Exhibit 4.1


 


DEPOSIT
AGREEMENT


 


DEPOSIT AGREEMENT, dated as of January 31, 2006, among DUKE REALTY
CORPORATION, an Indiana corporation (the “Company”), and American Stock
Transfer & Trust Co., a New York banking corporation, as Depositary, and
all holders from time to time of Receipts (as hereinafter defined) issued
hereunder.


 


W I  T  N
E  S  S  E  T  H:


 


WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Company’s Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
deposited; and


 


WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement.


 


NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:


 


ARTICLE
I



DEFINITIONS


 


The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:


 


SECTION 1.1.                “Articles of Incorporation” shall mean the Third Restated Articles of
Incorporation, as amended from time to time, of the Company.


 


SECTION 1.2.                “Company” shall mean Duke Realty Corporation, an Indiana
corporation, and its successors.


 


SECTION 1.3.                “Corporate Office” shall mean the corporate office of the
Depositary at which at any particular time its business in respect of matters
governed by this Deposit Agreement shall be administered, which at the date of
this Deposit Agreement is located at 59 Maiden Lane, New York, NY 10038.


 


SECTION 1.4.                “Deposit Agreement” shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.


 


SECTION 1.5.                “Depositary” shall mean American Stock Transfer & Trust
Co., a company having its principal office in the United States and having a
combined capital and surplus of at least $10,000,000, and any successor as
depositary hereunder.


 

















SECTION 1.6.                “Depositary Share” shall mean a fractional interest of 1/10 of a
Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all
as evidenced by the Receipts issued hereunder. 
Subject to the terms of this Deposit Agreement, each owner of a
Depositary Share is entitled, proportionately, to all the rights, preferences
and privileges of the Preferred Share represented by such Depositary Share,
including the dividend, voting, redemption, conversion and liquidation rights
contained in the Designating Amendment.


 


SECTION 1.7.                “Depositary’s Agent” shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.5.


 


SECTION 1.8.                “Designating Amendment” shall mean the amendment to the Articles of
Incorporation filed with the Secretary of State of the State of Indiana
establishing the Preferred Shares as a series of preferred shares of the
Company.


 


SECTION 1.9.                “Preferred Shares” shall mean the Company’s 6.95% Series M
Cumulative Redeemable Preferred Shares, par value $0.01 per share, heretofore
validly issued, fully paid and nonassessable.


 


SECTION 1.10.              “Receipt” shall mean a Depositary Receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.


 


SECTION 1.11.              “record date” shall mean the date fixed pursuant to Section
4.4.


 


SECTION 1.12.              “record holder” or “holder” as
applied to a Receipt shall mean the person in whose name a Receipt is
registered on the books maintained by the Depositary for such purpose.


 


SECTION 1.13.              “Registrar” shall mean American Stock Transfer & Trust
Co. or any bank or trust company appointed to register ownership and transfers
of Receipts or the deposited Preferred Shares, as the case may be, as herein
provided.


 


SECTION 1.14.              “Securities Act” shall mean the Securities Act of 1933, as
amended.


 


SECTION 1.15.               “Transfer Agent” shall mean American Stock Transfer & Trust
Co. or any bank or trust company appointed to transfer the Receipts or the
deposited Preferred Shares, as the case may be, as herein provided.


 


2

















 


ARTICLE II



FORM OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,

EXECUTION AND DELIVERY, TRANSFER,

SURRENDER AND REDEMPTION OF RECEIPTS


 


SECTION 2.1.                Form and Transferability of
Receipts. 
Definitive Receipts shall be engraved or printed or lithographed and
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided.  Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company, delivered in compliance with Section 2.2, shall execute and
deliver temporary Receipts which may be printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine, as evidenced by their execution of such Receipts.  If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay.  After the
preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts
at the Corporate Office or such other offices, if any, as the Depositary may
designate, without charge to the holder. 
Upon surrender for cancellation of any one or more temporary Receipts,
the Depositary shall execute and deliver in exchange therefor definitive
Receipts representing the same number of Depositary Shares as represented by
the surrendered temporary Receipt or Receipts. 
Such exchange shall be made at the Company’s expense and without any
charge therefor.  Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Preferred Shares deposited, as
definitive Receipts.


 


Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual signature of a duly
authorized signatory of the Registrar. 
No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed as provided in the preceding sentence. 
The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.


 


Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.  All Receipts shall be dated the date of their
issuance.


 


Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Preferred Shares, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.


 


3

















 


Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt), that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.4, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions, the exercise of any conversion rights or to
any notice provided for in this Deposit Agreement and for all other purposes.


 


SECTION 2.2.                Deposit of Preferred Shares;
Execution and Delivery of Receipts in Respect Thereof. 
Concurrently with the execution of this Deposit Agreement, the Company
is delivering to the Depositary a certificate or certificates, registered in
the name of the Depositary and evidencing 736,000 Preferred Shares, properly
endorsed or accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the Depositary,
together with (i) all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and (ii) a written
order of the Company directing the Depositary to execute and deliver to, or
upon the written order of, the person or persons stated in such order a Receipt
or Receipts for the Depositary Shares representing such deposited Preferred
Shares.  The Depositary acknowledges
receipt of the deposited Preferred Shares and related documentation and agrees
to hold such deposited Preferred Shares in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine.  The Company hereby appoints
the Depositary as the Registrar and Transfer Agent for Preferred Shares
deposited hereunder and the Depositary hereby accepts such appointment and, as
such, will reflect changes in the number of shares (including any fractional
shares) of deposited Preferred Shares held by it by notation, book-entry or
other appropriate method.


