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DUKE-WEEKS REALTY LIMITED PARTNERSHIP
ISSUER
TO
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
EIGHTH SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 16, 1999
$150,000,000 7.750% SENIOR NOTES DUE 2009
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE REALTY LIMITED PARTNERSHIP AND
BANK ONE TRUST COMPANY, N.A.
(FORMERLY KNOWN AS THE FIRST NATIONAL BANK OF CHICAGO)
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EIGHTH SUPPLEMENTAL INDENTURE, dated as of November 16, 1999,
between DUKE-WEEKS REALTY LIMITED PARTNERSHIP, an Indiana limited partnership
(the "Issuer"), having its principal offices at 8888 Keystone Crossing, Suite
1200, Indianapolis, Indiana 46420 and BANK ONE TRUST COMPANY, N.A., a national
banking association organized under the laws of the United States of America, as
trustee (the "Trustee"), having its Corporate Trust Office at 14 Wall Street,
Eighth Floor - Window 2, New York, New York 10005.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of September 19, 1995, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Supplemental Indenture to (i)
create a series of debt securities, in an aggregate principal amount not to
exceed $150,000,000, entitled "Duke-Weeks Realty Limited Partnership 7.750%
Senior Notes due 2009" (the "Notes"); and (ii) establish the form and the terms
and conditions of such Notes.
WHEREAS, the Board of Directors of Duke-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 Supplemental Indenture is not required, and all other actions required to
be taken under the Original Indenture with respect to this Supplemental
Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01. DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined shall have the meanings ascribed to them in
the Original Indenture. In addition, the following terms shall have the
following meanings to be equally applicable to both the singular and the plural
forms of the terms defined:
"DTC" means The Depository Trust Company.
"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
Eighth Supplemental Indenture.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated payment)
that would have been payable in respect of each such dollar if such redemption
or accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"NOTES" means the Issuer's 7.750% Senior Notes due November 15,
2009, a form of which is attached hereto as Exhibit A.
"REDEMPTION PRICE" means the sum of (i) the principal amount of the
Notes being redeemed plus accrued interest thereon to the Redemption Date and
(ii) the Make-Whole Amount, if any, with respect to such Notes.
"REINVESTMENT RATE" means .25% plus the arithmetic mean of the
yields under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"STATISTICAL RELEASE" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Issuer.
SECTION 1.02. 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.
2
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 Seventh Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) OPTIONAL REDEMPTION. The Issuer may redeem the Notes at any time at
the option of the Issuer, in whole or from time to time in part, at a redemption
price equal to the Redemption Price.
If notice has been given as provided in the Original Indenture and
funds for the redemption of any Notes called for redemption shall have been made
available on the Redemption Date referred to in such notice, such Notes will
cease to bear interest on the date fixed for such redemption specified in such
notice and the only right of the Holders of the Notes will be to receive payment
of the Redemption Price.
Notice of any optional redemption of any Notes will be given to
Holders at their addresses, as shown in the Security Register, not more than 60
nor less than 30 days prior to the date fixed for redemption. The notice of
redemption will specify, among other items, the Redemption Price and the
principal amount of the Notes held by such Holder to be redeemed.
If less than all the Notes are to be redeemed at the option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and their Redemption
Date. The Trustee shall select, in such manner as it shall deem fair and
appropriate, Notes to be redeemed in whole or in part.
(b) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest payments on
interests represented by a Global Note will be made to DTC or its nominee, as
the case may be, as the registered owner of such Global Note. All payments of
principal and interest in respect of the Notes will be made by the Issuer in
immediately available funds.
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(c) APPLICABILITY OF DEFEASANCE OR COVENANT DEFEASANCE. The provisions of
Article 14 of the Original Indenture shall apply to the Notes.
ARTICLE TWO
TRUSTEE
SECTION 2.01. TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or the due execution thereof by the Issuer. The recitals of fact
contained herein shall be taken as the statements solely of the Issuer, and the
Trustee assumes no responsibility for the correctness thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. RATIFICATION OF ORIGINAL INDENTURE. This Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Supplemental Indenture shall be read, taken and construed as one and
the same instrument.
SECTION 3.02. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 3.03. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 3.04. SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Supplemental Indenture shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 3.05. GOVERNING LAW. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Supplemental Indenture
and shall, to the extent applicable, be governed by such provisions.
