(State of Formation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(State of |
(Commission |
(IRS Employer | ||
Formation) |
File Number) |
Identification No.) |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class |
Trading Symbol |
Name of each exchange on which registered | ||
Item 1.01. |
Entry Into a Material Definitive Agreement. |
Item 9.01. |
Financial Statements and Other Exhibits |
Exhibit Number |
Description | |||
4.1 |
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5.1 |
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8.1 |
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23.1 |
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23.2 |
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99.1 |
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104 |
Cover Page Interactive Data File (embedded within the Inline XBRL document). |
DUKE REALTY CORPORATION | ||||
By: |
/s/ Ann C. Dee | |||
Ann C. Dee | ||||
Executive Vice President, General Counsel and Corporate Secretary | ||||
DUKE REALTY LIMITED PARTNERSHIP | ||||
By: DUKE REALTY CORPORATION, its general partner | ||||
By: |
/s/ Ann C. Dee | |||
Ann C. Dee | ||||
Executive Vice President, General Counsel and Corporate Secretary |
Exhibit 4.1
DUKE REALTY LIMITED PARTNERSHIP
ISSUER
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
TRUSTEE
SEVENTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 21, 2020
$325,000,000 3.050% SENIOR NOTES DUE 2050
SUPPLEMENT TO INDENTURE,
DATED AS OF JULY 28, 2006, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (AS SUCCESSOR TO
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION)
SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of February 21, 2020, between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the Issuer), having its principal offices at 8711 River Crossing Boulevard, Indianapolis, IN 46240 and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor to J.P. MORGAN TRUST COMPANY, National Association), a national banking association organized under the laws of the United States of America, as trustee (the Trustee), having its Corporate Trust Office at 2 N. LaSalle Street, Suite 700, Chicago, Illinois 60602.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the Original Indenture), dated as of July 28, 2006, to the Trustee to issue from time to time for its lawful purposes debt securities evidencing its unsecured 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 Seventeenth Supplemental Indenture to (i) create a series of debt securities, in an initial aggregate principal amount of $325,000,000, entitled Duke Realty Limited Partnership 3.050% Senior Notes due 2050; and (ii) establish the form and the terms and conditions of such Notes.
WHEREAS, the Board of Directors of Duke 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 Seventeenth Supplemental Indenture is not required, and all other actions required to be taken under the Original Indenture with respect to this Seventeenth 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 Seventeenth Supplemental Indenture and not otherwise defined shall have the meanings ascribed to them in the Original Indenture. In addition, the following terms shall have the following meanings to be equally applicable to both the singular and the plural forms of the terms defined:
DTC means The Depository Trust Company.
Global Note means a single fully-registered global note in book-entry form, without coupons, substantially in the form of Exhibit A attached hereto.
Indenture means the Original Indenture as supplemented by this Seventeenth Supplemental Indenture.
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Make-Whole Amount means, in connection with any optional redemption or accelerated payment of any Note, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of each such dollar through September 1, 2049 if such redemption or accelerated payment had been made on September 1, 2049, determined by discounting, on a semi-annual basis, such principal and interest at the Reinvestment Rate (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had been made on September 1, 2049, over (ii) the aggregate principal amount of the Notes being redeemed or paid.
Notes means the Issuers 3.050% Senior Notes due March 1, 2050, a form of which is attached hereto as Exhibit A.
Redemption Price means the sum of (i) the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date, and (ii) the Make-Whole Amount, if any, with respect to such Notes; provided, however, that if the Redemption Date is any time on or after September 1, 2049, the Redemption Price shall mean the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date without any payment of a Make-Whole Amount. The Redemption Price shall be calculated by the Issuer or such other party appointed by the Issuer.
Reinvestment Rate means 0.200% plus the arithmetic mean of the yields under the respective heading Week Ending published in the most recent Statistical Release under the caption Treasury Constant Maturities for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity (which maturity shall be deemed to be September 1, 2049), as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used.
Statistical Release means the statistical release designated H.15 or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any determination under the Indenture, then such other reasonably comparable index which shall be designated by the Issuer.