 


If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or right to
subscribe for additional Preferred Shares or to receive other property that any
person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.


 


Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares in the name of the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to, or upon the order of, the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts for the number
of whole Depositary Shares representing the Preferred Shares so deposited and
registered in such name or names as may be requested by such person or
persons.  The Depositary shall execute
and deliver such Receipt or Receipts at the Corporate Office, except that, at
the request, risk and expense of any person 


 


4

















 


requesting such delivery, such delivery may be made at such other place
as may be designated by such person.


 


Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Shares
as set forth in the Designating Amendment, as such may be amended.


 


The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.


 


SECTION 2.3.                Optional Redemption of
Preferred Shares for Cash. 
Whenever the Company shall elect to redeem deposited Preferred Shares
for cash in accordance with the provisions of the Designating Amendment, it
shall (unless otherwise agreed in writing with the Depositary) give the
Depositary not less than 60 days’ prior written notice of the date of such
proposed redemption and of the number of such Preferred Shares held by the
Depositary to be redeemed and the applicable redemption price, as set forth in
the Designating Amendment, including the amount, if any, of accrued and unpaid
dividends to the date of such redemption. 
The Depositary shall mail, first-class postage prepaid, notice of the
redemption of Preferred Shares and the proposed simultaneous redemption of the
Depositary Shares representing the Preferred Shares to be redeemed, not less
than 30 and not more than 60 days prior to the date fixed for redemption of
such Preferred Shares and Depositary Shares (the “cash redemption date”), to
the holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the
proceedings for redemption as to other holders. 
The Company shall provide the Depositary with such notice, and each such
notice shall state:  the cash redemption
date; the cash redemption price; the number of deposited Preferred Shares and
Depositary Shares to be redeemed; if fewer than all the Depositary Shares held
by any holder are to be redeemed, the number of such Depositary Shares held by
such holder to be so redeemed; the place or places where Receipts evidencing
Depositary Shares to be redeemed are to be surrendered for payment of the cash
redemption price; and that from and after the cash redemption date dividends in
respect of the Preferred Shares represented by the Depositary Shares to be
redeemed will cease to accrue.  If fewer
than all the outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company.


 


In the event that notice of redemption has been made as described in
the immediately preceding paragraph and the Company shall then have paid in
full to the Depositary the cash redemption price (determined pursuant to the
Designating Amendment) of the Preferred Shares deposited with the Depositary to
be redeemed (including any accrued and unpaid dividends to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Shares so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed
to redeem the Preferred Shares to be redeemed by it as set forth in the
Company’s notice provided for in the preceding 


 


5

















 


paragraph), all dividends in respect of the Preferred Shares called for
redemption shall cease to accrue, the Depositary Shares called for redemption
shall be deemed no longer to be outstanding and all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to receive the
cash redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price of $25.00 per Depositary
Share plus any other money and other property payable in respect of such
Preferred Shares. The foregoing shall be further subject to the terms and
conditions of the Designating Amendment.


 


If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.


 


SECTION 2.4.                Registration of Transfers of
Receipts. 
The Company hereby appoints the Depositary as the Registrar and Transfer
Agent for the Receipts and the Depositary hereby accepts such appointment and,
as such, shall register on its books from time to time transfers of Receipts
upon any surrender thereof by the holder in person or by a duly authorized
attorney, properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement, together with evidence of the payment of any transfer
taxes as may be required by law.  Upon
such surrender, the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.


 


SECTION 2.5.                Combinations and Split-ups of
Receipts. 
Upon surrender of a Receipt or Receipts at the Corporate Office or such
other office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.


 


SECTION 2.6.                Surrender of Receipts and
Withdrawal of Preferred Shares. 
Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office or at such office as the Depositary may designate for such
withdrawals, provided that a holder of a Receipt or Receipts may not
withdraw such Preferred Shares (or money and other property, if any,
represented thereby) which has previously been called for redemption.  After such surrender, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole or
fractional shares of such Preferred Shares and all such money and other
property, if any, represented by the Depositary Shares evidenced by the Receipt
or Receipts so surrendered for withdrawal, but holders of such whole or
fractional Preferred Shares 


 


6

















 


will not thereafter be entitled to deposit such Preferred Shares
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Preferred Shares to be withdrawn, the Depositary shall at the same
time, in addition to such number of whole or fractional Preferred Shares and
such money and other property, if any, to be withdrawn, deliver to such holder,
or (subject to Section 2.4) upon his order, a new Receipt or Receipts
evidencing such excess number of Depositary Shares. Delivery of such Preferred
Shares and such money and other property being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of transfer.


 


If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of
Preferred Shares, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such
Preferred Shares be properly endorsed in blank or accompanied by a properly
executed instrument of transfer or endorsement in blank.


 


The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.


 


SECTION 2.7.                Limitations on Execution and
Delivery, Transfer, Split-up, Combination, Surrender and Exchange of Receipts. 
As a condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange of any Receipt, the Depositary,
any of the Depositary’s Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto (including any such tax or charge with respect to the Preferred Shares
being deposited or withdrawn); (ii) the production of proof satisfactory
to it as to the identity and genuineness of any signature (or the authority of
any signature); and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement as may be required by any securities exchange upon which the
deposited Preferred Shares, the Depositary Shares or the Receipts may be
included for quotation or listed.


 


The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts
may be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period
when the register of shareholders of the Company is closed or (ii) if any
such action is deemed reasonably necessary or advisable by the Depositary, any
of the Depositary’s Agents or the Company at any time or from time to time
because of any 


 


7

















 


requirement of law or of any government or governmental body or
commission, or under Article X of the Articles of Incorporation or under any
provision of this Deposit Agreement.