4
SECTION 3.06. COUNTERPARTS. This Supplemental Indenture may be executed in
any number of counterparts, and each of such counterparts shall for all purposes
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first above written.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: Duke-Weeks Realty Corporation
as General Partner
By: /s/ Matthew A. Cohoat
---------------------------------
Name:
Title:
Attest:
/s/ John Gaskin
- ---------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Janice Ott Rotunno
---------------------------------
Name: Janice Ott Rotunno
Title: Vice President
Attest:
/s/ Mark Frye
- ---------------------------------
Name:
Title:
6
STATE OF ____________ )
) ss:
COUNTY OF ____________ )
On the __________ day of __________ 1999, 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 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
7
STATE OF ILLINOIS )
) ss:
COUNTY OF COOK )
On the 12th day of November 1999, before me
personally came Janice Ott Rotunno, to me known, who, being by me duly sworn,
did depose and say that he/she resides at _____________________________________,
that he/she is a Vice President 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]
/s/ Diane Mary Wuertz
---------------------------------------------
Notary Public
COMMISSION EXPIRES
8
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. 26441YAC1 $150,000,000
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
7.750% SENIOR NOTES DUE 2009
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 Fifty Million
Dollars on November 15, 2009 (the "Maturity Date"), and to pay interest thereon
from November 16, 1999 (or from the most recent interest payment date to which
interest has been paid or duly provided for), semi-annually on November 15 and
May 15 of each year (each, an "Interest Payment Date"), commencing on May 15,
2000, and on the Maturity Date, at the rate of 7.750% 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 November 16, 1999 in the case of the initial Interest Payment Date) to
but excluding the applicable Interest Payment Date or the Maturity Date, as the
case may be. If any Interest Payment Date or the Maturity Date falls on a day
that is not a Business Day (as defined below), the required payment of interest
or principal or both, as the case may be, will be made on the next Business Day
with the same force and effect as if it were made on the date such payment was
due and no interest will accrue on the amount so payable for the period from and
after such Interest Payment Date or the Maturity Date, as the case may be.
"Business Day" means any day, other than a Saturday or a Sunday, on which
banking institutions in The City of New York are open for business.
Payments of principal and interest in respect of this Note will be
made by wire transfer of immediately available funds in such coin or currency of
the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under such Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated: November , 1999
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE-WEEKS REALTY CORPORATION
as General Partner
By:
-------------------------------------------
Name: Dennis D. Oklak
Title: Executive Vice President and Chief
Administrative Officer
By:
-------------------------------------------
Name: Matt Cohoat
Title: Vice President Corporate Controller
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
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[REVERSE OF NOTE]
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
7.750% SENIOR NOTES DUE 2009
This security is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or
to be issued under and pursuant to an Indenture dated as of September 19,
1995 (hereinafter called the "Indenture"), duly executed and delivered by the
Issuer to 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
7.750% Senior Notes due November 15, 2009 of the Issuer, limited in aggregate
principal amount to $150,000,000.
In case an Event of Default with respect to this security shall have
occurred and be continuing, the principal hereof and Make-Whole Amount, if any,
may be declared, and upon such declaration shall become, due and payable, in the
manner, with the effect, and subject to the conditions provided in the
Indenture.
The Issuer may redeem this security at any time at the option of the
Issuer, in whole or in part, at a redemption price equal to the sum of (i) the
principal amount of this security being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
this security (the "Redemption Price"). Notice of any optional redemption of any
Securities will be given to Holders at their addresses, as shown in the Security
Register, not more than 60 nor less than 30 days prior to the date fixed for
redemption. The notice of redemption will specify, among other items, the
Redemption Price and the principal amount of the Securities held by such Holder
to be redeemed.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority of the
aggregate principal amount of the Securities at the time outstanding of all
series to be affected (voting as one class), evidenced as provided in the
Indenture, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of 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
A-2
right of repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof, or (ii)
reduce the aforesaid percentage of Securities, the Holders of which are required
to consent to any such supplemental indenture, or (iii) reduce the percentage of
Securities, the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of certain
defaults thereunder. It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
the Holders of a majority in aggregate principal amount outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to certain
conditions, may rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the Holder of this
security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of the security
and any securities that may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this security
or such other securities.
No reference herein to the Indenture and no provision of this
security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and any Make-Whole
Amount and interest on this security in the manner, at the respective times, at
the rate and in the coin or currency herein prescribed.
This security is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Securities may be
exchanged for a like aggregate principal amount of securities of this series of
other authorized denominations at the office or agency of the Issuer in The
Borough of Manhattan, The City of New York, in the manner and subject to the
limitations provided in the Indenture, but without the payment of any service
charge except for any tax or other governmental charge imposed in connection
therewith.
Upon due presentment for registration of transfer of Securities at
the office or agency of the Issuer in The Borough of Manhattan, The City of New
York, one or more new Securities of the same series of authorized denominations
in an equal aggregate principal amount will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture, without
charge except for any tax or other governmental charge imposed in connection
therewith.
The Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this security is registered
as the absolute owner of this security (whether or not this security shall be
overdue and notwithstanding any notation of 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.
A-3
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.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated: November , 1999
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE-WEEKS REALTY CORPORATION
as General Partner
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
A-5