SECTION 1.02. Creation of the Debt Securities. In accordance with Section 301 of the Original Indenture, the Issuer hereby creates the Notes as a separate series of its debt securities issued pursuant to the Indenture. The Notes shall be issued in an aggregate principal amount initially limited to $325,000,000.
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The Issuer may issue, in addition to the Notes originally issued on the date hereof, additional Notes, so long as such additional Notes are fungible for U.S. federal income tax purposes with the Notes. The Notes originally issued on the date hereof and any additional Notes originally issued subsequent to the date hereof shall be a single series for all purposes under the Original Indenture.
SECTION 1.03. Form of the Debt Securities. The Notes will be represented by a single fully-registered global note in book-entry form, without coupons, registered in the name of the nominee of DTC. The Notes shall be in the form of Exhibit A attached hereto. So long as DTC, or its nominee, is the registered owner of a Global Note, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the notes represented by such Global Note for all purposes under the Indenture. Ownership of beneficial interests in the Global Note will be shown on, and transfers thereof will be effected only through, records maintained by DTC (with respect to beneficial interests of participants) or by participants or persons that hold interests through participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04. Terms and Conditions of the Debt Securities. The Notes shall be governed by all the terms and conditions of the Original Indenture, as supplemented and modified by this Seventeenth Supplemental Indenture, and in particular, the following provisions shall be terms of the Notes:
(a) Optional Redemption. The Issuer may redeem the Notes at any time at the option of the Issuer, in whole or from time to time in part, at a redemption price equal to the Redemption Price.
If notice has been given as provided in the Original Indenture and funds for the redemption of any Notes called for redemption shall have been made available on the Redemption Date referred to in such notice, such Notes will cease to bear interest on the date fixed for such redemption specified in such notice and the only right of the Holders of the Notes will be to receive payment of the Redemption Price.
Notice of any optional redemption of any Notes will be given to Holders at their addresses, as shown in the Security Register, not more than 60 nor less than 15 days prior to the date fixed for redemption. The notice of redemption will specify, among other items, the Redemption Price and the principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the Issuer, the Issuer will notify the Trustee at least 45 days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of Notes to be redeemed and their Redemption Date. The Trustee shall select, in such manner as it shall deem fair and appropriate, no less than 45 days prior to the Redemption Date and in accordance with applicable depositary procedures, the Notes to be redeemed in part.
(b) Payment of Principal and Interest. Principal and interest payments on interests represented by a Global Note will be made to DTC or its nominee, as the case may be, as the registered owner of such Global Note. All payments of principal and interest in respect of the Notes will be made by the Issuer in immediately available funds.
3
(c) Applicability of Defeasance or Covenant Defeasance. The provisions of Article 14 of the Original Indenture shall apply to the Notes.
(d) Definition of Total Unencumbered Assets. For purposes of the covenants entitled Limitations on Incurrence of Debt and Maintenance of Total Unencumbered Assets in Sections 1004 and 1005 of the Original Indenture, the following terms shall be defined, solely with respect to the Notes, as follows:
(i) Debt of the Issuer or any Subsidiary means any indebtedness of the Issuer or any Subsidiary, whether or not contingent, in respect of (i) borrowed money evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned by the Issuer or any Subsidiary, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable or (iv) any lease of property by the Issuer or any Subsidiary as lessee which is reflected on the Issuers consolidated balance sheet as a financing lease in accordance with GAAP, in the case of items of indebtedness under (i) through (iii) above to the extent that any such items (other than letters of credit) would appear as a liability on the Issuers consolidated balance sheet in accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the Issuer or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), indebtedness of another person (other than the Issuer or any Subsidiary) (it being understood that Debt shall be deemed to be incurred by the Issuer and its Subsidiaries on a consolidated basis whenever the Issuer and its Subsidiaries on a consolidated basis shall create, assume, guarantee or otherwise become liable in respect thereof).