 


SECTION 2.8.                Lost Receipts, etc. In
case any Receipt shall be mutilated or destroyed or lost or stolen, the
Depositary, in its discretion, may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt or in lieu of
and in substitution for such destroyed, lost or stolen Receipt, provided
that the holder thereof provides the Depositary with (i) evidence
reasonably satisfactory to the Depositary of such destruction, loss or theft of
such Receipt, of the authenticity thereof and of his ownership thereof and
(ii) reasonable indemnification satisfactory to the Depositary and the
Company.


 


SECTION 2.9.                Cancellation and Destruction
of Surrendered Receipts. 
All Receipts surrendered to the Depositary or any Depositary’s Agent
shall be cancelled by the Depositary. 
Except as prohibited by applicable law or regulation, the Depositary is
authorized to destroy such Receipts so cancelled.


 


ARTICLE
III



CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY


 


SECTION 3.1.                Filing Proofs, Certificates
and Other Information. 
Any person presenting Preferred Shares for deposit or any holder of a
Receipt may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may reasonably
deem necessary or proper.  The Depositary
or the Company may withhold or delay the delivery of any Receipt, the transfer,
redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Shares represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any
rights or of the proceeds thereof, until such proof or other information is
filed, such certificates are executed or such representations and warranties
are made.


 


SECTION 3.2.                Payment of Fees and Expenses. 
Holders of Receipts shall be obligated to make payments to the
Depositary of certain fees and expenses, as provided in Section 5.7, or provide
evidence reasonably satisfactory to the Depositary that such fees and expenses
have been paid.  Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Shares or
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused, any dividend or other distribution may be
withheld, and any part or all of the Preferred Shares or other property
represented by the Depositary Shares evidenced by such Receipt may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder a reasonable number of days prior to such sale).  Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of
such fees or expenses, the holder of such Receipt remaining liable for any
deficiency.


 


SECTION 3.3.                Representations and
Warranties as to Preferred Shares. 
In the case of the initial deposit of the Preferred Shares hereunder,
the Company and, in the case of subsequent deposits thereof, each person so
depositing Preferred Shares under this Deposit Agreement shall 


 


8

















 


be deemed thereby to represent and warrant that such Preferred Shares
and each certificate therefor are valid and that the person making such deposit
is duly authorized to do so. The Company hereby further represents and warrants
that such Preferred Shares, when issued, will be validly issued, fully paid and
nonassessable. Such representations and warranties shall survive the deposit of
the Preferred Shares and the issuance of Receipts.


 


SECTION 3.4.                Representation and Warranty
as to Receipts and Depositary Shares. 
The Company hereby represents and warrants that the Receipts, when
issued, will evidence legal and valid interests in the Depositary Shares and
each Depositary Share will represent a legal and valid 1/10 fractional interest
in a deposited Preferred Share.  Such
representation and warranty shall survive the deposit of the Preferred Shares
and the issuance of Receipts evidencing the Depositary Shares.


 


ARTICLE
IV



THE PREFERRED SHARES; NOTICES


 


SECTION 4.1.                Cash Distributions. 
Whenever the Depositary shall receive any cash dividend or other cash
distribution on the deposited Preferred Shares, including any cash received
upon redemption of any Preferred Shares pursuant to Section 2.3, the Depositary
shall, subject to Section 3.2, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.4 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided, however,
that in case the Company or the Depositary shall be required to and shall
withhold from any cash dividend or other cash distribution in respect of the
Preferred Shares represented by the Receipts held by any holder an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Receipts subject to such
withholding shall be reduced accordingly. 
The Depositary shall distribute or make available for distribution, as
the case may be, only such amount, however, as can be distributed without
attributing to any holder of Receipts a fraction of one cent, and any balance
not so distributable shall be held by the Depositary (without liability for
interest thereon) and shall be added to and be treated as part of the next sum
received by the Depositary for distribution to record holders of Receipts then
outstanding.


 


SECTION 4.2.                Distributions Other Than Cash. 
Whenever the Depositary shall receive any distribution other than cash
on the deposited Preferred Shares, the Depositary shall, subject to Section
3.2, distribute to record holders of Receipts on the record date fixed pursuant
to Section 4.4 such amounts of the securities or property received by it as
are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders, in any manner
that the Depositary and the Company may deem equitable and practicable for
accomplishing such distribution.  If, in
the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record holders, or if
for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable 


 


9

















 


for the purpose of effecting such distribution, including the sale (at
public or private sale) of the securities or property thus received or any part
thereof, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Section 3.2, be distributed or
made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities or property to the holders of Receipts unless the Company shall
have provided to the Depositary an opinion of counsel stating that such
securities or property have been registered under the Securities Act or do not
need to be registered.


 


SECTION 4.3.                Subscription Rights,
Preferences or Privileges. 
If the Company shall at any time offer or cause to be offered to the
persons in whose names deposited Preferred Shares are registered on the books
of the Company any rights, preferences or privileges to subscribe for or to
purchase any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of issue or offer of any such
rights, preferences or privileges the Company determines upon advice of its
legal counsel that it is not lawful or feasible to make such rights,
preferences or privileges available to the holders of Receipts (by the issue of
warrants or otherwise) or (b) if and to the extent instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if so instructed by the Company, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public
or private sale, at such place or places and upon such terms as it may deem
proper.  The net proceeds of any such
sale shall, subject to Section 3.1 and Section 3.2, be distributed by the
Depositary to the record holders of Receipts entitled thereto as provided by Section
4.1 in the case of a distribution received in cash.  The Company shall not make any distribution
of such rights, preferences or privileges, unless the Company shall have
provided to the Depositary an opinion of counsel stating that such rights, preferences
or privileges have been registered under the Securities Act or do not need to
be registered.


