be April 15 for a May 1 interest payment date, October 15 for a November 1 interest payment date and the date that is 15 calendar days before any other interest payment date, whether or not those dates are Business Days. The interest so payable on any Interest Payment Date will be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date, unless the Original Issue Date is after a Regular Record Date and before the next following Interest Payment Date, in which case interest will be paid on the Interest Payment Date following the next succeeding Regular Record Date to the Person in whose name the Note is registered at the close of business on such next succeeding Regular Record Date, unless the Issuer shall default in the payment of interest due on such Interest Payment Date, in which case such defaulted interest shall be paid to the Person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established in accordance with the Indenture, PROVIDED, HOWEVER, that interest payable at the Maturity Date will be payable to the person to whom principal is payable. Unless otherwise specified on the face hereof, payments of principal of (and premium, if any) and interest on this Note will be made in the applicable Specified Currency, PROVIDED, HOWEVER, that if this Note is denominated in a Specified Currency other than United States dollars (a "Foreign Currency Note") payments of principal of (and premium, if any) and interest hereon will A-1-3 [Insert if the Security is to be a Global Security - be made in United States dollars unless the beneficial holder hereof gives notice to the Depositary that it elects to receive payments in such Specified Currency. Such notice must be given by the beneficial holder of this Note to the participant of the Depositary through which its interest is held on or before the applicable Regular Record Date, in the case of a payment of interest, and on or before the sixteenth day, whether or not a Business Day, before the Stated Maturity, in the case of principal or premium, of the beneficial owner's election to receive all or a portion of any payment in a Specified Currency. The participant must notify the Depositary of any election on or before the third business day after the Regular Record Date. The Depositary will notify the Paying Agent of the election, the portion of the payment to be made by the Paying Agent in the Specified Currency and the applicable wire transfer instructions, on or before the fifth Business Day after the Regular Record Date. If complete instructions are received by the participant and forwarded to the Depositary, and forwarded by the Depositary to the Paying Agent, on or before the relevant dates, the beneficial owner of this Note will receive payments in the Specified Currency. In such event, the Paying Agent will pay the beneficial holder directly. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of such revocation must be received by the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be.] [Insert if the Security is to be a Certificated Security - be made in the applicable Specified Currency unless the Holder hereof elects to receive all payments in respect hereof in United States dollars by delivery of a written request to the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be. Such election may be in writing (mailed or hand delivered) or by cable, telex or other form of facsimile transmission. A Holder of such a Note may elect to receive payment in United States dollars for all principal (and premium, if any) and interest payments and need not file a separate election for each payment. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of such revocation must be received by the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be.] Payment of the principal of (and premium, if any) and interest on this Note due at Maturity in United States dollars will be made in immediately available funds, provided that this Note is presented to the Trustee in time for the Trustee to make such payment in accordance with its normal procedures. [Insert if the Security is to be a Global Security - Payment of the principal of (and premium, if any) and interest (other than interest payable at Maturity) on this Note in United States dollars will be made by transfer of immediately available funds to the Depositary or its nominee.] A-1-4 [Insert if the Security is to be a Certificated Security - Payment of the principal of (and premium, if any) and interest on this Note due at Maturity, the Redemption Date or the Repurchase Date, in United States dollars will be made at the office or agency of the Issuer maintained for that purpose, which shall initially be the corporate trust office of the Trustee located in Chicago, Illinois, in immediately available funds. Payment of Interest on this Note other than at Maturity, , the Redemption Date or the Repurchase Date shall be made by United States dollar check mailed to the address of the Person entitled thereto as of the applicable Record Date, as such address shall appear in the Security Register; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if the Specified Currency is other than United States dollars, the equivalent thereof in the Specified Currency) or more in aggregate principal amount of Notes (whether having identical or different terms and provisions) will be entitled to receive interest payments on such Interest Payment Date by wire transfer of immediately available funds if such Holder has delivered appropriate wire transfer instructions in writing to the Trustee not less than 15 calendar days prior to such Interest Payment Date. Any such wire transfer instructions received by the Trustee shall remain in effect until revoked by such Holder..] All payments of principal (and premium, if any) and interest in a Specified Currency other than United States dollars will be made in the manner set forth on the reverse hereof. The Issuer agrees to indemnify the Holder of any Note against any loss incurred by such Holder as a result of any judgment or order being given or made against the Issuer for any amount due hereunder and such judgment or order requiring payment in a currency (the "Judgment Currency") other than the Specified Currency, and as a result of any variation between (i) the rate of exchange at which the Specified Currency amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Holder, on the date of payment of such judgment or order, is able to purchase the Specified Currency with the amount of the Judgment Currency actually received by such Holder, as the case may be. The foregoing indemnity constitutes a separate and independent obligation of the Issuer and continues in full force and effect notwithstanding any such judgment or order as aforesaid. The term "rate of exchange" includes any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency. 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-1-5 IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed manually or by facsimile by its authorized officers. Dated as of: ________ DUKE-WEEKS REALTY LIMITED PARTNERSHIP, as Issuer By: DUKE-WEEKS REALTY CORPORATION, as General Partner By: ____________________________________ Name: Title: By: ____________________________________ Name: Title: A-1-6 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. BANK ONE TRUSTCOMPANY, N.A. as Trustee By: ____________________________________ Authorized Officer A-1-7 [REVERSE OF NOTE] DUKE-WEEKS REALTY LIMITED PARTNERSHIP MEDIUM-TERM NOTE (DUE NINE MONTHS OR MORE FROM DATE OF ISSUE) (FIXED RATE) This security is one of a duly authorized issue of debentures, notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter called the "Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture dated as of September 19, 1995 (hereinafter called the "Indenture"), duly executed and delivered by the Issuer to Bank One Trust Company, N.A. (successor in interest to The First National Bank of Chicago), as Trustee (hereinafter called the "Trustee," which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), to which the Indenture and all indentures supplemental thereto relating to this security reference is hereby made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), and may otherwise vary as provided in the Indenture or any indenture supplemental thereto. This Note is one of a series designated as "Medium-Term Notes Due Nine Months or More from Date of Issue" (herein referred to as the "Notes") of the Issuer, of up to $150,000,000 in aggregate principal amount. All terms used in this Note which are defined in the Indenture and which are not otherwise defined in this Note shall have the meanings assigned to them in the Indenture. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and the Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Interest payments for this Note will include interest accrued from and including the last date in respect of which interest has been paid or duly provided for (or from and including the Original Issue Date if no interest has been paid or provided for) to but excluding the Interest Payment Dates. Interest payments for this Note shall be computed and paid on the basis of a 360-day year of twelve 30-day months. FORM OF NOTES DUAL CURRENCY NOTES. This Note may be issued as a Note in which the Issuer has a one-time option to pay the principal, premium, if any, and interest, if any, on this Note in an optional currency specified on the face hereof under "Other Terms" that is a different currency A-1-8 from the Specified Currency of this Note ("Dual Currency Notes"). The Issuer shall provide the Holders two Business Days written notice of its exercise of such option, which such exercise shall be irrevocable. Specific information pertaining to Dual Currency Notes shall be included above under "Other Terms," and shall include, without limitation, Specified Currency for the dual currency note: o the Specified Currency; o the Optional Payment Currency; o the Designated Exchange Rate; o the Option Election Date; and o the Interest Payment Dates for Dual Currency Notes. The amounts payable and the method for calculating these amounts with respect to Dual Currency Notes and any additional terms and conditions of any issue of Dual Currency Notes will be specified on the face hereof. EXTENDIBLE NOTES. This Note may be issued as a Note in which the Issuer has the option to extend the Notes' stated Maturity Date for one or more whole years up to a date set forth on the face hereof ("Extendible Notes"). In the event the Issuer elects to extend the Extendible Notes, the Issuer must notify the Trustee no less than 45 nor more than 60 calendar days prior to the Extendible Notes' original stated Maturity Date. The Trustee will notify the Holder of the Issuers extension of the Maturity by first class mail. The notice must specify the Extendible Notes' new Maturity Date, the interest rate applicable to the extension period and any applicable redemption provisions. The interest rate may be increased for the extension period if the Issuer notifies the Trustee prior to 10:00 a.m., New York City time, on the twentieth calendar day before the extended Extendible Notes are scheduled to mature. The Trustee will send notice to the Holders in a manner agreed upon by the Trustee and the Issuer. This increased interest rate may not be revoked. In the event the Issuer extends the period Maturity of the Extendible Notes, the Holder has the option to require the Issuer to repay such Extendible Notes on the Maturity Date then in effect at a price equal to the principal amount of the Extendible Notes plus any accrued interest to such date. In order to exercise this option the Holder must notify the Trustee no less than 25 nor more than 60 calendar days prior to the date the Extendible Notes are scheduled to Mature. Such notice may be made by delivering to the Trustee the Extendible Notes with the attached "Option to Elect Repayment" form completed, or a letter from a broker/dealer, bank or trust company notifying the Trustee of the Holder's intent to redeem its Extendible Notes and guaranteeing that the Extendible Notes and the attached "Option to Elect Repayment" form will be delivered no later than five Business Days after the date set for redemption. The Holder may revoke its election to be repaid at any time before 3:00 p.m., New York City time, on the A-1-9 twentieth calendar day prior to the date the Extendible Notes are scheduled to mature. ORIGINAL ISSUE DISCOUNT NOTES. This Note may be issued as a Note in which the issue price (set forth on the face hereof) is less than 100% of the principal amount thereof, (i.e. par) by more than a percentage equal to the product of 0.25% and the number of full years to the Maturity Date ("Original Issue Discount Notes"). Original Issue Discount Notes may not bear any interest currently or may bear interest at a rate that is below market rates at the time of the issuance. The difference between the issue price of an Original Issue Discount Note and par is referred to as the "Discount." In the event of redemption, repayment or acceleration of Maturity of an Original Issue Discount Note, the amount payable to the Holder will be equal to the sum of: o the issue price (increased by any accruals of Discount) and, in the event of any redemption of the applicable Original Issue Discount Note, if applicable, multiplied by the initial redemption percentage (as adjusted, if applicable); and o any unpaid interest accrued on the Original Issue Discount Note to the date of the redemption, repayment or acceleration of the Maturity, as the case may be. For purposes of determining the amount of Discount that has accrued as of any date on which a redemption, repayment or acceleration of Maturity occurs for an Original Issue Discount Note, a Discount will be accrued using a constant yield method. The constant yield will be calculated using a 30-day month, 360-day year convention, a compounding period that, except for the Initial Period (as defined below), corresponds to the shortest period between Interest Payment Dates for the applicable Original Issue Discount Note (with ratable accruals within a compounding period), a coupon rate equal to the initial coupon rate applicable to the Original Issue Discount Note and an assumption that the Maturity of an Original Issue Discount Note will not be accelerated. If the period from the date of issue to the first Interest Payment Date for an Original Issue Discount Note (the "Initial Period") is shorter than the compounding period for the Original Issue Discount Note, a proportionate amount of the yield for an entire compounding period will be accrued. If the Initial Period is longer than the then the compounding, then the period will be divided into a regular compounding period and a short with the short period being treated as provided in the preceding sentence. The accrual of the applicable Discount may differ from the accrual of original issue discount for purposes of the Internal Revenue Code of 1986 (the "Code"), as amended, certain Original Issue Discount Notes may not be treated as having original issue discount within the meaning of the Code, and notes other than Original Issue Discount Notes may be treated as issued with original issue discount for federal income tax purposes. GENERAL INFORMATION REGARDING THE NOTES CERTAIN DEFINITIONS. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other than United States dollars, such day must not be A-1-10 a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center (as defined below) of the country issuing the Specified Currency (or, if the Specified Currency is Euro, such day must be a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open). "Principal Financial Center" means the capital city of the country issuing the Specified Currency, except that with respect to United States dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, Milan, Johannesburg and Zurich, respectively. REDEMPTION BY THE ISSUER. Unless one or more Redemption Dates is specified on the face hereof, this Note shall not be redeemable at the option of the Issuer before the Maturity Date specified on the face hereof. If one or more Redemption Dates is so specified, this Note is subject to redemption on any such date at the option of the Issuer, upon notice by first-class mail, mailed not less than 30 days nor more than 60 days (unless otherwise specified on the face hereof) prior to the applicable Redemption Date specified in such notice, at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Note), together in the case of any such redemption with accrued interest to the Redemption Date. Unless otherwise specified on the face hereof, the Issuer may elect to redeem less than the entire principal amount hereof. REPURCHASE AT THE OPTION OF THE HOLDER. Unless one or more Repurchase Dates at the option of the Holder is specified on the face hereof, this Note shall not be repayable at the option of the Holder on any date prior to the Maturity Date specified on the face hereof. If one or more Repurchase Dates is so specified, this Note is subject to repurchase on any such date at the option of the Holder at the applicable Repurchase Price specified on the face hereof (expressed as a percentage of the principal amount of this Note), together in the case of any such repayment with accrued interest to the Repurchase Date, but interest installments whose Stated Maturity is prior to the Repurchase Date will be payable to the Holder of this Note, or one or more Predecessor Notes, of record at the close of business on the relevant Regular Record Dates referred to on the face hereof. For this Note to be repaid at the option of the Holder, the Trustee must receive at the principal office of its Corporate Trust Department in Chicago, Illinois, at least 30 days but not more than 60 days (unless otherwise specified on the face hereof) prior to the Repurchase Date on which this Note is to be repaid: (i) appropriate wire instructions; and (ii) either (a) the Note with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed, or (b) a telegram, telex, facsimile transmission or 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: (1) the name of the holder of the Note; (2) the principal amount of the Note; A-1-11 (3) the portion of the principal amount of the Note to be repurchased; (4) the certificate number or a description of the tenor and terms of the Note; (5) a statement that the option to elect repurchase is being exercised; and (6) [insert if certificated note][a guarantee that the Note to be repaid with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed will be received by the Trustee within five Business Days. The Trustee must actually receive the Note and form duly completed by the fifth Business Day.] [insert if global security] [The above instructions shall be delivered to the Depositary who will forward them to the Trustee.] Exercise of the repurchase option by the Holder of a Note shall be irrevocable. The Holder of a Note may exercise the repurchase option for less than the entire principal amount of the Note provided that the principal amount of the Note remaining outstanding after repurchase is an Authorized Denomination. No transfer or exchange of any Note will be permitted after exercise of a repurchase option. If a Note is to be repurchased in part, no transfer or exchange of the portion of the Note to be repurchased will be permitted after exercise of a repurchase option. All questions as to the validity, eligibility, including time of receipt, and acceptance of any note for repurchase will be determined by the Issuer and its determination will be final, binding and non-appealable. [Insert if the Security is to be a Certificated Security - In the event of redemption or repayment of this Note in part only, a new Note or Notes of this series and of like tenor and for a principal amount equal to the unredeemed or unrepaid portion will be delivered to the registered Holder upon the cancellation hereof.] [Insert if the Security is to be a Global Security - In the event of redemption or repayment of this Note in part only, the Principal Amount shall be reduced.] CALCULATION OF EXCHANGE RATES. If this is a Foreign Currency Note to be paid in United States dollars, the United States dollar amount to be received in respect hereof will be based upon the exchange rate as determined by the Exchange Rate Agent based on the most favorable firm bid quotation for United States dollars received by such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the applicable payment date from three recognized foreign exchange dealers in The City of New York selected by the Exchange Rate Agent and approved by the Issuer (one of which may be the Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Specified Currency payable on such payment date in respect of this Note. If three quoting dealers are not available then two dealers will be used. If no such bid quotations are available, payments will be made in the Specified Currency, unless such A-1-12 Specified Currency is unavailable due to the imposition of exchange controls or to other circumstances beyond the Issuer's control, in which case the Issuer will be entitled to make payments in respect hereof in United States dollars as provided in the manner set forth below. All currency exchange costs will be borne by the Holder hereof by deductions from such payments. The determination of the exchange rate pursuant to the provisions of this Section is referred to herein as the "Market Exchange Rate." PAYMENTS IN SPECIFIED CURRENCIES. If a Holder is to receive payments in a Specified Currency other than United States dollars as described on the face hereof, payments of principal of (and premium, if any) and interest will be paid in immediately available funds by wire transfer to an account maintained by the Holder with a bank designated by the Holder (which in the case of Global Securities will be the Depositary or its nominee) on or prior to the Regular Record Date or at least 15 days prior to Maturity, as the case may be, in the case of Certificated Securities or, in the case of Global Securities, in the manner specified on the face hereof in the third paragraph thereof following the summary of terms, provided that such bank has the appropriate facilities for such a payment in the Specified Currency, PROVIDED, HOWEVER, that with respect to payments of principal and premium, if any, and interest at Maturity this Note is presented to the Trustee in time for the Trustee to make such payment in accordance with its normal procedures, which shall require presentation no later than two Business Days prior to Maturity in order to ensure the availability of immediately available funds in the Specified Currency at Maturity. If payment on this Note is required to be made in a Specified Currency other than United States dollars and such currency is unavailable in the good faith judgment of the Issuer due to the imposition of exchange controls or to other circumstances beyond the Issuer's control, or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments with respect to this Note shall be made in United States dollars until such currency is again available or so used. The amount so payable on any date in such Specified Currency shall be converted into United States dollars at a rate determined by the Exchange Rate Agent on the basis of the Market Exchange Rate on the second Business Day prior to such payment, or, if the Market Exchange Rate is not then available, the most recently available Market Exchange Rate or as otherwise determined in good faith by the Issuer if the foregoing is impracticable. If this is a Foreign Currency Note, in the event of an official redenomination of such foreign currency (including, without limitation, an official redenomination of a foreign currency that is a composite currency) the obligations of the Issuer with respect to payments on this Note denominated in such currency shall, in all cases, be deemed immediately following such redenomination to provide for the payment of that amount of redenominated currency representing the amount of such obligations immediately before such redenomination. No adjustment will be made to any amount payable under this Note as a result of (a) any change in the value of a foreign currency relative to any other currency due solely to fluctuations in exchange rates or (b) any redenomination of any component currency of any composite currency (unless such composite currency is itself officially redenominated). A-1-13 ACCELERATION UPON AN EVENT OF DEFAULT. If an Event of Default with respect to Notes of this series shall occur and be continuing, the Principal Amount of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Unless otherwise specified on the face hereof, if any Original Issue Discount Note (as defined below) is redeemed or repurchased by the Issuer or repurchased at the option of the Holder, each as described above, or if the principal of any Original Issue Discount Note is declared to be due and payable immediately pursuant to this paragraph, the amount of principal due and payable with respect to this Note shall be limited to the sum of the aggregate principal amount of this Note multiplied by the Issue Price (expressed as a percentage of the aggregate principal amount) plus the original issue discount accrued from the date of issue to the date of redemption, repayment or declaration, as applicable, which accrual shall be calculated using the "interest method" (computed in accordance with generally accepted accounting principles) in effect on the date of redemption, repurchase or declaration. Unless otherwise specified on the face hereof, an Original Issue Discount Note is a Note which has a stated redemption price at maturity that exceeds its Issue Price by at least 0.25% of the stated redemption price at maturity, multiplied by the number of full years from the Original Issue Date to the Maturity Date for this Note. MODIFICATION OF RIGHTS UNDER 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 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 A-1-14 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 interest on this security in the manner, at the respective times, at the rate and in the coin or currency herein prescribed. TRANSFERS OF NOTES. As provided in the Indenture and subject to certain limitations set forth therein and as may be set forth on the face hereof, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Issuer in any place where the principal of (and premium, if any) and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. [Insert if the Security is a Global Security - GLOBAL NOTES. This Note is a Global Note and shall be exchangeable for Notes registered in the names of Persons other than the Depositary with respect to this Global Note or its nominee only if (A) such Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for this Global Note or at any time ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, (B) the Issuer in its sole discretion executes and delivers to the Trustee a Issuer Order that this Global Note shall be exchangeable or (C) there shall have occurred and be continuing an Event of Default with respect to the Notes. If this Global Note is exchangeable pursuant to the preceding sentence, it shall be exchangeable for Notes issuable in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, registered in such names as such Depositary shall direct.] DENOMINATION. The Notes of this series are issuable, in the case of Notes denominated in United States dollars, in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes denominated in a Specified Currency other than United States dollars, in the authorized denominations set forth on the face hereof (in each case, an "Authorized Denomination"). EXCHANGE OF NOTES. As provided in the Indenture and subject to certain limitations set forth therein and as may be set forth on the face hereof, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. REGISTERED OWNER. Upon due presentment for registration of transfer of Securities A-1-15 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 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. GOVERNING LAW. 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. DEFINED TERMS. 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-1-16 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN - as tenants in common UNIF GIFT MIN -___________ Custodian COM ACT _______ TEN ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with right of under Uniform Gifts to survivorship and not as Minors tenants Act___________________ in common (State)