(ii) Total Assets as of any date means the sum of (i) the Undepreciated Real Estate Assets and (ii) all other assets of the Issuer and its Subsidiaries on a consolidated basis determined in accordance with GAAP (but excluding non-real estate intangibles, operating lease assets and accounts receivable).
(iii) Total Unencumbered Assets means the sum of (i) those Undepreciated Real Estate Assets not subject to an encumbrance and (ii) all other assets of the Issuer and its Subsidiaries not subject to an encumbrance determined in accordance with GAAP (but excluding non-real estate intangibles, operating lease assets and accounts receivable); provided, however, that all investments by the Issuer and its Subsidiaries in unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities shall be excluded from the calculation of Total Unencumbered Assets to the extent that such investments would have otherwise been included.
4
(iv) Undepreciated Real Estate Assets means as of any date the cost (original cost plus capital improvements) of real estate assets of the Issuer and its Subsidiaries on such date, before depreciation and amortization, determined on a consolidated basis in accordance with GAAP.
(e) Cross-Acceleration. For purposes of the Event of Default provided for in Section 501(5) of the Original Indenture, all references to the amount of $5,000,000 shall be increased to $50,000,000; provided, however, that for so long as any of the securities issued pursuant to any supplemental indenture to the Original Indenture that preceded this Seventeenth Supplemental Indenture are outstanding and provide for this same Event of Default but for a lower amount of such recourse debt, the reference to $50,000,000 in this paragraph is replaced by such lower amount.
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 Seventeenth Supplemental Indenture or the due execution thereof by the Issuer. The recitals of fact contained herein shall be taken as the statements solely of the Issuer, and the Trustee assumes no responsibility for the correctness thereof. The Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Sections 1471 through 1474 of the U.S. Internal Revenue Code and the rules and regulations thereunder (as in effect from time to time).
ARTICLE THREE
Miscellaneous Provisions
SECTION 3.01. Ratification of Original Indenture. This Seventeenth 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 Seventeenth Supplemental Indenture shall be read, taken and construed as one and the same instrument. Notwithstanding anything herein to the contrary, to the extent any provision of this Seventeenth Supplemental Indenture is inconsistent with any provision of the Original Indenture, the terms of this Seventeenth Supplemental Indenture shall govern and apply to the Notes.
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 Seventeenth Supplemental Indenture by the Issuer shall bind its successors and assigns, whether so expressed or not.
5
SECTION 3.04. Separability Clause. In case any one or more of the provisions contained in this Seventeenth 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 Seventeenth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. This Seventeenth Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Seventeenth Supplemental Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 3.06. Counterparts. This Seventeenth Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
6
IN WITNESS WHEREOF, the parties hereto have caused this Seventeenth Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the date first above written.
DUKE REALTY LIMITED PARTNERSHIP | ||||||
as Issuer | ||||||
By: | DUKE REALTY CORPORATION, | |||||
its General Partner | ||||||
By: | /s/ Mark A. Denien | |||||
Name: | Mark A. Denien | |||||
Title: | Executive Vice President and | |||||
Chief Financial Officer |
Attest: | ||
/s/ Ann C. Dee | ||
Name: | Ann C. Dee | |
Title: | Executive Vice President, General | |
Counsel and Corporate Secretary |
[Signature Page to Seventeenth Supplemental Indenture]
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||||
By: | /s/ Lawrence M. Kusch | |||
Name: | Lawrence M. Kusch | |||
Title: | Vice President |
[Signature Page to Seventeenth Supplemental Indenture]
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED | REGISTERED | |
NO. 1 | PRINCIPAL AMOUNT | |
CUSIP NO. 26441Y BD8 | $325,000,000 |
DUKE REALTY LIMITED PARTNERSHIP
3.050% Senior Notes due 2050
Duke Realty Limited Partnership, an Indiana limited partnership (the Issuer, which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or its registered assigns, the principal sum of Three Hundred Twenty-Five Million Dollars on March 1, 2050 (the Maturity Date), and to pay interest thereon from and including February 21, 2020 (or from the most recent interest payment date to which interest has been paid or duly provided for) in U.S. dollars semi-annually in arrears on March 1 and September 1 of each year, each, an Interest Payment Date, commencing on September 1, 2020, and on the Maturity Date, at the rate of 3.050% per annum, until payment of said principal sum has been made or duly provided for.