 


If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges.  In no event shall the
Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such
a registration statement shall have become effective or unless the offering and
sale of such securities to such holders are exempt from registration under the
provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel to such effect.


 


If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or 


 


10

















 


privileges to be made available to holders of Receipts, the Company
agrees to use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.


 


SECTION 4.4.                Notice of Dividends; Fixing
of Record Date for Holders of Receipts. 
Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Shares, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Shares are entitled to vote
or of which holders of such Preferred Shares are entitled to notice or (ii) any
election on the part of the Company to redeem any such Preferred Shares, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Preferred
Shares) for the determination of the holders of Receipts who shall be entitled
to receive such dividend, distribution, rights, preferences or privileges or
the net proceeds of the sale thereof, to give instructions for the exercise of
voting rights at any such meeting or to receive notice of such meeting or whose
Depositary Shares are to be so redeemed.


 


SECTION 4.5.                Voting Rights. 
Upon receipt of notice of any meeting at which the holders of deposited
Preferred Shares are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which
shall be provided by the Company and which shall contain (i) such information
as is contained in such notice of meeting, (ii) a statement that the holders of
Receipts at the close of business on a specified record date fixed pursuant to
Section 4.4 will be entitled, subject to any applicable provision of law, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Shares represented by their respective Depositary
Shares and (iii) a brief statement as to the manner in which such instructions
may be given.  Upon the written request
of a holder of a Receipt on such record date, the Depositary shall vote or
cause to be voted the amount of Preferred Shares represented by the Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request.  To the extent such
instructions request the voting of a fractional interest of a share of
deposited Preferred Shares, the Depositary shall aggregate such interest with
all other fractional interests resulting from requests with the same voting
instructions and shall vote the number of whole votes resulting from such
aggregation in accordance with the instructions received in such requests.  Each Preferred Share is entitled to 10 votes
and, accordingly, each Depositary Share is entitled to one vote.  The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred Shares or cause such Preferred
Shares to be voted.  In the absence of
specific instructions from the holder of a Receipt, the Depositary will abstain
from voting to the extent of the Preferred Shares represented by the Depositary
Shares evidenced by such Receipt.  The
Depositary shall not be required to exercise discretion in voting any Preferred
Shares represented by the Depositary Shares evidenced by such Receipt.


 


SECTION 4.6.                Changes Affecting Preferred
Shares and Reclassifications, Recapitalization, etc. Upon any change in par or stated value,
split-up, combination or any other reclassification of Preferred Shares, or
upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or sale of all or
substantially all of the Company’s assets, the Depositary shall, upon the
instructions of the 


 


11

















 


Company: (i) make such adjustments in (a) the fraction of an interest
represented by one Depositary Share in one Preferred Share and (b) the ratio of
the redemption price per Depositary Share to the redemption price of a
Preferred Share, in each case as may be required by or as is consistent with
the provisions of the Designating Amendment to fully reflect the effects of
such change in liquidation value, split-up, combination or other
reclassification of Shares, or of such recapitalization, reorganization,
merger, consolidation or sale and (ii) treat any shares or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Shares as new
deposited property under this Deposit Agreement, and Receipts then outstanding
shall thenceforth represent the proportionate interests of holders thereof or
the new deposited property so received in exchange for or upon conversion or in
respect of such Preferred Shares. In any such case the Depositary may, in its
discretion, with approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Shares
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred Shares represented thereby only into or for,
as the case may be, the kind and amount of shares and other securities and
property and cash into which the deposited Preferred Shares evidenced by such
Receipts might have been converted or for which such Preferred Shares might
have been exchanged or surrendered immediately prior to the effective date of
such transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Preferred Shares for securities or property or cash of the surviving
corporation in connection with the transactions set forth above. The Company
shall cause any such surviving corporation (if other than the Company) expressly
to assume the obligations of the Company hereunder.


 


SECTION 4.7.                Inspection of Reports. 
The Depositary shall make available for inspection by holders of
Receipts at the Corporate Office and at such other places as it may from time
to time deem advisable during normal business hours any reports and
communications received from the Company that are both received by the
Depositary as the holder of deposited Preferred Shares and made generally
available to the holders of the Preferred Shares.  In addition, the Depositary shall transmit
certain notices and reports to the holders of Receipts as provided in Section
5.5.


 


SECTION 4.8.                Lists of Receipt Holders. 
Promptly upon request from time to time by the Company, the Depositary
shall furnish to the Company a list, as of a recent date specified by the
Company, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.


 


SECTION 4.9.                Tax and Regulatory Compliance. 
The Depositary shall be responsible for (i) preparation and mailing of
form 1099s for all open and closed accounts, (ii) foreign tax withholding,
(iii) withholding 28% (or any withholding as may be required at the then
applicable rate) of dividends from eligible holders of Receipts if directed to
do so by the Company or required to do so by applicable law, (iv) mailing W-9
forms to new holders of Receipts without a 


 


12

















 


certified taxpayer identification number, (v) processing certified
W-9 forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.


 


SECTION 4.10.              Withholding. 
Notwithstanding any other provision of this Deposit Agreement, in the
event that the Depositary determines that any distribution in property is
subject to any tax which the Depositary is obligated by law to withhold, the
Depositary may dispose of all or a portion of such property in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of such taxes to the holders of Receipts entitled thereto in proportion to the
number of Depositary Shares held by them respectively.