Additional abbreviations may also be used though not in the above list. A-1-17 ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ________________________________________________________________________________ ________________________________________________________________________________ (Please print or typewrite name and address including postal zip code of assignee) ________________________________________________________________________________ this Note and all rights thereunder hereby irrevocably constituting and appointing ________________________________________________________________________________ Attorney to transfer this Note on the books of the Trustee, with full power of substitution in the premises. Dated: _________________ ________________________________________ _________________ ________________________________________ Notice: The signature(s) on this Assignment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever. A-1-18 [OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to repay this Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at __________ ________________________________________________________________________________ (Please print or typewrite name and address of the undersigned) For this Note to be repaid, the Trustee must receive at its corporate trust office in Chicago, Illinois, currently located at 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, not more than 60 nor less than 30 calendar days prior to the Repayment Date, this Note with this "Option to Elect Repayment" form duly completed. If less than the entire principal amount of this Note is to be repaid, specify the portion hereof (which shall be increments of U.S. $1,000 or other integral multiple of an Authorized Denomination) (provided that any remaining principal amount shall be at least U.S. $1,000 or such other minimum Authorized Denomination) which the Holder elects to have repaid and specify the denomination or denominations (which shall be U.S. $1,000 or such other minimum Authorized Denomination) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid). Principal Amount to be Repaid: $ __________ ________________________________________ Notice: The signature(s) on this Option Dated: ___________________ to Elect Repayment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever.](1) - ---------- (1) This form applies to certificated Notes only. A-1-19 EXHIBIT A-2 [insert if global security] [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 CUSIP NO. ____________ $_________ DUKE-WEEKS REALTY LIMITED PARTNERSHIP MEDIUM-TERM NOTE (DUE NINE MONTHS OR MORE FROM DATE OF ISSUE) (FLOATING RATE) Registered No. R- Original Issue Date: Principal Amount: $ Maturity Date: Designation: Fixed Rate Medium-Term Interest Rate: Notes Due Specified Currency: Interest Reset Dates: |_| U.S. Dollars |_| Other Dual Currency Note: |_| Yes |_| No A-2-1 Issue Price as a percentage of Principal Exchange Rate Agent (if other Amount: than Bank One Trust Company, N.A.): Interest Payment Period: Index Currency: Initial Interest Rate: Index Maturity: Base Rate: Maximum Interest Rate: Spread: Minimum Interest Rate: Spread Multiplier: Designated LIBOR Page: |_| LIBOR Telerate Calculation Dates: |_| LIBOR Reuters Interest Payment Dates: Regular Record Dates: Fifteenth calendar day (whether or not a Business Day) prior to the corresponding Interest Payment Date Original Issue Discount Note: Total Amount of OID: |_| Yes |_| No Redemption Date (s) (including any applicable Redemption Price(s): regular or special record dates): Stated Maturity Extension Option: Extension Period(s) and Final |_| Yes |_| No Maturity (only applicable if option to extend stated maturity): Repurchase Price(s): Repurchase Date(s) (including any applicable regular or special record dates) |_| Option of the Issuer |_| Option of the Holder Basis for Interest Rate During Extension Period (only applicable if option to extend stated maturity): Currency Indexed Note (check if yes): Amortizing Note (check if yes): (if yes, see attachment) (if yes, see attachment) Form: Terms: |_| Book Entry |_| Certificated Other A-2-2 Duke-Weeks 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 [Insert if the Security is to be a certificated security - _____,] [Insert if the Security is to be a Global Security - Cede & Co., as nominee for the Depository Trust Company], or its registered assigns, the Principal Amount stated above on the Maturity Date, and to pay interest thereon on the Interest Payment Dates specified above on such Principal Amount at the Interest Rate specified above until the first Interest Reset Date specified above and thereafter in accordance with the applicable provisions set forth below from the Interest Payment Date next preceding the date of authentication of this Note to which interest has been paid on the Notes, unless the date of authentication of this Note is a date to which interest has been paid, in which case from the date of authentication of this Note, or unless no interest has been paid on the Notes, in which case from the Original Issue Date specified above, until payment of said Principal Amount has been made or duly provided for. Notwithstanding the foregoing, if the date of authentication of this Note is after a Regular Record Date specified above and before the next following Interest Payment Date, this Note shall bear interest from such Interest Payment Date, unless the Issuer shall default in the payment of interest due on such Interest Payment Date, in which case this Note shall bear interest from the next preceding Interest Payment Date to which interest has been paid on the Notes, or unless no interest has been paid on the Notes, in which case this Note shall bear interest from the Original Issue Date. If the Interest Payment Date, other than any Interest Payment Date that is also the Maturity Date of this Note, is not a Business Day, the Interest Payment Date will be postponed until the next day that is a Business Day and interest will continue to accrue to such day that is a Business Day; provided however, in the case of a LIBOR Note, if the next Business Day is in the following calendar month, the Interest Payment Date will be the preceding Business Day. The "Interest Payment Dates" shall be as specified on the face hereof. The "Regular Record Dates" shall be the date that is 15 calendar days before any Interest Payment Date, whether or not those dates are Business Days. The interest so payable on any Interest Payment Date will be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date, unless the Original Issue Date is after a Regular Record Date and before the next following Interest Payment Date, in which case interest will be paid on the Interest Payment Date following the next succeeding Regular Record Date to the Person in whose name the Note is registered at the close of business on such next succeeding Regular Record Date, unless the Issuer shall default in the payment of interest due on such Interest Payment Date, in which case such defaulted interest shall be paid to the Person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established in accordance with the Indenture, PROVIDED, HOWEVER, that interest payable at the Maturity Date will be payable to the person to whom principal is payable. Unless otherwise specified on the face hereof, payments of principal of (and premium, if any) and interest on this Note will be made in the applicable Specified Currency, PROVIDED, HOWEVER, that if this Note is denominated in a Specified Currency other than United States dollars (a "Foreign Currency Note") payments of principal of (and premium, if any) A-2-3 and interest hereon will [Insert if the Security is to be a Global Security - be made in United States dollars unless the beneficial holder hereof gives notice to the Depositary that it elects to receive payments in such Specified Currency. Such notice must be given by the beneficial holder of this Note to the participant of the Depositary through which its interest is held on or before the applicable Regular Record Date, in the case of a payment of interest, and on or before the sixteenth day, whether or not a Business Day, before the Stated Maturity, in the case of principal or premium, of the beneficial owner's election to receive all or a portion of any payment in a Specified Currency. The participant must notify the Depositary of any election on or before the third business day after the Regular Record Date. The Depositary will notify the Paying Agent of the election, the portion of the payment to be made by the Paying Agent in the Specified Currency and the applicable wire transfer instructions, on or before the fifth Business Day after the Regular Record Date. If complete instructions are received by the participant and forwarded to the Depositary, and forwarded by the Depositary to the Paying Agent, on or before the relevant dates, the beneficial owner of this Note will receive payments in the Specified Currency. In such event, the Paying Agent will pay the beneficial holder directly. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of such revocation must be received by the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be.] [Insert if the Security is to be a Certificated Security - be made in the applicable Specified Currency unless the Holder hereof elects to receive all payments in respect hereof in United States dollars by delivery of a written request to the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be. Such election may be in writing (mailed or hand delivered) or by cable, telex or other form of facsimile transmission. A Holder of such a Note may elect to receive payment in United States dollars for all principal (and premium, if any) and interest payments and need not file a separate election for each payment. Such election will remain in effect until revoked by written notice to the Trustee, but written notice of such revocation must be received by the Trustee on or prior to the applicable Regular Record Date or at least 15 days prior to Maturity, as the case may be.] Payment of the principal of (and premium, if any) and interest on this Note due at Maturity in United States dollars will be made in immediately available funds, provided that this Note is presented to the Trustee in time for the Trustee to make such payment in accordance with its normal procedures. [Insert if the Security is to be a Global Security - Payment of the principal of (and premium, if any) and interest (other than interest payable at Maturity) on this Note in United States dollars will be made by transfer of immediately available funds to the Depositary or its nominee.] A-2-4 [Insert if the Security is to be a Certificated Security - Payment of the principal of (and premium, if any) and interest on this Note due at Maturity, the Redemption Date or the Repurchase Date, in United States dollars will be made at the office or agency of the Issuer maintained for that purpose, which shall initially be the corporate trust office of the Trustee located in Chicago, Illinois, in immediately available funds. Payment of Interest on this Note, other than at Maturity, the Redemption Date or the Repurchase Date, shall be made by United States dollar check mailed to the address of the Person entitled thereto as of the applicable Record Date, as such address shall appear in the Security Register; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000 (or, if the Specified Currency is other than United States dollars, the equivalent thereof in the Specified Currency) or more in aggregate principal amount of Notes (whether having identical or different terms and provisions) will be entitled to receive interest payments on such Interest Payment Date by wire transfer of immediately available funds if such Holder has delivered appropriate wire transfer instructions in writing to the Trustee not less than 15 calendar days prior to such Interest Payment Date. Any such wire transfer instructions received by the Trustee shall remain in effect until revoked by such Holder.] All payments of principal (and premium, if any) and interest in a Specified Currency other than United States dollars will be made in the manner set forth on the reverse hereof. The Issuer agrees to indemnify the Holder of any Note against any loss incurred by such Holder as a result of any judgment or order being given or made against the Issuer for any amount due hereunder and such judgment or order requiring payment in a currency (the "Judgment Currency") other than the Specified Currency, and as a result of any variation between (i) the rate of exchange at which the Specified Currency amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which such Holder, on the date of payment of such judgment or order, is able to purchase the Specified Currency with the amount of the Judgment Currency actually received by such Holder, as the case may be. The foregoing indemnity constitutes a separate and independent obligation of the Issuer and continues in full force and