EXHIBIT 4
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DUKE-WEEKS REALTY LIMITED PARTNERSHIP
ISSUER
TO
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
NINTH SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 5, 2001
$175,000,000 6.950% SENIOR NOTES DUE 2011
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)
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NINTH SUPPLEMENTAL INDENTURE, dated as of March 5, 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 14 Wall Street, Eighth Floor - Window 2,
New York, New York 10005.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of September 19, 1995, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Ninth Supplemental
Indenture to (i) create a series of debt securities, in an aggregate principal
amount not to exceed $175,000,000, entitled "Duke-Weeks Realty Limited
Partnership 6.950% Senior Notes due 2011" (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 Ninth Supplemental Indenture is not required, and all other actions
required to be taken under the Original Indenture with respect to this Ninth
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 Ninth
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 Ninth Supplemental Indenture.
"NOTES" means the Issuer's 6.950% Senior Notes due March 15,
2011, a form of which is attached hereto as Exhibit A.
SECTION 1.02. CREATION OF THE DEBT SECURITIES. In accordance with
Section 301 of the Original Indenture, the Issuer hereby creates the Notes as a
separate series of its debt securities issued pursuant to the Indenture. The
Notes shall be issued in an aggregate principal amount not to exceed
$175,000,000.
SECTION 1.03. FORM OF THE DEBT SECURITIES. The Notes will be
represented by a single fully-registered global note in book-entry form, without
coupons, registered in the name of the nominee of DTC. The Notes shall be in the
form of Exhibit A attached hereto. So long as DTC, or its nominee, is the
registered owner of a Global Note, DTC or its nominee, as the case may be, will
be considered the sole owner or holder of the notes represented by such Global
Note for all purposes under the Indenture. Ownership of beneficial interests in
the Global Note will be shown on, and transfers thereof will be effected only
through, records maintained by DTC (with respect to beneficial interests of
participants) or by participants or persons that hold interests through
participants (with respect to beneficial interests of beneficial owners).
SECTION 1.04. TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes
shall be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Ninth Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) 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.
(b) APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. The provisions
of Article 14 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
TRUSTEE
SECTION 2.01. TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this Ninth
Supplemental Indenture or the due execution thereof by the Issuer. The recitals
of fact contained herein shall be taken as
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the statements solely of the Issuer, and the Trustee assumes no responsibility
for the correctness thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. RATIFICATION OF ORIGINAL INDENTURE. This Ninth
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 Ninth 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 Ninth 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 Ninth 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 Ninth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Ninth Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this Ninth
Supplemental Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.06. COUNTERPARTS. This Ninth 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth
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
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General Partner
By: /s/ James R. Windmiller
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Name: James R. Windmiller
Title: Senior Vice President,
Corporate Taxation
Attest:
/s/ Douglas E. Greer
- ----------------------------------
Name: Douglas E. Greer
Title: Vice President, Deputy General
Counsel and Assistant Secretary
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Janice Ott Rotunno
--------------------------------
Name: Janice Ott Rotunno
Title: Vice President
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]
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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]
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Notary Public
COMMISSION EXPIRES
EXHIBIT A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.
REGISTERED REGISTERED
NO. __________ PRINCIPAL AMOUNT
CUSIP NO. 26441YAD9 $175,000,000
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
6.950% SENIOR NOTES DUE 2011
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 Cede &
Co. or its registered assigns, the principal sum of One Hundred Seventy-Five
Million Dollars on March 15, 2011 (the "Maturity Date"), and to pay interest
thereon from March 5, 2001 (or from the most recent interest payment date to
which interest has been paid or duly provided for), semi-annually on March 15
and September 15 of each year (each, an "Interest Payment Date"), commencing on
September 15, 2001, and on the Maturity Date, at the rate of 6.950% 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 in The Borough of Manhattan, The City
of New York. The Issuer hereby initially designates the Corporate Trust Office
of the Trustee in the City of New York as the office to be maintained by it
where Notes may be presented for payment, registration of transfer, or exchange
and where notices or demands to or upon the Issuer in respect of the Notes or
the Indenture referred to on the reverse hereof may be served.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will be the amount of interest accrued
from and including the immediately preceding Interest Payment Date (or from and
including March 5, 2001 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: March 5 , 2001
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE-WEEKS REALTY CORPORATION,
as General Partner
By:
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Name:
Title:
By:
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Name:
Title:
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:
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Authorized Officer
[REVERSE OF NOTE]
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
6.950% SENIOR NOTES DUE 2011
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. (formerly known as The First National Bank of
Chicago), as Trustee (hereinafter called the "Trustee," which term includes any
successor trustee under the Indenture with respect to the series of Securities
of which this Note is a part), to which the Indenture and all indentures
supplemental thereto relating to this security reference is hereby made for a
description of the rights, limitations of rights, obligations, duties, and
immunities thereunder of the Trustee, the Issuer, and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary as
provided in the Indenture or any indenture supplemental thereto. This security
is one of a series designated as the 6.950% Senior Notes due March 15, 2011 of
the Issuer, limited in aggregate principal amount to $175,000,000.
In case an Event of Default with respect to this security
shall have occurred and be continuing, the principal hereof may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect, and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and
the Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Security
so affected, (i) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate or amount of interest thereon,
or 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 interest on
this security in the manner, at the respective times, at the rate and in the
coin or currency herein prescribed.
This security is issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof. Securities
may be exchanged for a like aggregate principal amount of securities of this
series of other authorized denominations at the office or agency of the Issuer
in The Borough of Manhattan, The City of New York, in the manner and subject to
the limitations provided in the Indenture, but without the payment of any
service charge except for any tax or other governmental charge imposed in
connection therewith.
Upon due presentment for registration of transfer of
Securities at the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, one or more new Securities of the same series of
authorized denominations in an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee or any authorized agent of the Issuer
or the Trustee may deem and treat the Person in whose name this security is
registered as the absolute owner of this security (whether or not this security
shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof, and 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.