 


ARTICLE
V



THE DEPOSITARY AND THE COMPANY


 


SECTION 5.1.                Maintenance of Offices,
Agencies and Transfer Books by the Depositary and the Registrar. 
The Depositary shall maintain at the Corporate Office facilities for the
execution and delivery, transfer, surrender and exchange, split-up, combination
and redemption of Receipts and deposit and withdrawal of Preferred Shares and
at the offices of the Depositary’s Agents, if any, facilities for the delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts and deposit and withdrawal of Preferred Shares, all in accordance with
the provisions of this Deposit Agreement.


 


The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law.  The Depositary may close
such books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.


 


If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange, Inc. or any other stock exchange, the Depositary may,
with the approval of the Company, appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with the requirements of such Exchange. 
Such Registrar (which may be the Depositary if so permitted by the
requirements of such Exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company.  If the Receipts, such
Depositary Shares or such Preferred Shares are listed on one or more other
stock exchanges, the Depositary will, at the request and expense of the
Company, arrange such facilities for the delivery, transfer, surrender,
redemption and exchange of such Receipts, such Depositary Shares or such
Preferred Shares as may be required by law or applicable stock exchange
regulations.


 


SECTION 5.2.                Prevention or Delay in
Performance by the Depositary, the Depositary’s Agents, the Registrar or the
Company. Neither the Depositary, any
Depositary’s Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by 


 


13

















 


reason of any provision of any present or future law or regulation thereunder
of the United States of America or of any other governmental authority or, in
the case of the Depositary, the Depositary’s Agent or the Registrar, by reason
of any provision, present or future, of the Articles of Incorporation or the
Designating Amendment or, in the case of the Company, the Depositary, the
Depositary’s Agent or the Registrar, by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
the Depositary’s Agent, the Registrar or the Company shall be prevented or
forbidden from doing or performing any act or thing that the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary’s Agent, any Registrar or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this
Deposit Agreement provide shall or may be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement.


 


SECTION 5.3.                Obligations of the
Depositary, the Depositary’s Agents, the Registrar and the Company. 
Neither the Depositary, any Depositary’s Agent, any Registrar nor the
Company assumes any obligation or shall be subject to any liability under this
Deposit Agreement or any Receipt to holders of Receipts other than from acts or
omissions arising out of conduct constituting bad faith, negligence (in the
case of any action or inaction with respect to the voting of the deposited
Preferred Shares), gross negligence or willful misconduct in the performance of
such duties as are specifically set forth in this Deposit Agreement.


 


Neither the Depositary, any Depositary’s Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred
Shares, Depositary Shares or Receipts that in its reasonable opinion may
involve it in expense or liability unless indemnity reasonably satisfactory to
it against all expense and liability be furnished as often as may be required.


 


Neither the Depositary, any Depositary’s Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information
provided by any person presenting Preferred Shares for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information.  The Depositary,
any Depositary’s Agent, any Registrar and the Company may each rely and shall
each be protected in acting upon any written notice, request, direction or
other document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties.


 


In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.6 hereof in connection with any
action so taken.


 


The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited Preferred Shares or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary.  The Depositary undertakes,
and any Registrar shall be required to 


 


14

















 


undertake, to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Depositary or any
Registrar.


 


The Depositary, its parent, affiliate, or subsidiaries, any
Depositary’s Agent, and any Registrar may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary’s Agent hereunder.  The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates or act in any other capacity for the Company
or its affiliates.


 


It is intended that neither the Depositary nor any Depositary’s Agent
shall be deemed to be an “issuer” of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary’s Agent are acting
only in a ministerial capacity as Depositary for the deposited Preferred
Shares; provided, however, that the Depositary agrees to comply
with all information reporting and withholding requirements applicable to it under
law or this Deposit Agreement in its capacity as Depositary.


 


The Company agrees that it will register the deposited Preferred Shares
and the Depositary Shares if required by the applicable securities laws.


 


SECTION 5.4.                Resignation and Removal of
the Depositary; Appointment of Successor Depositary. 
The Depositary may at any time resign as Depositary hereunder by notice
of its election to do so delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.


 


The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.


 


In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000.  If a successor depositary
shall not have been appointed in 60 days, the resigning Depositary may petition
a court of competent jurisdiction to appoint a successor depositary.  Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Shares and any 


 


15

















 


moneys or property held hereunder to such successor and shall deliver
to such successor a list of the record holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
record holders of Receipts.


 


Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act.  Such successor depositary may execute the
Receipts either in the name of the predecessor depositary or in the name of the
successor depositary.


 


SECTION 5.5.                Notices, Reports and
Documents.   
The Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the record holders
of Receipts, in each case at the address recorded in the Depositary’s books,
copies of all notices and reports (including financial statements) required by
law, by the rules of any national securities exchange upon which the Preferred
Shares, the Depositary Shares or the Receipts are included for quotation or
listed or by the Articles of Incorporation and the Designating Amendment to be
furnished by the Company to holders of the deposited Preferred Shares and, if
requested by the holder of any Receipt, a copy of this Deposit Agreement, the
form of Receipt, the Designating Amendment and the form of Preferred
Shares.  Such transmission will be at the
Company’s expense and the Company will provide the Depositary with such number
of copies of such documents as the Depositary may reasonably request.  In addition, the Depositary will transmit to
the record holders of Receipts at the Company’s expense such other documents as
may be requested by the Company.


