Exhibit 4.1
DUKE REALTY LIMITED
PARTNERSHIP
ISSUER
TO
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
TRUSTEE
FIFTH SUPPLEMENTAL
INDENTURE
DATED AS OF AUGUST 11,
2009
$250,000,000 7.375%
SENIOR NOTES DUE 2015
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)
FIFTH SUPPLEMENTAL
INDENTURE , dated as of
August 11, 2009, between DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership (the “Issuer”), having its
principal offices at 600 East 96 th Street, Suite 100, 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 1020, 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 Fifth Supplemental
Indenture to (i) create a series of debt securities, in an
initial aggregate principal amount of $250,000,000, entitled
“Duke Realty Limited Partnership 7.375% Senior Notes due
2015” (the “Notes”); 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 Fifth Supplemental Indenture is not required, and
all other actions required to be taken under the Original Indenture
with respect to this Fifth 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 Fifth 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 Fifth 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 7.375%
Senior Notes due February 15, 2015, 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 0.50%
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” 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
$250,000,000.
The Issuer may issue, in addition to
the Notes originally issued on the date hereof, additional 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 Fifth 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.
(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 Fifth 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
Fifth 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 Fifth 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 Fifth
Supplemental Indenture is inconsistent with any provision of the
Original Indenture, the terms of this Fifth 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 Fifth 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 Fifth 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 Fifth
Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York. This Fifth
Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Fifth Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 3.06.
Counterparts . This Fifth
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.
IN WITNESS WHEREOF
, the parties hereto have caused
this Fifth 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.