effect notwithstanding any such judgment or order as aforesaid. The term "rate of exchange" includes any premiums and costs of exchange payable in connection with the purchase of, or conversion into, the relevant currency. The interest payable hereon on each Interest Payment Date will include accrued interest from the Original Issue Date or from the last date in respect of which interest has been paid on the Notes (subject to the applicable provisions set forth above), as the case may be, to, but excluding, such Interest Payment Date or Maturity Date, as the case may be. The interest rate in effect on the Notes from the Original Issue Date, to, but excluding, the first Interest Reset Date will be the Initial Interest Rate. Thereafter, the Notes will bear interest at a rate reset for each period ending on and excluding an Interest Reset Date and commencing on and including the immediately preceding Interest Reset Date (or, if none, the Original Issue Date) (each an "Interest Reset Period") determined by the Calculation Agent. The interest rate per annum on this Note for each Interest Reset Period shall be the Base Rate designated above (determined as set forth on the reverse hereof), in each case adjusted by the addition or subtraction of the Spread, if any, A-2-5 specified above and by the multiplication by the Spread Multiplier, if any, specified above. Accrued interest is calculated by multiplying the face amount hereof by an accrued interest factor. The accrued interest factor will be computed by adding the interest factors calculated for each day for which accrued interest is being calculated. Unless otherwise specified on the face hereof, the interest factor for each day is computed by dividing the interest rate in effect on that day by (i) the actual number of days in the year, in the case of the Treasury Rate Notes and CMT Rate Notes, or (ii) 360 days, in the case of all other Notes. The interest rate on a Note in effect on any day will be (i) if the day is an Interest Reset Date, the interest rate with respect to the Interest Determination Date relating to that Interest Reset Date; or (ii) if the day is not an Interest Reset Date, the interest rate with respect to the Interest Determination Date relating to the preceding Interest Reset Date. Notwithstanding the foregoing, the interest rate hereon shall not be greater than the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if any, shown above. In addition, the interest rate hereon shall in no event be higher than the maximum rate permitted by New York State law as the same may be modified by United States law of general application. 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-2-6 IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed manually or by facsimile by its authorized officers. Dated as of: ________ DUKE-WEEKS REALTY LIMITED PARTNERSHIP, as Issuer By: DUKE-WEEKS REALTY CORPORATION, as General Partner By: ____________________________________ Name: Title: By: ____________________________________ Name: Title: A-2-7 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. BANK ONE TRUST COMPANY, N.A. as Trustee By: ____________________________________ Authorized Officer A-2-8 [REVERSE OF NOTE] DUKE-WEEKS REALTY LIMITED PARTNERSHIP MEDIUM-TERM NOTE (DUE NINE MONTHS OR MORE FROM DATE OF ISSUE) (FLOATING RATE) This security is one of a duly authorized issue of debentures, notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter called the "Securities") of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture dated as of September 19, 1995 (hereinafter called the "Indenture"), duly executed and delivered by the Issuer to Bank One Trust Company, N.A. (successor in interest to The First National Bank of Chicago), as Trustee (hereinafter called the "Trustee," which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), to which the Indenture and all indentures supplemental thereto relating to this security reference is hereby made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), and may otherwise vary as provided in the Indenture or any indenture supplemental thereto. This Note is one of a series designated as "Medium-Term Notes Due Nine Months or More from Date of Issue" (herein referred to as the "Notes") of the Issuer, of up to $150,000,000 in aggregate principal amount. All terms used in this Note which are defined in the Indenture and which are not otherwise defined in this Note shall have the meanings assigned to them in the Indenture. The terms of the Notes include those stated in the Indenture and those made a part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and the Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Interest payments for this Note will include interest accrued from and including the last date in respect of which interest has been paid or duly provided for (or from and including the Original Issue Date if no interest has been paid or provided for) to but excluding the Interest Payment Dates. Interest payments for this Note shall be computed and paid on the basis of a 360-day year of twelve 30-day months. INTEREST RATE INTEREST RATE RESET. The rate of interest on this Note will be reset daily, weekly, monthly, quarterly, semi-annually, annually or as otherwise specified on the face hereof (each an "Interest Reset Date"), as specified on the face hereof. Unless otherwise specified on the face hereof, the Interest Reset Date will be, if this Note resets daily, each Business Day; if this Note resets weekly (unless the Base Rate on this Note is the Treasury Rate), Wednesday of each week; A-2-9 if this Note resets weekly and the Base Rate on this Note is the Treasury Rate, Tuesday of each week; if this Note resets monthly (unless the Base Rate on this Note is the Eleventh District Cost of Funds Rate), the third Wednesday of each month; if this Note is an Eleventh District Cost of Funds Rate Note, all of which reset monthly, the first calendar day of each month; if this Note resets quarterly, as specified on the face hereof; if this Note resets semi-annually, the third Wednesday of each of two months of each year, as specified on the face hereof; and if this Note resets annually, the third Wednesday of one month of each year, as specified on the face hereof; PROVIDED, HOWEVER, that the interest rate in effect from the date of issue to the first Interest Reset Date will be the Initial Interest Rate specified on the face hereof. If an Interest Reset Date for any Note would otherwise be a day that is not a Business Day, that Interest Reset Date will be postponed to the next Business Day. However, in the case of a Note whose interest will be determined in accordance with the provisions of the heading "Determination of LIBOR" below, if that Business Day is in the following calendar month, that Interest Reset Date will be the preceding Business Day. If a Treasury bill auction, as set forth and described in the definition of "Interest Determination Date" in this Note, will be held on any day that would otherwise be an Interest Reset Date for a Note whose interest will be determined in accordance with the provisions of the heading "Determination of Treasury Rate" below, then that Interest Reset Date will instead be the Business Day immediately following that auction date. CALCULATION OF BASE RATE. The Base Rate applicable to this Note will be calculated as set forth in the appropriate paragraph below. DETERMINATION OF CD RATE. Unless otherwise specified on the face hereof, if the Base Rate is the CD Rate, CD Rate means, with respect to any Interest Determination Date, the rate on that date for negotiable certificates of deposit having the Index Maturity specified on the face hereof, as published in H.15(519) prior to 9:00 a.m., New York City time, on the Calculation Date pertaining to that Interest Determination Date under the heading "CDs (secondary market)." The following procedures will be followed if the CD Rate cannot be determined as described in the immediately preceding sentence: (i) if by 9:00 a.m., New York City time, on the related Calculation Date such rate is not published in H.15(519), then the CD (i) Rate will be the rate on that Interest Determination Date for negotiable certificates of deposit of the Index Maturity designated on the face hereof as published in H.15 Daily Update under the heading "CDs (secondary market)"; (ii) if such rate is not published in H.15 (519) or H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date in the manner described in clause (i) above, then the Calculation Agent will determine the CD Rate to be the arithmetic mean of the secondary market offered rates as of 10:00 a.m., New York City time, on that Interest Determination Date, quoted by three leading non-bank dealers in negotiable U.S. dollar certificates of deposit in New York City for negotiable certificates of deposit in a denomination of $5,000,000 of major United States money-center banks of the highest credit standing with a remaining maturity closest to the Index Maturity designated on the face hereof. The Calculation Agent, after consultation with the Issuer, will select the three dealers referred to in the immediately preceding sentence; and A-2-10 (iii) if fewer than three dealers are quoting as mentioned in clause (ii) above, the CD Rate will be the CD Rate in effect during the prior interest period. DETERMINATION OF COMMERCIAL PAPER RATE. Unless otherwise specified on the face hereof, if the Base Rate is Commercial Paper Rate, Commercial Paper Rate means, with respect to any Interest Determination Date, the Money Market Yield (as defined below) of the rate on that date for commercial paper having the Index Maturity specified on the face hereof, as published in H.15(519) prior to 9:00 a.m., New York City time, on the Calculation Date pertaining to that Interest Determination Date under the heading "Commercial paper -- Nonfinancial." The following procedures will be followed if the Commercial Paper Rate cannot be determined as described in the immediately preceding sentence: (i) if such rate is not published in H.15(519) by 9:00 a.m., New York City time, on the Calculation Date, the Commercial Paper Rate will be the Money Market Yield of the rate on that Interest Determination Date for commercial paper having the Index Maturity designated on the face hereof, as published in H.15 Daily Update under the heading "Commercial paper -- Nonfinancial"; (ii) if such rate is not published in H.15(519) or H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date as described in clause (i) above, then the Calculation Agent will determine the Commercial Paper Rate to be the Money Market Yield of the arithmetic mean of the offered rates of three leading dealers of commercial paper in New York City as of 11:00 a.m., New York City time, on that Interest Determination Date for commercial paper having the Index Maturity specified on the face hereof placed for an industrial issuer whose bond rating is "AA", or the equivalent, from a nationally recognized rating agency, and the Calculation Agent, after consultation with the Issuer, will select the three dealers referred to in this clause (ii); and (iii) if fewer than three dealers selected by the Calculation Agent are quoting as described in clause (ii) above, the Commercial Paper Rate will be the Commercial Paper Rate in effect during the prior interest period. "H.15(519)" means the publication entitled "Statistical Release H.15(519), Selected Interest Rates," or any successor publication, published by the Board of Governors of the Federal Reserve System and available through the World Wide Web site of the Board of Governors of the Federal Reserve Systems at http://www.federalreserve.gov/releases/h15/current, or any successor site or publication. "H.15 Daily Update" means the daily update of H.15(519), available through the World Wide Web site of the Board of Governors of the Federal Reserve Systems at http://www.federalreserve.gov/releases/h15/update, or any successor site or publication. "Money Market Yield" means a yield (expressed as a percentage rounded to the nearest one-hundred thousandth of a percent) calculated in accordance with the following formula: A-2-11 Money Market Yield D x 360 ------------- X 100 = 360 - (D x M)