 


SECTION 5.6.                Indemnification by the
Company. 
The Company agrees to indemnify the Depositary, any Depositary’s Agent
and any Registrar against, and hold each of them harmless from, any liability,
costs and expenses (including reasonable attorneys’ fees) that may arise out
of, or in connection with, its acting as Depositary, Depositary’s Agent or
Registrar, respectively, under this Deposit Agreement and the Receipts, except
for any liability arising out of the willful misconduct, gross negligence,
negligence (in the case of any action or inaction with respect to the voting of
the deposited Preferred Shares) or bad faith on the part of any such person or
persons.  The obligations of the Company
set forth in this Section 5.6 shall survive any succession of any Depositary,
Registrar or Depositary’s Agent or termination of this Deposit Agreement.


 


SECTION 5.7.                Fees, Charges and Expenses. 
No charges and expenses of the Depositary or any Depositary’s Agent
hereunder shall be payable by any person, except as provided in this Section
5.7.  The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
this Deposit Agreement.  The Company
shall also pay all fees and expenses of the Depositary in connection with the
initial deposit of the Preferred Shares and the initial issuance of the
Depositary Shares evidenced by the Receipts, any redemption of the Preferred
Shares at the option of the Company and all withdrawals of the Preferred Shares
by holders of Depositary Shares.  If a
holder of Receipts requests the Depositary to perform duties not required under
this Deposit Agreement, the Depositary shall notify the holder of the cost of
the performance of such duties prior to the performance thereof.  Such holder will be liable for the charges
and expenses related to such performance. 
All other fees and expenses of the Depositary and any Depositary’s Agent
hereunder and of any Registrar (including, in each case, fees and expenses of
counsel) incident to 


 


16

















 


the performance of their respective obligations hereunder will be
promptly paid as previously agreed between the Depositary and the Company. The
Depositary shall present its statement for fees and expenses to the Company
every month or at such other intervals as the Company and the Depositary may
agree.


 


ARTICLE
VI



AMENDMENT AND TERMINATION


 


SECTION 6.1.                Amendment. 
The form of the Receipts and any provision of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect that they may deem necessary or desirable; provided,
however, that no such amendment (other than any change in the fees of
any Depositary, Registrar or Transfer Agent) which (i) shall materially and
adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Shares pursuant to the Designating Amendment shall be effective
unless such amendment shall have been approved by the holders of at least a
majority of the Depositary Shares then outstanding.  In no event shall any amendment impair the
right, subject to the provisions of Section 2.6 and Section 2.7 and Article
III, of any holder of any Depositary Shares to surrender the Receipt evidencing
such Depositary Shares with instructions to the Depositary to deliver to the
holder the deposited Preferred Shares and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law.  Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.


 


SECTION 6.2.                Termination. 
This Deposit Agreement may be terminated by the Company upon not less
than 30 days’ prior written notice to the Depositary if (i) such termination is
necessary to preserve the Company’s status as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (or any successor
provisions) or (ii) the holders of a majority of the Preferred Shares consent
to such termination, whereupon the Depositary shall deliver or make available
to each holder of a Receipt, upon surrender of the Receipt held by such holder,
such number of whole or fractional shares of deposited Preferred Shares that
are represented by the Depositary Shares evidenced by such Receipt, together
with any other property held by the Depositary in respect of such Receipt.  In the event that this Deposit Agreement is
terminated pursuant to clause (i) of the immediately preceding sentence, the
Company hereby agrees to use its best efforts to list the Preferred Shares
issued upon surrender of the Receipt evidencing the Depositary Shares
represented thereby on a national securities exchange.  This Deposit Agreement will automatically
terminate if (i) all outstanding Depositary Shares shall have been redeemed
pursuant to Section 2.3 or (ii) there shall have been made a final distribution
in respect of the deposited Preferred Shares in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.


 


17

















 


Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary’s Agent and any Registrar under
Section 5.6 and Section 5.7.


 


ARTICLE
VII



MISCELLANEOUS


 


SECTION 7.1.                Counterparts. 
This Deposit Agreement may be executed in any number of counterparts,
and by each of the parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument.  Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall
be effective as delivery of a manually executed counterpart of this Deposit
Agreement.  Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary’s Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary’s Agents, if any, by any holder of a
Receipt.


 


SECTION 7.2.                Exclusive Benefit of Parties. 
This Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not be deemed to
give any legal or equitable right, remedy or claim to any other person
whatsoever.


 


SECTION 7.3.                Invalidity of Provisions. 
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or unenforceable
in any respect, the validity, legality or enforceability of the remaining
provisions contained herein or therein shall in no way be affected, prejudiced
or disturbed thereby.


 


SECTION 7.4.                Notices. 
Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Company at:


 


DUKE REALTY CORPORATION


600 East 96th Street


Suite 100


Indianapolis, Indiana  46240


Attention:  Matthew A. Cohoat


Telephone No.:  (317) 808-6065


 


or at any other
address of which the Company shall have notified the Depositary in writing.


 


Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.


 


18

















 


Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.


 


Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or telex or telecopier message) is deposited, postage prepaid, in a post office
letter box.  The Depositary or the
Company may, however, act upon any telegram or telex or telecopier message
received by it from the other or from any holder of a Receipt, notwithstanding
that such telegram or telex or telecopier message shall not subsequently be
confirmed by letter as aforesaid.


 


SECTION 7.5.                Depositary’s Agents. 
The Depositary may from time to time appoint Depositary’s Agents to act
in any respect for the Depositary for the purposes of this Deposit Agreement
and may at any time appoint additional Depositary’s Agents and vary or
terminate the appointment of such Depositary’s Agents.  The Depositary will notify the Company of any
such action.