The interest so payable and punctually paid or duly provided for on any Interest Payment Date and on the Maturity Date will be paid to the Holder in whose name this Note (or one or more predecessor Notes) is registered at the close of business on the Record Date for such payment, which will be 15 days (regardless of whether such day is a Business Day (as defined below)) prior to such payment date or the Maturity Date, as the case may be. Any interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Record Date, and shall be paid to the Holder in whose name this Note (or one or more predecessor Notes) is registered at the close of business on a subsequent Record Date for the payment of such defaulted interest (which shall be not less than five Business Days (as defined below) prior to the date of the payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of the Notes not less than 15 days preceding such subsequent Record Date. Interest on this Note will be computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will be paid against presentation and surrender of this Note at the office or agency of the Issuer maintained for that purpose. The Issuer hereby initially designates the Corporate Trust Office of the Trustee at Global Corporate Trust, 2. N. LaSalle Street, Suite 700, Chicago, Illinois 60602 as the office to be maintained by it where Notes may be presented for payment, registration of transfer, or exchange and where notices or demands to or upon the Issuer in respect of the Notes or the Indenture referred to on the reverse hereof may be served.
Interest payable on this Note on any Interest Payment Date and on the Maturity Date, as the case may be, will be the amount of interest accrued from and including the immediately preceding Interest Payment Date (or from and including February 21, 2020, in the case of the initial Interest Payment Date) to but excluding the applicable Interest Payment Date or the Maturity Date, as the case may be. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day (as defined below), the required payment of interest or principal or both, as the case may be, will be made on the next Business Day with the same force and effect as if it were made on the date such payment was due and no interest will accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be. Business Day means any day, other than a Saturday or a Sunday, on which banking institutions in The City of New York are open for business.
Payments of principal and interest in respect of this Note will be made by wire transfer of immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture referred to on the reverse hereof or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed manually or by facsimile by its authorized officers.
Dated as of: February 21, 2020
DUKE REALTY LIMITED PARTNERSHIP, as Issuer | ||||
By: | DUKE REALTY CORPORATION, | |||
its General Partner | ||||
By: |
| |||
Name: | Mark A. Denien | |||
Title: | Executive Vice President and | |||
Chief Financial Officer | ||||
By: |
| |||
Name: | Ann C. Dee | |||
Title: | Executive Vice President, General | |||
Counsel and Corporate Secretary |
[SIGNATURE PAGE TO GLOBAL NOTE]
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: |
| |
Authorized Officer | ||
Dated: , 2020 |
[SIGNATURE PAGE TO GLOBAL NOTE]
[REVERSE OF NOTE]
DUKE REALTY LIMITED PARTNERSHIP
3.050% Senior Notes due 2050
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 July 28, 2006 (hereinafter called the Indenture), duly executed and delivered by the Issuer to The Bank of New York Mellon Trust Company, N.A. (as successor to J.P. Morgan Trust Company, National Association), as Trustee (hereinafter called the Trustee, which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), to which the Indenture and all indentures supplemental thereto relating to this security reference is hereby made for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), and may otherwise vary as provided in the Indenture or any indenture supplemental thereto. This security is one of a series designated as the 3.050% Senior Notes due 2050 of the Issuer, initially limited in aggregate principal amount to $325,000,000.
In case an Event of Default with respect to this security shall have occurred and be continuing, the principal hereof and Make-Whole Amount, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect, and subject to the conditions provided in the Indenture.