where "D" refers to the annual rate for commercial paper quoted on a bank discount basis and expressed as a decimal; and "M" refers to the actual number of days in the interest period for which interest is being calculated. DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. Unless otherwise specified on the face hereof, if the Base Rate is the Eleventh District Cost of Funds Rate, Eleventh District Cost of Funds Rate means, with respect to any Interest Determination Date, the rate equal to the monthly weighted average cost of funds for the calendar month immediately before such Interest Determination Date, as displayed on Telerate Page 7058 under the heading "11th District" as of 11:00 A.M., San Francisco time, on such Interest Determination Date. If the Eleventh District Cost of Funds Rate cannot be determined as described above, the Eleventh District Cost of Funds Rate shall be the FHLB Index for the calendar month preceding such Interest Determination Date. following procedures will apply in determining the Eleventh District Cost of Funds Rate : If the Federal Home Loan Bank of San Francisco fails to announce the cost of funds described above on or before the Interest Determination Date, the Eleventh District Cost of Funds Rate that takes effect on such Interest Reset Date will be the same as the rate of interest thereon in the prior interest period. DETERMINATION OF FEDERAL FUNDS RATE. Unless otherwise specified on the face hereof, if the Base Rate is Federal Funds Rate, Federal Funds Rate means, with respect to any Interest Determination Date, the rate on that date for Federal Funds as published in H.15(519) under the heading "Federal Funds (effective)," as such rate is displayed on Telerate Page 120, prior to 11:00 a.m., New York City time, on the Calculation Date pertaining to that Interest Determination Date under the heading "Federal funds (effective)." The following procedures will be followed if the Federal Funds Rate cannot be determined as described in the immediately preceding sentence: (i) if such rate is not published in H.15(519) by 11:00 a.m., New York City time, on the Calculation Date, the Federal Funds Rate will be the rate on that Interest Determination Date, as published in H.15 Daily Update under the heading "Federal funds (effective)"; (ii) if that rate is not published in either H.15 (519) or H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, then the Calculation Agent will determine the Federal Funds Rate to be the arithmetic mean of the rates for the last transaction in overnight Federal funds arranged by each of three leading brokers of Federal funds transactions in New York City prior to 11:00 a.m., New York time, on that Interest Determination Date, and the Calculation Agent, after consultation with the Issuer, will select the three brokers referred to in this clause (ii); and A-2-12 (iii) if fewer than three brokers selected by the Calculation Agent are quoting as described in clause (ii) above, the Federal Funds Rate will be the Federal Funds Rate in effect during the prior interest period. DETERMINATION OF LIBOR. If the Base Rate is LIBOR, LIBOR will be determined by the Calculation Agent in accordance with the following provisions: (i) with respect to an Interest Determination Date, LIBOR will be: (a) if the Designated LIBOR Page is LIBOR Telerate as specified on the face hereof, the rate for deposits in Index Currency having the Index Maturity, commencing on the second London Business Day immediately following that Interest Determination Date, as that rate appears on the Designated LIBOR Page as of 11:00 a.m., London time, on that Interest Determination Date or (b) if the Designated LIBOR Page is LIBOR Reuters as specified on the face hereof, the arithmetic mean of the offered rates for deposits in Index Currency having the Index Maturity, commencing on the second London Business Day immediately following such Interest Determination Date, which appear on the Designated LIBOR Page (or such other LIBOR page specified on the face hereof) as of 11:00 a.m., London time, on the Interest Determination Date, if at least two such offer rates appear on such Reuters Screen LIBOR Page. If neither LIBOR Reuters nor LIBOR Telerate is specified as the Designated LIBOR Page, LIBOR Telerate will be used. If the Designated LIBOR Page by its terms provides only for a single rate, that single rate will be used regardless of the foregoing provisions requiring more than one rate. In the case where (a) above applies, if no rate appears, or in the case where (b) above applies, if fewer than two offered rates appear, LIBOR in respect of the Interest Determination Date will be determined as if the parties had specified the rate in (ii) below; (ii) with respect to an Interest Determination Date on which this provision applies, LIBOR will be determined on the basis of the offered rates at which deposits in the Index Currency are offered by four major banks in the London interbank market selected by the Calculation Agent (after consultation with the Issuer) at approximately 11:00 a.m., London time, on that Interest Determination Date to prime banks in the London interbank market having the Index Maturity commencing on the second London Business Day immediately following that Interest Determination Date and in a principal amount equal to an amount of not less than U.S. $1 million that is representative for a single transaction in such market at such time. The Calculation Agent will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of that Interest Determination Date will be the arithmetic mean of such quotations. If fewer than two quotations are provided, LIBOR in respect of that Interest Determination Date will be the arithmetic mean of the rates quoted by three major money center banks the applicable financial center selected by the Calculation Agent (after consultation with the Issuer) at approximately 11:00 a.m., New York City time, on that Interest Determination Date for loans in Index Currency to leading European banks, having the Index Maturity commencing on the second London Business Day immediately following that Interest Determination Date and in a principal amount equal to an amount of not less than U.S. $1 million that is representative for a single transaction in such market at such time; PROVIDED, HOWEVER, that if the banks A-2-13 selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR for the applicable period will be the same as LIBOR for the immediately prior interest period. Unless otherwise specified on the face hereof: "London Business Day" means (i) if the Index Currency is other than the euro, any day on which dealings in deposits in the Index Currency are transacted in the London interbank market; or (ii) if the Index Currency is the euro, any day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open; "Designated LIBOR Page" means (a) if "LIBOR Reuters" is designated on the face hereof, the display on the Reuters Monitor Money Rates Service, or a successor nominated as the information vendor, for the purpose of displaying the London interbank rates of major banks for the applicable Index Currency, or (b) if "LIBOR Telerate" is designated on the face hereof, the display on the Bridge Telerate, Inc., or a successor nominated as the information vendor, for the purpose of displaying the London interbank rates of major banks for the applicable Index Currency. "Index Currency" means the currency, including composite currencies, specified on the face hereof as the currency for which LIBOR shall be calculated. If no Index Currency is specified on the face hereof, the Index Currency will be U.S. Dollars. DETERMINATION OF TREASURY RATE. Unless otherwise specified on the face hereof, if the Base Rate is Treasury Rate, Treasury Rate means, with respect to any Interest Determination Date, the rate set at the most recent auction of direct obligations of the United States ("Treasury bills") having the Index Maturity designated on the face hereof, as that rate appears on either Telerate Page 56 or Telerate Page 57 (or any pages that may replace such pages) under the heading "INVESTMENT RATE." The following procedures will be followed if the Treasury Rate cannot be determined as described in the immediately preceding sentence: (i) if such rate is not published on Telerate Page 56 or Telerate Page 57 by 9:00 a.m., New York City time, on the Calculation Date, the Treasury Rate will be the auction average rate, expressed as a Bond Equivalent Yield, as otherwise announced by the United States Department of the Treasury, for the Interest Determination Date; (ii) if the results of the most recent auction of Treasury bills having the Index Maturity designated on the face hereof are not published or announced as described in clause (i) above by 3:00 p.m., New York City time, on the Calculation Date, or if no auction is held in a particular week, the Treasury Rate will be the Bond Equivalent Yield of the rate set forth in H.15(519) for the Interest Determination Date opposite the Index Maturity under the heading "U.S. government securities/Treasury bills/Secondary market"; (iii) if such rate is not published in H.15(519) by 3:00 p.m., New York City time, on the Calculation Date as described in clause (ii) above, the Treasury Rate will be the rate set forth in H.15 Daily Update, or another recognized electronic source used for the purpose of displaying that rate, for the Interest Determination Date in respect of the Index A-2-14 Maturity under the heading "U.S. government securities/Treasury bills/Secondary market"; (iv) if the above rate is not published in H.15(519), H.15 Daily Update or another recognized source by 3:00 p.m., New York City time, on the Calculation Date as described in clauses (ii) and (iii) above, then the Calculation Agent will determine the Treasury Rate to be a yield to maturity, expressed as a Bond Equivalent Yield, of the arithmetic mean of the secondary market bid rates, as of approximately 3:30 p.m., New York City time, on the Interest Determination Date of three leading primary United States government securities dealers selected by the Calculation Agent after consultation with the Issuer for the issue of Treasury bills with a remaining maturity closest to the Index Maturity specified on the face hereof; and (v) if fewer than three dealers selected by the Calculation Agent are quoting as described in clause (iv) above, the Treasury Rate will be the Treasury Rate in effect during the prior interest period. "Bond Equivalent Yield" means a yield (expressed as a percentage rounded to the nearest one hundred thousandth of a percent) calculated in accordance with the following formula: Bond Equivalent Yield D x N ------------- X 100 = 360 - (D x M)
where "D" refers to the per annum rate for Treasury bills, quoted on a bank discount basis and expressed as a decimal; "N" refers to 365 or 366, as the case may be; and "M" refers to the actual number of days in the interest period for which interest is being calculated. "Telerate Page 56," "Telerate Page 57" and "Telerate Page 120" mean the displays designated on Bridge Telerate, Inc. as Page 56, Page 57 or Page 120, or any page that replaces either Page 56, Page 57 or Page 120 on that service, or another service that is nominated as the information vendor, for the purpose of displaying Treasury bill or federal funds auction rates. DETERMINATION OF PRIME RATE. Unless otherwise specified on the face hereof, if the Base Rate is Prime Rate, Prime Rate means, with respect to any Interest Determination Date, the prime rate or base lending rate on that date, as published in H.15(519) by 3:00 p.m., New York City time, on the Calculation Date pertaining to the Interest Determination Date under the heading "Bank prime loan." The following procedures will be followed if the Prime Rate cannot be determined as described in the immediately preceding sentence: (i) if such rate is not published in H.15(519) prior to 3:00 p.m., New York City time, on the Calculation Date, then the Prime Rate will be the rate on the Interest Determination Date as published in H.15 Daily Update opposite the heading "Bank prime loan"; A-2-15 (ii) if such rate is not published in either H.15(519) or H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date as described in clause (i) above, then the Calculation Agent will determine the Prime Rate to be the arithmetic mean of the rates of interest publicly announced by each bank that appears on the Reuters Screen USPRIME1 as that bank's prime rate or base lending rate as in effect for that Interest Determination Date; (iii) if fewer than four rates appear on the Reuters Screen USPRIME1 on the Interest Determination Date, then the Prime Rate will be the arithmetic mean of the prime rates or base lending rates quoted, on the basis of the actual number of days in the year divided by a 360-day year, as of the close of business on the Interest Determination Date by four major banks in The City of New York selected by the Calculation Agent from a list approved by the Issuer; (iv) if fewer than two rates appear on the Reuters Screen USPRIME1 on the Interest Determination Date, then the Prime Rate will be the arithmetic mean of the prime rates or base lending rates furnished by the appropriate number of substitute U.S. banks or trust companies in The City of New York that have a total equity capital of U.S. $500,000,000 or more and are subject to supervision or examination by federal or state authority, as selected by the Calculation Agent from a list approved by the Issuer; and (v) if the banks selected by the Calculation Agent are not quoting as described in clauses (iii) and (iv) above, the Prime Rate will be the Prime Rate in effect during the prior interest period. "Reuters Screen USPRIME1 Page" means the display on the Reuters Monitor Money Rates Service on the page designated as "USPRIME1," or any other page that replaces that page on that service for the purpose of displaying prime rates or base lending rates of major United States banks. DETERMINATION OF CMT RATE. Unless otherwise specified on the face hereof, if the Base Rate is the CMT Rate, CMT Rate means, with respect to any Interest Determination Date, the rate displayed on the Designated CMT Telerate Page by 3:00 p.m., New York City time, on the Calculation Date pertaining to the Interest Determination Date under the heading (or any successor heading) "Treasury Constant Maturities -- Federal Reserve Board Release H.15 -- Mondays Approximately 3:45 p.m.," under the column for the Index Maturity as specified on the face hereof (1) if the Designated CMT Telerate Page is 7051, such Interest Determination Date or (2) if the Designated CMT Telerate Page is 7052, the week, or the month, as applicable, ended immediately preceding the week in which the related Interest Determination Date occurs. The following procedures will be used if the CMT Rate cannot be determined as described in the immediately preceding sentence: (i) if such rate is no longer displayed on the relevant page, or if not displayed by 3:00 p.m., New York City time, on the Calculation Date, then the CMT Rate will be the Treasury constant maturity rate for the Index Maturity for the Interest Determination Date, as published in H.15(519); A-2-16 (ii) if such rate is no longer published in H.15(519), or if not displayed by 3:00 p.m., New York City time, on the Calculation Date, then the CMT Rate will be the Treasury constant maturity rate, or other United States Treasury rate, for the Index Maturity for the Interest Determination Date as