 


SECTION 7.6.                Holders of Receipts Are
Parties. 
The holders of Receipts from time to time shall be deemed to be parties
to this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of delivery thereof.


 


SECTION 7.7.                Governing Law. 
This Deposit Agreement and the Receipts and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, and
construed in accordance with, the law of the State of New York applicable to
agreements made and to be performed in said State.


 


SECTION 7.8.                Inspection of Deposit
Agreement and Designating Amendment. 
Copies of this Deposit Agreement and the Designating Amendment shall be
filed with the Depositary and the Depositary’s Agents and shall be open to
inspection during business hours at the Corporate Office and the respective
offices of the Depositary’s Agents, if any, by any holder of any Receipt.


 


SECTION 7.9.                Headings. 
The headings of articles and sections in this Deposit Agreement and in
the form of the Receipt set forth in Exhibit A hereto have been inserted for
convenience only and are not to be regarded as part of this Deposit Agreement
or to have any bearing upon the meaning or interpretation of any provision
contained herein or in the Receipts.


 


19

















 


IN WITNESS WHEREOF, Duke Realty Corporation and American Stock Transfer
& Trust Co. have duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.


 


	
   

  	
   

  	
   

  	
  DUKE REALTY
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Howard L.
  Feinsand

  
	
  Attest:  

  	
   

  	
   

  	
  Howard L.
  Feinsand,  

  
	
   

  	
   

  	
   

  	
   

  	
  Executive Vice
  President, General Counsel and Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Kisha L.
  Parker

  	
   

  	
   

  	
   

  
	
  Kisha L. Parker,

  	
   

  	
   

  	
   

  
	
  Corporate
  Attorney

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  AMERICAN STOCK
  TRANSFER & TRUST CO.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Herbert
  Lemmer

  
	
  Attest:

  	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Susan Silber

  	
   

  	
   

  	
   

  
	
  Assistant
  Secretary

  	
   

  	
   

  	
   

  



 


20

















 


Exhibit A


 


The Depositary Shares evidenced by this Depositary Receipt are subject
to restrictions on ownership and transfer for the purpose of the Company’s
maintenance of its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended.  In
order to maintain such status, the Company’s Articles of Amendment designating
the terms of the 6.95% Series M Cumulative Redeemable Preferred Shares imposes
limitations on the number of 6.95% Series M Cumulative Redeemable Preferred
Shares that may be owned by any single person or affiliated group.  All capitalized terms in this legend have the
meanings defined in such Articles of Amendment. 
Transfers in violation of the restrictions described above shall be void
ab  initio.


 


The Company will furnish to the holder hereof upon request and without
charge a complete written statement of the terms and conditions of the 6.95%
Series M Cumulative Redeemable Preferred Shares.  Requests for such statement may be directed
to the Secretary of the Company.


 


[FORM OF FACE OF
RECEIPT]


 




	
  DR-

  

  CUSIP 264411 72 9

  This Receipt is transferable in

  New York City.

  See reverse for certain definitions.

  



  	
  CERTIFICATE FOR
  NOT MORE THAN 7,360,000 DEPOSITARY SHARES

  

  RECEIPT FOR DEPOSITARY SHARES,

  EACH REPRESENTING 1/10 OF A 6.95% SERIES M CUMULATIVE

  REDEEMABLE PREFERRED SHARE

  DUKE REALTY CORPORATION

  (an Indiana corporation)

  	
   

  






 


 


American Stock Transfer & Trust Company, as Depositary (the
“Depositary”), hereby certifies that Cede & Co. is the registered owner of 7,360,000 fully paid and non-assessable DEPOSITARY
SHARES (“Depositary Shares”), each Depositary Share representing 1/10 of one
6.95% Series M Cumulative Redeemable Preferred Share, $0.01 par value per share
(the “Shares”), of Duke Realty Corporation, an Indiana corporation (the
“Company”), on deposit with the Depositary, subject to the terms and entitled
to the benefits of the Deposit Agreement dated as of January 31, 2006 (the
“Deposit Agreement”), among the Company, the Depositary and the holders from
time to time of Receipts for Depositary Shares. 
By accepting this Receipt, the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit
Agreement.  This Receipt shall not be
valid or obligatory for any purpose or entitled to any benefits under the
Deposit Agreement unless it shall have been executed by the Depositary by the
manual or facsimile signature of a duly authorized officer or, if a Registrar
in respect of the Receipts (other than the Depositary) shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.


 


Dated:


 


	
   

  	
   

  	
   

  	
  American Stock
  Transfer & Trust Company

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
  Attest:

  	
   

  	
   

  	
  Authorized
  Signatory

  



 


21

















 


[FORM OF REVERSE
RECEIPT]


 


DUKE REALTY CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED
HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY
OF THE DESIGNATING AMENDMENT WITH RESPECT TO THE SERIES M CUMULATIVE REDEEMABLE
PREFERRED SHARES OF DUKE REALTY CORPORATION ANY SUCH REQUEST SHALL BE ADDRESSED
TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.


 


The following abbreviations when used in the instructions on the face
of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.


 


 




	
  TEN COM -

  	
   

  	
  as tenant in
  common

  	
   

  	
  UNIF GIFT MIN
  ACT - 

  	
   

  	
  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Cust)

  	
  (Minor)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TEN ENT -

  	
   

  	
  as tenants by
  the entireties

  	
   

  	
  Under Uniform
  Gifts to Minors Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  (State)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JT TEN -

  	
   

  	
  as joint tenants
  with right of survivorship and not as tenants in common

  	
   

  	
   

  
									






 


Additional abbreviations may also be used though not in the above list.