The Issuer may redeem this security at any time at the option of the Issuer, in whole or in part, at a redemption price equal to the sum of (i) the principal amount of this security being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date, and (ii) the Make-Whole Amount, if any, with respect to this security (the Redemption Price); provided, however, that if the Redemption Date is any time on or after September 1, 2049, the Redemption Price shall mean the principal amount of the Notes being redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date without any payment of a Make-Whole Amount. Notice of any optional redemption of any Securities will be given to Holders at their addresses, as shown in the Security Register, not more than 60 days nor less than 15 days prior to the date fixed for redemption. The notice of redemption will specify, among other items, the Redemption Price and the principal amount of the Securities held by such Holder to be redeemed.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority of the aggregate principal amount of the Securities at the time outstanding of all series to be affected (voting as one class), evidenced as provided in the Indenture, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Security so affected, (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate or amount of interest thereon or any premium payable upon the redemption thereof, or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where, or the currency or currencies, currency unit or units or composite currency or currencies in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or (ii) reduce the aforesaid percentage of Securities, the Holders of which are required to consent to any such supplemental indenture, or (iii) reduce the percentage of Securities, the Holders of which are required to consent to any waiver of compliance with certain provisions of the Indenture or any waiver of certain defaults thereunder. It is also provided in the Indenture that, with respect to certain defaults or Events of Default regarding the Securities of any series, the Holders of a majority in aggregate principal amount outstanding of the Securities of such series (or, in the case of certain defaults or Events of Default, all series of Securities) may on behalf of the Holders of all the Securities of such series (or all of the Securities, as the case may be) waive any such past default or Event of Default and its consequences, prior to any declaration accelerating the maturity of such Securities, or, subject to certain conditions, may rescind a declaration of acceleration and its consequences with respect to such Securities. Any such consent or waiver by the Holder of this security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of the security and any securities that may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this security or such other securities.
No reference herein to the Indenture and no provision of this security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and any Make-Whole Amount and interest on this security in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without coupons in denominations of $2,000 principal amount and integral multiples of $1,000 in excess thereof. Securities may be exchanged for a like aggregate principal amount of securities of this series of other authorized denominations at the office or agency of the Issuer, in the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge except for any tax or other governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of Securities at the office or agency of the Issuer, one or more new Securities of the same series of authorized denominations in an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Issuer, the Trustee or any authorized agent of the Issuer or the Trustee may deem and treat the Person in whose name this security is registered as the absolute owner of this security (whether or not this security shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and Make-Whole Amount, if any, and subject to the provisions on the face hereof, interest hereon, and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such state, except as may otherwise be required by mandatory provisions of law.
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.
Exhibit 5.1
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
404-881-7000 | Fax: 404-881-7777
February 21, 2020
Duke Realty Corporation
Duke Realty Limited Partnership
8711 River Crossing Blvd.,
Indianapolis, IN 46240
Re: | Duke Realty Limited Partnership Registration Statement on Form S-3ASR |
(Registration Statement No. 333-224538-01), filed with the |
Securities and Exchange Commission on April 30, 2018 |
Ladies and Gentlemen:
We have acted as counsel to Duke Realty Corporation, an Indiana corporation (the Company), and Duke Realty Limited Partnership, an Indiana limited partnership (the Operating Partnership, and, together with the Company, the Duke Entities), in connection with the Duke Entities filing of the above referenced shelf registration statement (the Registration Statement) with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended (the Act).
We are furnishing this opinion letter to you pursuant to Item 16 of the Commissions Form S-3 and Item 601(b)(5) of the Commissions Regulation S-K, in connection with the Operating Partnerships issuance of $325,000,000 aggregate principal amount of 3.050% Senior Notes Due 2050 (the Notes), pursuant to the Company and the Operating Partnerships prospectus, dated April 30, 2018, included in the Registration Statement (the Base Prospectus), the Operating Partnerships preliminary prospectus supplement, dated and filed with the Commission on February 11, 2020 pursuant to Rule 424(b)(3) under the Act (the Preliminary Prospectus Supplement), and the Operating Partnerships final prospectus supplement, dated February 11, 2020 and filed with the Commission on February 12, 2020 pursuant to Rule 424(b)(5) under the Act (the Final Prospectus Supplement, and, together with the Preliminary Prospectus Supplement, the Prospectus Supplements, and, collectively, the Base Prospectus and the Prospectus Supplements and the documents incorporated by reference therein, the Prospectus). The Notes are to be issued under the Seventeenth Supplemental Indenture, dated as of February 21, 2020 (the Supplemental Indenture), to the original Indenture, dated as of July 28, 2006 (as supplemented by the Supplemental Indenture, the Indenture), by and between the Operating Partnership and The Bank of New York Mellon Trust Company, N.A. (as successor to J.P. Morgan Trust Company, National Association), as trustee (the Trustee). The Notes are being issued and sold to the several underwriters (the Underwriters) named in the Terms Agreement, dated as of February 11, 2020 (including the terms of the related
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February 21, 2020
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Underwriting Agreement, dated as of November 5, 2019, and attached as Annex A thereto and made a part thereof, the Terms Agreement), by and among the Operating Partnership, the Company and the Underwriters, named therein. The Terms Agreement, the Indenture and the Notes collectively are referred to herein as the Transaction Documents.