may then be published by either the Board of Governors of the Federal Reserve System or the United States Department of the Treasury that the Calculation Agent determines to be comparable to the rate formerly displayed on the Designated CMT Telerate Page and published in H.15(519); (iii) if that information described in clause (ii) above is no longer provided by 3:00 p.m., New York City time, on the Calculation Date, then the Calculation Agent will determine the CMT Rate to be a yield to maturity based on the arithmetic mean of the secondary market offered rates as of approximately 3:30 p.m., New York City time, on the Interest Determination Date reported, according to their written records, by three leading primary United States government securities dealers in The City of New York selected by the Calculation Agent after consultation with the Issuer. The Calculation Agent will select five leading primary United States government securities dealers and will eliminate the highest and lowest quotations or, in the event of equality, one of the highest and lowest quotations, for the most recently issued direct non-callable fixed rate obligations of the United States ("Treasury Notes") with an original maturity of approximately the Index Maturity and a remaining term to maturity of not less than the Index Maturity minus one year; (iv) if the Calculation Agent cannot obtain three Treasury Note quotations as described in clause (iii) above, the Calculation Agent will determine the CMT Rate to be a yield to maturity based on the arithmetic mean of the secondary market offered rates as of approximately 3:30 p.m., New York City time, on the Interest Determination Date of three leading primary United States government securities dealers in New York City, selected using the same method described in clause (iii) above, for the most recently issued direct non-callable fixed rate obligations of the United States with an original maturity of the number of years that is the next highest to the Index Maturity and a remaining term to maturity closest to the Index Maturity and in an amount of at least U.S. $100 million; (v) if three or four (but not five) reference dealers are quoting as described in clauses (iii) and (iv) above, then the CMT Rate will be based on the arithmetic mean of the offered rates obtained and neither the highest nor the lowest of those quotations will be eliminated; and (vi) if fewer than three leading primary United States government securities dealers selected by the Calculation Agent are quoting as described in clauses (iii) and (iv) above, the CMT Rate will be the CMT Rate in effect during the prior interest period. "Designated CMT Telerate Page" means the display on the Bridge Telerate, Inc., or any successor service, on the page specified on the face hereof, or any other page that replaces that page on that service for the purpose of displaying Treasury Constant Maturities as reported in H.15(519). If no page is specified, page 7052 for the most recent week. OTHER BASE RATES. In addition to the Base Rates specified in this Section, the Issuer may elect to designate such Other Base Rates indicated on the face hereof based on such A-2-17 other interest rate formula or formulas indicated on the face hereof, which may include a combination of one or more of the Base Rates indicated above. RESET OF SPREAD AND SPREAD MULTIPLIER. If the Issuer has the option with respect to this Note to reset the Spread and/or Spread Multiplier, such option will be indicated on the face hereof, together with (i) the date or dates on which such Spread and/or Spread Multiplier may be reset (each an "Optional Reset Date") and (ii) the basis or formula, if any, for such resetting. Unless otherwise specified on the face hereof, the Issuer may exercise such option by notifying the Trustee of such exercise at least 45 but not more than 60 days (unless otherwise specified on the face hereof) prior to an Optional Reset Date. Not later than 40 days (unless otherwise specified on the face hereof) prior to such Optional Reset Date, the Trustee will mail to the Holder hereof a notice (the "Reset Notice"), first class, postage prepaid, setting forth (i) the election of the Issuer to reset the Spread and/or Spread Multiplier, (ii) such new Spread and/or Spread Multiplier, and (iii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or, if there is no such next Optional Reset Date, to the Stated Maturity of this Note (each such period a "Subsequent Interest Period"), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during such Subsequent Interest Period. Notwithstanding the foregoing, not later than 20 days (unless otherwise specified on the face hereof) prior to an Optional Reset Date, the Issuer may, at its option, revoke the Spread and/or Spread Multiplier provided for in the Reset Notice and establish a higher Spread and/or Spread Multiplier for the Subsequent Interest Period commencing on such Optional Reset Date by mailing or causing the Trustee to mail notice of such higher Spread and/or Spread Multiplier first class, postage prepaid, to the Holder hereof. Such notice shall be irrevocable. If the Spread and/or Spread Multiplier is reset on an Optional Reset Date this Note will bear such higher Spread and/or Spread Multiplier. A-2-18 If the Issuer elects to reset the Spread and/or Spread Multiplier of this Note, the Holder hereof will have the option to elect repayment of this Note by the Issuer on any Optional Reset Date at a price equal to the principal amount hereof plus any accrued interest to such Optional Reset Date. In order for this Note to be so repaid on an Optional Reset Date, the Holder hereof must follow the procedures set forth below for optional repurchase, except that the period for delivery of this Note or notification to the Trustee shall be at least 25 but not more than 35 days (unless otherwise specified on the face hereof) prior to such Optional Reset Date and except that a Holder who has tendered this Note for repayment pursuant to a Reset Notice may, by written notice to the Trustee, revoke any such tender for repayment until the close of business on the tenth day prior to such Optional Reset Date. INTEREST RATE IN EFFECT. The Calculation Agent will, upon the request of the Holder of this Note, provide to such Holder the interest rate hereon then in effect and, if different, the interest rate which will become effective as a result of a determination made on the most recent Interest Determination Date. FORM OF NOTES INDEXED NOTES. This Note may be issued with the principal amount payable at Maturity and/or with interest payable hereon on an Interest Payment Date to be determined by reference to the price or prices of currencies, currency units, commodities, stock, other securities, interest or other notes, financial or non-financial indices or other factors (each an "Indexed Note"), as shall be indicated above under "Other Terms." Specific information pertaining to the method for determining the principal amount payable at Maturity or the amount of interest to be paid on an Interest Payment Date with reference to the specified index shall be included above under "Other Terms." For the purposes of determining whether Holders of the requisite principal amount of Indexed Notes outstanding have made a demand or given a notice or waiver or taken any other action, the outstanding principal amount of Indexed Notes will be deemed to be the face amount of the Indexed Notes. In the event of an acceleration of the maturity of the Indexed Note, the principal amount payable to the Holder of an Indexed Note upon acceleration will be the principal amount determined by reference to the formula by which the principal amount of the Indexed Note would be determined on the Maturity Date, as if the date of acceleration were the Maturity Date. DUAL CURRENCY NOTES. This Note may be issued as a Note in which the Issuer has a one-time option to pay the principal, premium, if any, and interest, if any, on this Note in an optional currency specified on the face hereof under "Other Terms" that is a different currency from the Specified Currency of this Note ("Dual Currency Notes"). The Issuer shall provide the Holders two Business Days written notice of its exercise of such option, which such exercise shall be irrevocable. Specific information pertaining to Dual Currency Notes shall be included above under "Other Terms," and shall include, without limitation, Specified Currency for the dual currency note: o the Specified Currency; A-2-19 o the Optional Payment Currency; o the Designated Exchange Rate; o the Option Election Date; and o the Interest Payment Dates for Dual Currency Notes. The amounts payable and the method for calculating these amounts with respect to Dual Currency Notes and any additional terms and conditions of any issue of Dual Currency Notes will be specified on the face hereof. RENEWABLE NOTES. This Note may be issued as a Note in which the Maturity will be automatically extended for a twelve month period on each Maturity unless the Holder elects to terminate the automatic extension ("Renewable Notes"). The Holder may terminate the automatic extension by notifying the Trustee within the time frame set forth on the face hereof. The Holder may choose to maintain the automatic extension provision for a portion of the Renewable Note so long as that portion equals at least $100,000 (or its foreign currency equivalent). The Maturity of the Renewable Notes cannot be extended beyond the final Maturity Date set forth on the face hereof. If the Holder elects to terminate the automatic extension of any portion of the Renewable Note, the Holder will receive payment of principal on that portion on an Interest Payment Date falling approximately six months after the date on which the Renewable Note was scheduled to be extended. The Holder may revoke its election to terminate the automatic extension or any portion of the Renewable Note if such portion equals at least $100,000 (or its foreign currency equivalent). To revoke its election to terminate, the Holder must notify the Trustee prior to the fifteenth calendar day before the portion is scheduled to mature. An election to terminate the automatic extension of a Renewable Note will be binding on any subsequent Holder unless properly revoked. The Issuer may elect to redeem the total amount or portion of a Renewable Note at a redemption price of 100% of its principal amount plus accrued interest. If the Issuer decides to redeem a Renewable Note, the Issuer must notify the Holder by first class mail at least 30 but not more than 60 days prior to the redemption date. The Renewable Notes will bear interest at a specified rate that will be based on a based rate and any Spread and/or Spread Multiplier. EXTENDIBLE NOTES. This Note may be issued as a Note in which the Issuer has the option to extend the Notes' stated Maturity Date for one or more whole years up to a date set forth on the face hereof ("Extendible Notes"). In the event the Issuer elects to extend the Extendible Notes, the Issuer must notify the Trustee no less than 45 nor more than 60 calendar days prior to the Extendible Notes' original stated Maturity Date. The Trustee will notify the Holder of the Issuers extension of the Maturity by first class mail. The notice must specify the A-2-20 Extendible Notes' new Maturity Date, the interest rate applicable to the extension period and any applicable redemption provisions. The interest rate may be increased for the extension period if the Issuer notifies the Trustee prior to 10:00 a.m., New York City time, on the twentieth calendar day before the extended Extendible Notes are scheduled to mature. The Trustee will send notice to the Holders in a manner agreed upon by the Trustee and the Issuer. This increased interest rate may not be revoked. In the event the Issuer extends the period Maturity of the Extendible Notes, the Holder has the option to require the Issuer to repay such Extendible Notes on the Maturity Date then in effect at a price equal to the principal amount of the Extendible Notes plus any accrued interest to such date. In order to exercise this option the Holder must notify the Trustee no less than 25 nor more than 60 calendar days prior to the date the Extendible Notes are scheduled to Mature. Such notice may be made by delivering to the Trustee the Extendible Notes with the attached "Option to Elect Repayment" form completed, or a letter from a broker/dealer, bank or trust company notifying the Trustee of the Holder's intent to redeem its Extendible Notes and guaranteeing that the Extendible Notes and the attached "Option to Elect Repayment" form will be delivered no later than five Business Days after the date set for redemption. The Holder may revoke its election to be repaid at any time before 3:00 p.m., New York City time, on the twentieth calendar day prior to the date the Extendible Notes are scheduled to mature. ORIGINAL ISSUE DISCOUNT NOTES. This Note may be issued as a Note in which the issue price (set forth on the face hereof) is less than 100% of the principal amount thereof, (i.e. par) by more than a percentage equal to the product of 0.25% and the number of full years to the Maturity Date ("Original Issue Discount Notes"). Original Issue Discount Notes may not bear any interest currently or may bear interest at a rate that is below market rates at the time of the issuance. The difference between the issue price of an Original Issue Discount Note and par is referred to as the "Discount." In the event of redemption, repayment or acceleration of Maturity of an Original Issue Discount Note, the amount payable to the Holder will be equal to the sum of: o the issue price (increased by any accruals of Discount) and, in the event of any redemption of the applicable Original Issue Discount Note, if applicable, multiplied by the initial redemption percentage (as adjusted, if applicable); and o any unpaid interest accrued on the Original Issue Discount Note to the date of the redemption, repayment or acceleration of the Maturity, as the case may be. For purposes of determining the amount of Discount that has accrued as of any date on which a redemption, repayment or acceleration of Maturity occurs for an Original Issue Discount Note, a Discount will be accrued using a constant yield method. The constant yield will be calculated using a 30-day month, 360-day year convention, a compounding period that, except for the Initial Period (as defined below), corresponds to the shortest period between Interest Payment Dates for the applicable Original Issue Discount Note (with ratable accruals A-2-21 within a compounding period), a coupon rate equal to the initial coupon rate applicable to the Original Issue Discount Note and an assumption that the Maturity of an Original Issue Discount Note will not be accelerated. If the period from the date of issue to the first Interest Payment Date for an Original Issue Discount Note (the "Initial Period") is shorter than the compounding period for the Original Issue Discount Note, a proportionate amount of the yield for an entire compounding period will be accrued. If the Initial Period is longer than the then the compounding, then the period will be divided into a regular compounding period and a short with the short period being treated as provided in the preceding sentence. The accrual of the applicable Discount may differ from the accrual of original issue discount for purposes of the Internal Revenue Code of 1986 (the "Code"), as amended, certain Original Issue Discount Notes may not be treated as having original issue discount within the meaning of the Code, and notes other than Original Issue Discount Notes may be treated as issued with original issue discount for federal income tax purposes. GENERAL INFORMATION REGARDING THE NOTES CERTAIN DEFINITIONS. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other than United States dollars, such day must not be a day on which commercial banks are authorized or required by law, regulation or executive order to close in the Principal Financial Center (as defined below) of the country issuing the Specified Currency (or, if the Specified Currency is Euro, such day must be a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open). "Principal Financial Center" means the capital city of the country issuing the Specified Currency, except that with respect to United States dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders, Italian lire, South African rand and Swiss francs, the "Principal Financial Center" shall be The City of New York, Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, Milan, Johannesburg and Zurich, respectively. "Calculation Date" means, with respect to any Interest Determination Date, the date on or before which the Calculation Agent is to calculate an interest rate for a Note. Unless otherwise specified on the face hereof, the Calculation Date pertaining to an Interest Determination Date for a Note will be the first to occur of (i) the tenth calendar day after that Interest Determination Date or, if that day is not a Business Day, the next succeeding Business Day; or (ii) the Business Day preceding the applicable Interest Payment Date or Maturity Date, Redemption Date or Repurchase Date, of that Note, as the case may be. "Index Maturity" means the period of time designated as the representative maturity of the certificates of deposit, the commercial paper, the Index Currency, the Treasury bills or other instrument or obligation, respectively, by reference to transactions in which the CD Rate, the Commercial Paper Rate, LIBOR, the Treasury Rate and the CMT Rate, respectively, are to be calculated, as set forth on the face hereof. "Interest Determination Date" means the date as of which the interest rate for a Note is to be calculated, to be effective as of the following Interest Reset Date and calculated on A-2-22 the related Calculation Date. However, LIBOR will be calculated on the Interest Determination Date. Unless otherwise specified on the face hereof (i) the Interest Determination Date pertaining to an Interest Reset Date for a CD Rate Note, Commercial Paper Rate Note, Federal Funds Rate Note, Prime Rate Note or CMT Rate Note will be the second Business Day preceding that Interest Reset Date; (ii) the Interest Determination Date pertaining to an Interest Reset Date for a LIBOR Note will be the second London Business Day preceding that Interest Reset Date; and (iii) the Interest Determination Date pertaining to an Interest Reset Date for a Treasury Rate Note will be the day of the week during which that Interest Reset Date falls on which Treasury bills of the Index Maturity designated on the face hereof are auctioned, such Treasury bills being usually sold at auction on Monday of each week, unless that day is a legal holiday, in which case the auction is usually held on the following Tuesday or may be held on the preceding Friday; PROVIDED that if, as the result of a legal holiday, an auction is held on the preceding Friday, that Friday will be the Interest Determination Date pertaining to the Interest Reset Date occurring in the following week. REDEMPTION BY THE ISSUER. Unless one or more Redemption Dates is specified on the face hereof, this Note shall not be redeemable at the option of the Issuer before the Maturity Date specified on the face hereof. If one or more Redemption Dates is so specified, this Note is subject to redemption on any such date at the option of the Issuer, upon notice by first-class mail, mailed not less than 30 days nor more than 60 days (unless otherwise specified on the face hereof) prior to the applicable Redemption Date specified in such notice, at the applicable Redemption Price specified on the face hereof (expressed as a percentage of the principal amount of this Note), together in the case of any such redemption with accrued interest to the Redemption Date. Unless otherwise specified on the face hereof, the Issuer may elect to redeem less than the entire principal amount hereof. REPURCHASE AT THE OPTION OF THE HOLDER. Unless one or more Repurchase Dates at the option of the Holder is specified on the face hereof, this Note shall not be repayable at the option of the Holder on any date prior to the Maturity Date specified on the face hereof. If one or more Repurchase Dates is so specified, this Note is subject to repurchase on any such date at the option of the Holder at the applicable Repurchase Price specified on the face hereof (expressed as a percentage of the principal amount of this Note), together in the case of any such repayment with accrued interest to the Repurchase Date, but interest installments whose Stated Maturity is prior to the Repurchase Date will be payable to the Holder of this Note, or one or more Predecessor Notes, of record at the close of business on the relevant Regular Record Dates referred to on the face hereof. For this Note to be repaid at the option of the Holder, the Trustee must receive at the principal office of its Corporate Trust Department in Chicago, Illinois, at least 30 days but not more than 60 days (unless otherwise specified on the face hereof) prior to the Repurchase Date on which this Note is to be repaid: (i) appropriate wire instructions; and (ii) either (a) the Note with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed, or (b) a telegram, telex, facsimile transmission or letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc., or a commercial bank A-2-23 or trust company in the United States setting forth: (1) the name of the holder of the Note; (2) the principal amount of the Note; (3) the portion of the principal amount of the Note to be repurchased; (4) the certificate number or a description of the tenor and terms of the Note; (5) a statement that the option to elect repurchase is being exercised; and (6) [insert if certificated note][a guarantee that the Note to be repaid with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed will be received by the Trustee within five Business Days. The Trustee must actually receive the Note and form duly completed by the fifth Business Day.] [insert if global security] [The above instructions shall be delivered to the Depositary who will forward them to the Trustee.] Exercise of the repurchase option by the Holder of a Note shall be irrevocable. The Holder of a Note may exercise the repurchase option for less than the entire principal amount of the Note provided that the principal amount of the Note remaining outstanding after repurchase is an Authorized Denomination. No transfer or exchange of any Note will be permitted after exercise of a repurchase option. If a Note is to be repurchased in part, no transfer or exchange of the portion of the Note to be repurchased will be permitted after exercise of a repurchase option. All questions as to the validity, eligibility, including time of receipt, and acceptance of any note for repurchase will be determined by the Issuer and its determination will be final, binding and non-appealable. [Insert if the Security is to be a Certificated Security - In the event of redemption or repayment of this Note in part only, a new Note or Notes of this series and of like tenor and for a principal amount equal to the unredeemed or unrepaid portion will be delivered to the registered Holder upon the cancellation hereof.] [Insert if the Security is to be a Global Security - In the event of redemption or repayment of this Note in part only, the Principal Amount shall be reduced.] CALCULATION OF EXCHANGE RATES. If this is a Foreign Currency Note to be paid in United States dollars, the United States dollar amount to be received in respect hereof will be based upon the exchange rate as determined by the Exchange Rate Agent based on the most favorable firm bid quotation for United States dollars received by such Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the second Business Day preceding the A-2-24 applicable payment date from three recognized foreign exchange dealers in The City of New York selected by the Exchange Rate Agent and approved by the Issuer (one of which may be the Exchange Rate Agent) for the purchase by the quoting dealer, for settlement on such payment date, of the aggregate amount of the Specified Currency payable on such payment date in respect of this Note. If three quoting dealers are not available then two dealers will be used. If no such bid quotations are available, payments will be made in the Specified Currency, unless such Specified Currency is unavailable due to the imposition of exchange controls or to other circumstances beyond the Issuer's control, in which case the Issuer will be entitled to make payments in respect hereof in United States dollars as provided in the manner set forth below. All currency exchange costs will be borne by the Holder hereof by deductions from such payments. The determination of the exchange rate pursuant to the provisions of this Section is referred to herein as the "Market Exchange Rate." PERCENTAGES AND DECIMALS. Except as otherwise specified on the face hereof, all percentages and decimals resulting from any calculation of interest on Notes will be rounded, if necessary, to the nearest one-hundred thousandth of a percentage point, with five one-millionths of a percentage point rounded upwards. For example, 9.876545% (or .09876545) will be rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544) will be rounded to 9.87654% (or .0987654). All dollar amounts used in or resulting from any such calculation will be rounded to the nearest cent (with one-half cent being rounded upwards). PAYMENTS IN SPECIFIED CURRENCIES. If a Holder is to receive payments in a Specified Currency other than United States dollars as described on the face hereof, payments of principal of (and premium, if any) and interest will be paid in immediately available funds by wire transfer to an account maintained by the Holder with a bank designated by the Holder (which in the case of Global Securities will be the Depositary or its nominee) on or prior to the Regular Record Date or at least 15 days prior to Maturity, as the case may be, in the case of Certificated Securities or, in the case of Global Securities, in the manner specified on the face hereof in the third paragraph thereof following the summary of terms, provided that such bank has the appropriate facilities for such a payment in the Specified Currency, PROVIDED, HOWEVER, that with respect to payments of principal and premium, if any, and interest at Maturity this Note is presented to the Trustee in time for the Trustee to make such payment in accordance with its normal procedures, which shall require presentation no later than two Business Days prior to Maturity in order to ensure the availability of immediately available funds in the Specified Currency at Maturity. If payment on this Note is required to be made in a Specified Currency other than United States dollars and such currency is unavailable in the good faith judgment of the Issuer due to the imposition of exchange controls or to other circumstances beyond the Issuer's control, or is no longer used by the government of the country issuing such currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments with respect to this Note shall be made in United States dollars until such currency is again available or so used. The amount so payable on any date in such Specified Currency shall be converted into United States dollars at a rate determined by the Exchange Rate Agent on the basis of the Market Exchange Rate on the second Business Day prior to such payment, or, if the A-2-25 Market Exchange Rate is not then available, the most recently available Market Exchange Rate or as otherwise determined in good faith by the Issuer if the foregoing