 


ASSIGNMENT


 




	
   

  	
  For value
  received,

  	
   

  	
  hereby sell(s),
  assign(s) and transfer(s) unto

  	
   

  






 


PLEASE INSERT
SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE




	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  






PLEASE PRINT OR
TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE




	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  






 




	
   

  	
  Depositary
  Shares represented by the within Receipt, and do hereby irrevocably
  constitute and appoint

  
	
   

  	
  Attorney to
  transfer the said Depositary Shares on the books of the within named
  Depositary with full power of  

  
	
  substitution in
  the premises.

  






 


	
  Dated:

  	
   

  



 


NOTICE:                                                The signature to the assignment must
correspond with the name as written upon the face of this Receipt in every
particular, without alteration or enlargement or any change whatever.


 


 


 


	
  Signature

  	
   

  



 


22

















 


TABLE OF CONTENTS


 




	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  I

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  “Articles of Incorporation”

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.2.

  	
  “Company”

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.3.

  	
  “Corporate Office”

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.4.

  	
  “Deposit Agreement”

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.5.

  	
  “Depositary”

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.6.

  	
  “Depositary Share”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.7.

  	
  “Depositary’s Agent”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.8.

  	
  “Designating Amendment”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.9.

  	
  “Preferred Shares”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.10.

  	
  “Receipt”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.11.

  	
  “record date”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.12.

  	
  “record holder” or “holder”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.13.

  	
  “Registrar”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.14.

  	
  “Securities Act”

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 1.15.

  	
  “Transfer Agent”

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  II

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FORM
  OF RECEIPTS, DEPOSIT OF PREFERRED SHARES,

  	
   

  
	
   

  	
  EXECUTION
  AND DELIVERY, TRANSFER,

  	
   

  
	
   

  	
  SURRENDER
  AND REDEMPTION OF RECEIPTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
  Form and Transferability of Receipts

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 2.2.

  	
  Deposit of Preferred Shares; Execution and Delivery of Receipts in
  Respect Thereof

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.3.

  	
  Optional Redemption of Preferred Shares for Cash

  	
  5

  
	
   

  	
   

  	
   

  
	
  Section 2.4.

  	
  Registration of Transfers of Receipts

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.5.

  	
  Combinations and Split-ups of Receipts

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.6.

  	
  Surrender of Receipts and Withdrawal of Preferred Shares

  	
  6

  
	
   

  	
   

  	
   

  
	
  Section 2.7.

  	
  Limitations on Execution and Delivery, Transfer, Split-up, Combination,
  Surrender and Exchange of Receipts

  	
  7

  
	
   

  	
   

  	
   

  






 


i

















 




	
   

  	
   

  	
  Page

  
	
  Section 2.8.

  	
  Lost Receipts, etc.

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 2.9.

  	
  Cancellation and Destruction of Surrendered Receipts

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  III

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CERTAIN
  OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Filing Proofs, Certificates and Other Information

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.2.

  	
  Payment of Fees and Expenses

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.3.

  	
  Representations and Warranties as to Preferred Shares

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.4.

  	
  Representation and Warranty as to Receipts and Depositary Shares

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  IV

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  PREFERRED SHARES; NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Cash Distributions

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 4.2.

  	
  Distributions Other Than Cash

  	
  9

  
	
   

  	
   

  	
   

  
	
  Section 4.3.

  	
  Subscription Rights, Preferences or Privileges

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 4.4.

  	
  Notice of Dividends; Fixing of Record Date for Holders of Receipts

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 4.5.

  	
  Voting Rights

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 4.6.

  	
  Changes Affecting Preferred Shares and Reclassifications,
  Recapitalization, etc.

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 4.7.

  	
  Inspection of Reports

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 4.8.

  	
  Lists of Receipt Holders

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 4.9.

  	
  Tax and Regulatory Compliance

  	
  12

  
	
   

  	
   

  	
   

  
	
  Section 4.10.

  	
  Withholding

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  V

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  DEPOSITARY AND THE COMPANY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Maintenance of Offices, Agencies and Transfer Books by the Depositary
  and the Registrar

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 5.2.

  	
  Prevention or Delay in Performance by the Depositary, the Depositary’s
  Agents, the Registrar or the Company

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 5.3.

  	
  Obligations of the Depositary, the Depositary’s Agents, the Registrar
  and the Company

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 5.4.

  	
  Resignation and Removal of the Depositary; Appointment of Successor
  Depositary

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 5.5.

  	
  Notices, Reports and Documents

  	
  16

  
	
   

  	
   

  	
   

  






 


ii

















 




	
   

  	
   

  	
  Page

  
	
  Section 5.6.

  	
  Indemnification by the Company

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 5.7.

  	
  Fees, Charges and Expenses

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  VI

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMENDMENT
  AND TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Amendment

  	
  17

  
	
   

  	
   

  	
   

  
	
  Section 6.2.

  	
  Termination

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE
  VII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Counterparts

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 7.2.

  	
  Exclusive Benefit of Parties

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 7.3.

  	
  Invalidity of Provisions

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 7.4.

  	
  Notices

  	
  18

  
	
   

  	
   

  	
   

  
	
  Section 7.5.

  	
  Depositary’s Agents

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 7.6.

  	
  Holders of Receipts Are Parties

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 7.7.

  	
  Governing Law

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 7.8.

  	
  Inspection of Deposit Agreement and Designating Amendment

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 7.9.

  	
  Headings

  	
  19

  






 


 


iii