In the capacity described above, we have considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Duke Entities, including, without limitation, resolutions adopted by the boards of directors or other governing bodies or controlling entities of the Duke Entities and the organizational documents of the Duke Entities (in each case, as amended or restated), certificates of officers and representatives (who, in our judgment, are likely to know the facts upon which the opinion or confirmation will be based) of the Duke Entities, certificates of public officials, the Registration Statement and such other documents as we have deemed appropriate as a basis for the opinion hereinafter set forth. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes of expressing the opinion set forth herein.
As to certain factual matters relevant to this opinion letter, we have relied conclusively upon the representations, warranties and statements made in originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements documents and instruments entered into by the Duke Entities in connection with the issuance of the Notes, including, without limitation, the Transaction Documents, certificates and statements of responsible officers of the Duke Entities, and certificates of public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion or belief as to matters that might have been disclosed by independent verification.
In our examination of the relevant documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Our opinion set forth below is limited to the Indiana Business Corporation Law, applicable provisions of the Constitution of the State of Indiana and reported judicial decisions interpreting such Corporation Law and Constitution that, in our professional judgment, are normally applicable to transactions of the type contemplated by the Transaction Documents, the laws of the State of New York and federal laws of the United States of America to the extent referred to specifically herein, and we do not express any opinion herein concerning any other laws, statutes, ordinances or regulations.
Based upon the foregoing, and subject, in all respects, to the limitations, qualifications, exceptions and assumptions set forth herein, it is our opinion that:
(1) Upon due execution of the Notes by the Operating Partnership, due authentication thereof by the Trustee in accordance with the Indenture and issuance and delivery thereof against
February 21, 2020
Page 3
full payment therefor as provided in the Terms Agreement, the Notes will be validly issued and will constitute legally binding obligations of the Operating Partnership entitled to the benefits of the Indenture, except to the extent that (a) enforceability may be limited by applicable bankruptcy, insolvency, liquidation, reorganization, moratorium and other laws relating to or affecting the rights and remedies of creditors generally, and (b) the remedy of specific performance and other forms of equitable relief may be subject to certain defenses and to the discretion of the court before which proceedings may be brought (regardless of whether enforceability is considered in a proceeding in equity or at law).
This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement and the Prospectus, and may not be used, circulated, quoted or otherwise relied upon for any other purpose without our prior express written consent. The only opinion rendered by us consists of those matters set forth in the paragraph numbered (1) above, and no opinion may be implied or inferred beyond the opinion expressly stated. Our opinion expressed herein is made as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinion expressed herein.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement (or to the filing of this opinion as Exhibit 5.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this law firm under the caption Legal Matters in the Prospectus Supplements constituting a part of the Registration Statement. In giving this consent, we do not thereby admit that we are an expert within the meaning of the Act or that we are otherwise within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
[Signature appears on following page.]