is impracticable. If this is a Foreign Currency Note, in the event of an official redenomination of such foreign currency (including, without limitation, an official redenomination of a foreign currency that is a composite currency) the obligations of the Issuer with respect to payments on this Note denominated in such currency shall, in all cases, be deemed immediately following such redenomination to provide for the payment of that amount of redenominated currency representing the amount of such obligations immediately before such redenomination. No adjustment will be made to any amount payable under this Note as a result of (a) any change in the value of a foreign currency relative to any other currency due solely to fluctuations in exchange rates or (b) any redenomination of any component currency of any composite currency (unless such composite currency is itself officially redenominated). ACCELERATION UPON AN EVENT OF DEFAULT. If an Event of Default with respect to Notes of this series shall occur and be continuing, the Principal Amount of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Unless otherwise specified on the face hereof, if any Original Issue Discount Note (as defined below) is redeemed or repurchased by the Issuer or repurchased at the option of the Holder, each as described above, or if the principal of any Original Issue Discount Note is declared to be due and payable immediately pursuant to this paragraph, the amount of principal due and payable with respect to this Note shall be limited to the sum of the aggregate principal amount of this Note multiplied by the Issue Price (expressed as a percentage of the aggregate principal amount) plus the original issue discount accrued from the date of issue to the date of redemption, repayment or declaration, as applicable, which accrual shall be calculated using the "interest method" (computed in accordance with generally accepted accounting principles) in effect on the date of redemption, repurchase or declaration. Unless otherwise specified on the face hereof, an Original Issue Discount Note is a Note which has a stated redemption price at maturity that exceeds its Issue Price by at least 0.25% of the stated redemption price at maturity, multiplied by the number of full years from the Original Issue Date to the Maturity Date for this Note. MODIFICATION OF RIGHTS UNDER 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 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 A-2-26 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 interest on this security in the manner, at the respective times, at the rate and in the coin or currency herein prescribed. TRANSFERS OF NOTES. As provided in the Indenture and subject to certain limitations set forth therein and as may be set forth on the face hereof, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Issuer in any place where the principal of (and premium, if any) and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series of like tenor, of Authorized Denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. [Insert if the Security is a Global Security - GLOBAL NOTES. This Note is a Global Note and shall be exchangeable for Notes registered in the names of Persons other than the Depositary with respect to this Global Note or its nominee only if (A) such Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for this Global Note or at any time ceases to be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, (B) the Issuer in its sole discretion executes and delivers to the Trustee a Issuer Order that this Global Note shall be exchangeable or (C) there shall have occurred and be continuing an Event of Default with respect to the Notes. If this Global Note is exchangeable pursuant to the preceding sentence, it shall be exchangeable for Notes issuable in denominations of $1,000 and any integral multiple of $1,000 in excess thereof, registered in such names as such Depositary shall direct.] DENOMINATION. The Notes of this series are issuable, in the case of Notes A-2-27 denominated in United States dollars, in denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes denominated in a Specified Currency other than United States dollars, in the authorized denominations set forth on the face hereof (in each case, an "Authorized Denomination"). EXCHANGE OF NOTES. As provided in the Indenture and subject to certain limitations set forth therein and as may be set forth on the face hereof, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series of like tenor of a different Authorized Denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. REGISTERED OWNER. 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 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. GOVERNING LAW. 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. DEFINED TERMS. 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-2-28 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: TEN - as tenants in common UNIF GIFT MIN -___________ Custodian COM ACT _______ TEN ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with right of under Uniform Gifts to survivorship and not as Minors tenants in common Act___________________ (State)
Additional abbreviations may also be used though not in the above list. A-2-29 ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ________________________________________________________________________________ (Please print or typewrite name and address including postal zip code of assignee) ________________________________________________________________________________ this Note and all rights thereunder hereby irrevocably constituting and appointing ________________________________________________________________________________ Attorney to transfer this Note on the books of the Trustee, with full power of substitution in the premises. Dated: _________________ ________________________________________ _________________ ________________________________________ Notice: The signature(s) on this Assignment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever. A-2-30 [OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Issuer to repay this Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at __________ _______________________________________________________________________________. (Please print or typewrite name and address of the undersigned) For this Note to be repaid, the Trustee must receive at its corporate trust office in Chicago, Illinois, currently located at 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, not more than 60 nor less than 30 calendar days prior to the Repayment Date, this Note with this "Option to Elect Repayment" form duly completed. If less than the entire principal amount of this Note is to be repaid, specify the portion hereof (which shall be increments of U.S. $1,000 or other integral multiple of an Authorized Denomination) (provided that any remaining principal amount shall be at least U.S. $1,000 or such other minimum Authorized Denomination) which the Holder elects to have repaid and specify the denomination or denominations (which shall be U.S. $1,000 or such other minimum Authorized Denomination) of the Notes to be issued to the Holder for the portion of this Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid). Principal Amount to be Repaid: $ __________ ________________________________________ Notice: The signature(s) on this Option Dated: ___________________ to Elect Repayment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever.](2) - ---------- (2) This form applies to certificated Notes only. A-2-31 EX-5 5 a2056569zex-5.txt EXHIBIT 5 BOSE McKINNEY & EVANS LLP 2700 First Indiana Plaza 135 North Pennsylvania Street Indianapolis, Indiana 46240 (317) 684-5000 August 9, 2001 Duke Realty Limited Partnership 600 East 96th Street, Suite 100 Indianapolis, Indiana 46240 Dear Sirs: We are acting as counsel to Duke Realty Limited Partnership, an Indiana limited Partnership (the "Partnership"), in connection with the shelf registration by the Partnership of debt securities of the Partnership pursuant to a Registration Statement, file no. 333-37920 (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 $150,000,000 in aggregate principal amount of Medium-Term Notes Due Nine Months or More From Date of Issue (the "Notes"). This opinion letter is supplemental to the opinion letter filed as Exhibit 5 to the Registration Statement, as amended. We have examined photostatic copies of the Second Amended and Restated Articles of Incorporation, as amended, and Second Amended and Restated Bylaws of Duke Realty Corporation, the sole general partner of the Partnership (the "Company"), and of the Partnership's Second Amended and Restated Agreement of Limited Partnership, as amended, 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. 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. Duke Realty Limited Partnership August 9, 2001 Page 2 (2) When (a) the applicable provisions of the Securities Act of 1933 and such state "blue sky" or securities laws as may be applicable have been complied with and (b) the Notes have been issued and delivered for value as contemplated in the Registration Statement and duly authenticated by the trustee under the Indenture, the Notes will be duly and validly issued and will constitute legal, valid and binding obligations of the Partnership, enforceable against the Partnership in accordance with their terms, except insofar as enforceability thereof may be limited by usury, bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or general principles of equity. We do not hold ourselves out as being conversant with the laws of any jurisdiction other than the federal laws of the United States and the laws of the State of Indiana and, therefore, this opinion is limited to the laws of those jurisdictions. No person or entity other than you may rely or claim reliance upon this opinion. This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Bose McKinney & Evans LLP EX-8 6 a2056569zex-8.txt EXHIBIT 8 EXHIBIT 8 BOSE McKINNEY & EVANS LLP 135 North Pennsylvania Street Suite 2700 Indianapolis, Indiana 46204 August 9, 2001 Duke Realty Limited Partnership 600 East 96th Street, Suite 100 Indianapolis, Indiana 46240 Gentlemen: We have acted as counsel to Duke Realty Limited Partnership (the "Operating Partnership") with respect to the preparation of a Prospectus Supplement (the "Prospectus Supplement") filed with the Securities and Exchange Commission on or about June 8, 2001 and refiled to reflect a name change on or about the date hereof relating to the issuance and sale by the Operating Partnership of $150,000,000 in aggregate principal amount of the Operating Partnership's Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes"). In connection therewith, you have requested our opinion regarding certain United States Federal income tax consequences of the purchase, ownership and disposition of the Notes. All capitalized terms used herein have their respective meanings as set forth in the Prospectus Supplement unless otherwise stated. In rendering the opinions stated below, we have examined and relied, with your consent, upon the following: (i) The Prospectus Supplement; (ii) The Indenture, as supplemented by a Supplemental Indenture relating to the Notes; and (iii) Such other documents, records and instruments as we have deemed necessary in order to enable us to render the opinion referred to in this letter. In our examination of the foregoing documents, we have assumed, with your consent, that (i) all documents reviewed by us are original documents, or true and accurate copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) each party who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are true and correct and (v) all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms. Duke Realty Limited Partnership August 9, 2001 Page 2 Based upon and subject to the foregoing, we are of the opinion that the tax consequences of the purchase, ownership and disposition of the Notes will be consistent with the discussion contained in the section entitled "Certain United States Federal Income Tax Considerations" in the Prospectus Supplement. The opinions set forth in this letter represent our conclusions as to the application of federal income tax laws existing as of the date of this letter to the transactions described herein. We can give no assurance that legislative enactments, administrative changes or court decisions may not be forthcoming that would modify or supersede our opinions. Moreover, there can be no assurance that positions contrary to our opinions will not be taken by the IRS, or that a court considering the issues would not hold contrary to such opinions. Further, the opinions set forth above represent our conclusion based upon the documents, facts and representations referred to above. Any material amendments to such documents, changes in any significant facts or inaccuracy of such representations could affect the opinions referred to herein. Although we have made such inquiries and performed such investigations as we have deemed necessary to fulfill our professional responsibilities as counsel, we have not undertaken an independent investigation of the facts referred to in this letter. We express no opinion as to any federal income tax issue or other matter except those set forth or confirmed above. We consent to the filing of this opinion with Form 8-K, to the incorporation by reference of this opinion as an exhibit to the registration statement of the Operating Partnership and Duke Realty Corporation (file no. 333-37920) and any registration statement filed under Rule 462(b) relating to such registration statement and to the reference to our firm under the heading "Legal Matters" in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933. Very truly yours, /s/ Bose McKinney & Evans LLP -----END PRIVACY-ENHANCED MESSAGE-----