Sincerely, | ||
ALSTON & BIRD LLP | ||
By: | /s/ Mark C. Kanaly | |
Mark C. Kanaly | ||
A Partner |
[Signature Page to the Exhibit 5.1 Legal Opinion]
Exhibit 8.1
The Atlantic Building
950 F Street, NW
Washington, DC 20004-1404
202-239-3300 | Fax: 202-239-3333
February 21, 2020
Duke Realty Corporation
Duke Realty Limited Partnership
600 East 96th Street, Suite 100
Indianapolis, IN 46240
Re: | Duke Realty Limited Partnership Issuance of $325,000,000 Aggregate |
Principal Amount of 3.050% Senior Notes Due 2050 (the Notes) |
Ladies and Gentlemen:
We have represented Duke Realty Corporation, an Indiana corporation (the Company), and Duke Realty Limited Partnership, an Indiana limited partnership (the Operating Partnership), in connection with the Operating Partnerships issuance of the Notes.
You have requested our opinion as to (i) the qualification of the Company as a real estate investment trust (REIT) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the Code) and (ii) the accuracy of the discussion of U.S. federal income tax considerations contained under the caption Federal Income Tax Considerations in the Base Prospectus (as defined below), as superseded by the discussion contained under the caption Material U.S. Federal Income Tax Considerations in Exhibit 99.1 to the Companys Form 10-K for the year ended December 31, 2018, and as supplemented by the statements contained in the Prospectus Supplements (as defined below) under the heading Supplemental Material Federal Income Tax Considerations.
In connection with this opinion, we have made such legal and factual inquiries as we have deemed necessary or appropriate, including examination of the Operating Partnerships Registration Statement on Form S-3 (Registration Statement No. 333-224538-01), filed with the Securities and Exchange Commission (the Commission) on April 30, 2018 (as amended and supplemented from time to time and including the documents incorporated by reference therein, the Registration Statement), which includes the Operating Partnerships base prospectus dated and filed with the Commission on April 30, 2018 (the Base Prospectus), the Operating Partnerships preliminary prospectus supplement, dated and filed with the Commission on February 11, 2020 pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the 1933 Act) (the Preliminary Prospectus Supplement), and the Operating Partnerships final
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Page 2
prospectus supplement, dated February 11, 2020 and filed with the Commission on February 12, 2020 pursuant to Rule 424(b)(5) under the 1933 Act (the Final Prospectus Supplement, and, together with the Preliminary Prospectus Supplement, the Prospectus Supplements, and, collectively, the Base Prospectus and the Prospectus Supplements and the documents incorporated by reference therein, the Prospectus). In addition, the Company has provided us with, and we are relying upon, a certificate containing certain factual representations and covenants of officers of the Company (the Officers Certificate) relating to, among other things, the actual and proposed operations of the Company and the entities in which it holds direct or indirect interests. For purposes of our opinion, however, we have not made an independent investigation of the facts, representations and covenants set forth in the Officers Certificate, the Prospectus, or in any other document. In particular, we note that the Company and the Operating Partnership may engage in transactions in connection with which we have not provided legal advice, and have not reviewed, and of which we may be unaware. We have assumed and relied on the representations that the information presented in the Officers Certificate and the Prospectus accurately and completely describe all material facts relevant to our opinion. We have assumed that such statements, representations and covenants are true without regard to any qualification as to knowledge or belief. We are not, however, aware of any facts inconsistent with the representations contained in the Officers Certificate or the facts in the above referenced documents. Our opinion is conditioned on the continuing accuracy and completeness of such statements, representations and covenants. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Officers Certificate may affect our conclusions set forth herein.
In rendering the opinion set forth herein, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies.
Based upon the foregoing, and subject, in all respects, to the assumptions, qualifications and limitations set forth in this opinion letter, it is our opinion that:
(i) Commencing with its taxable year ended December 31, 1999, the Company has been organized, and has operated, in conformity with the requirements for qualification and taxation of the Company as a REIT under the Code, and the present and proposed method of operation (as described in the Prospectus and the Officers Certificate) of the Company will permit the Company to continue to so qualify.
(ii) The statements in the Base Prospectus under the caption Federal Income Tax Considerations, as superseded by the statements in Exhibit 99.1 to the Companys Form 10-K for the year ended December 31, 2018 under the caption Material U.S. Federal Income Tax Considerations, and as supplemented by the statements in the Prospectus Supplements under the heading Supplemental Material Federal Income Tax Considerations, to the extent that they constitute matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, are correct in all material respects.
The Companys qualification as a REIT depends on the Companys ongoing satisfaction of the various requirements under the Code and described in the Base
Page 3
Prospectus under the caption Federal Income Tax Considerations, as superseded by the discussion contained under the caption Material U.S. Federal Income Tax Considerations in Exhibit 99.1 to the Companys Form 10-K for the year ended December 31, 2018, relating to, among other things, the nature of the Companys gross income, the composition of the Companys assets, the level of distributions to the Companys shareholders, and the diversity of the Companys ownership. Alston & Bird LLP will not review the Companys compliance with these requirements on a continuing basis. No assurances can be given that the Company will satisfy these requirements.
An opinion of counsel merely represents counsels best judgment with respect to the probable outcome on the merits and is not binding on the Internal Revenue Service or the courts. There can be no assurance that positions contrary to our opinion will not be taken by the Internal Revenue Service or that a court considering the issues would not hold contrary to such opinion.
The opinions expressed herein are given as of the date hereof and are based upon the Code, the Treasury regulations promulgated thereunder, current administrative positions of the Internal Revenue Service, and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinions rendered herein. In addition, as noted above, our opinions are based solely on the documents that we have examined and the representations that have been made to us, and cannot be relied upon if any of the facts contained in such documents or in such additional information is, or later becomes, inaccurate or if any of the representations made to us is, or later becomes, inaccurate. Finally, our opinion is limited to the U.S. federal income tax matters specifically covered herein, and we have not opined on any other tax consequences to the Company or any other person, and we express no opinion with respect to other federal laws, the laws of any other jurisdiction, the laws of any state or as to any matters of municipal law or the laws of any other local agencies within any state.
This opinion letter is provided to you for your use solely in connection with the offering of the Notes and may not be used, circulated, quoted or otherwise referred to or relied upon by any other person or for any other purpose without our express written consent or used in any other transaction or context. No opinion other than that expressly contained herein may be inferred or implied. This opinion letter is rendered as of the date hereof and we make no undertaking, and expressly disclaim any duty, to supplement or update this opinion letter, if, after the date hereof, facts or circumstances come to our attention or changes in the law occur which could affect such opinion.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Registration Statement (or to the filing of this opinion as Exhibit 8.1 to a Current Report on Form 8-K, which will be incorporated by reference into the Registration Statement, as appropriate), and to the reference to this firm under the caption Legal Matters in the Prospectus constituting a part of the Registration Statement. In giving this consent, we do not hereby admit that we are an expert within the meaning of the 1933 Act.
Page 4
Very truly yours, |
/s/ Alston & Bird LLP |
ALSTON & BIRD LLP |
Exhibit 99.1
The estimated expenses incurred by Duke Realty Limited Partnership (the Operating Partnership) in connection with its issuance and sale of $325 million aggregate principal amount of 3.050% Senior Notes Due 2050 (the Notes) are set forth in the following table:
Amount to be Paid |
||||
SEC registration fee* |
$ | 41,065 | ||
Rating agency fees |
470,000 | |||
Legal fees and other expenses |
75,000 | |||
Accounting fees and expenses |
70,000 | |||
Printing and engraving costs |
8,000 | |||
Trustee fees and expenses |
9,000 | |||
Miscellaneous |
7,500 | |||
|
|
|||
Total |
$ | 680,565 | ||
|
|
* | On April 30, 2018, Duke Realty Corporation, the sole general partner of the Operating Partnership (the General Partner), and the Operating Partnership filed with the Securities and Exchange Commission an Automatic Shelf Registration Statement (the Registration Statement) on Form S-3 for the registration of an indeterminate amount of various securities, including, without limitation, debt securities of the Operating Partnership. In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the Company and the Operating Partnership deferred payment of all registration fees at the time of the filing of the Registration Statement. Accordingly, the Operating Partnership paid a registration fee of $41,065 in connection with the issuance and sale of the Notes. |
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