<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 10, 1994
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DUKE REALTY INVESTMENTS, INC.
AND DUKE REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DUKE REALTY INVESTMENTS, INC.--INDIANA DUKE REALTY INVESTMENTS, INC.--35-1740409
DUKE REALTY LIMITED PARTNERSHIP--INDIANA DUKE REALTY LIMITED PARTNERSHIP--35-1898425
</TABLE>
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8888 KEYSTONE CROSSING
SUITE 1200
INDIANAPOLIS, INDIANA 46240
(317) 574-3531
(Address, including zip code, and telephone number, including area code, of
principal executive offices)
THOMAS L. HEFNER
8888 KEYSTONE CROSSING
SUITE 1200
INDIANAPOLIS, INDIANA 46240
(317) 574-3531
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
DAVID A. BUTCHER, ESQ. ROBERT E. KING, JR., ESQ.
BOSE MCKINNEY & EVANS ROGERS & WELLS
135 NORTH PENNSYLVANIA STREET, SUITE 2700 200 PARK AVENUE
INDIANAPOLIS, INDIANA 46204 NEW YORK, NEW YORK 10166
(317) 684-5000 (212) 878-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. / X /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED (1) REGISTERED PRICE OFFERING PRICE REGISTRATION
(2)(3) PER UNIT (2) (2)(3)(4) FEE (4)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value
Preferred Stock, $.01 par value
Debt Securities
Guarantees (5)
Total . . . . . . . . . . . . $320,000,000 (3) $320,000,000 $110,344.83
- -------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 2
(1) This Registration Statement also covers contracts which may be issued by
the Registrants under which the counterparty may be required to purchase
Debt Securities, Preferred Stock or Common Stock covered hereby.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrants. The amount to be registered,
proposed maximum offering price per unit and proposed aggregate offering
price for each class of Securities is not specified pursuant to General
Instruction II.D to Form S-3 under the Securities Act of 1933.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(5) Debt Securities issued by Duke Realty Limited Partnership will be
accompanied by a Guaranty to be issued by Duke Realty Investments, Inc.
None of the proceeds will be received by Duke Realty Investments, Inc. for
the Guarantees.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE> 3
SUBJECT TO COMPLETION, DATED AUGUST 10, 1994
PROSPECTUS
$320,000,000
DUKE REALTY INVESTMENTS, INC.
Common Stock, Preferred Stock and Guarantees
DUKE REALTY LIMITED PARTNERSHIP
Guaranteed Debt Securities
Duke Realty Investments, Inc. (the "Company") may from time to time offer
in one or more series (i) shares of Common Stock, $.01 par value ("Common
Stock"), (ii) shares of preferred stock, $.01 par value ("Preferred Stock") and
(iii) unconditional and irrevocable guarantees ("Guarantees") of unsecured debt
securities ("Debt Securities") issued by Duke Realty Limited Partnership (the
"Operating Partnership"), with an aggregate public offering price of up to
$320,000,000 (or its equivalent based on the exchange rate at the time of sale)
in amounts, at prices and on terms to be determined at the time of offering.
The Operating Partnership may from time to time offer in one or more series
guaranteed unsecured Debt Securities. The Common Stock, Preferred Stock and
guaranteed Debt Securities, (collectively, the "Securities") may be offered,
separately or together, in separate series in amounts, at prices and on terms
to be set forth in one or more supplements to this Prospectus (each a
"Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable: (i) in the case of Common Stock, any initial
public offering price or, if applicable, information regarding the exchange of
units of partnership interest of the Operating Partnership ("Units") for Common
Stock; (ii) in the case of Preferred Stock, the specific title and stated
value, any dividend, liquidation, redemption, conversion, voting and other
rights, and any initial public offering price; and (iii) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Operating
Partnership or repayment at the option of the holder, terms for sinking fund
payments, terms for conversion into Preferred Stock or Common Stock of the
Company, covenants and any initial public offering price. In addition, such
specific terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Securities, in each case as may be appropriate
to preserve the status of the Company as a real estate investment trust
("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by the Company or the Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the
sale of any of the Securities, their names, and any applicable purchase price,
fee, commission or discount arrangement between or among them, will be set
forth, or will be calculable from the information set forth, in an accompanying
Prospectus Supplement. See "Plan of Distribution." No Securities may be sold
without delivery of a Prospectus Supplement describing the method and terms of
the offering of such series of Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is , 1994.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the Public Reference Section
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549; Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and New York Regional Office, 7 World Trade Center,
New York, New York 10048. Such reports, proxy statements and other information
concerning the Company can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon their written or oral request, a copy of any
or all of the documents incorporated herein by reference (other than exhibits
to such documents). Written requests for such copies should be addressed to
8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240, Attn: Investor
Relations, telephone number (317) 574-3531.
The Company and the Operating Partnership have filed with the Commission a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933 as amended (the "Securities Act"), with respect to the
Securities offered hereby. For further information with respect to the
Company, the Operating Partnership and the Securities offered hereby,
reference is made to the Registration Statement and exhibits thereto.
Statements contained in this Prospectus as to the contents of any contract or
other documents are not necessarily complete, and in each instance, reference
is made to the copy of such contract or documents filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company under the Exchange Act with
the Commission are incorporated in this Prospectus by reference and are made a
part hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1993.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994 and June 30, 1994.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to termination
of the offering of all Securities to which this Prospectus relates shall be
deemed to be incorporated by reference in this Prospectus and shall be part
hereof from the date of filing of such document.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus (in the case of a statement in a previously-filed
document incorporated or deemed to be incorporated by reference herein), in any
accompanying Prospectus Supplement relating to a specific offering of
Securities or in any other subsequently filed document that is also
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus or any accompanying Prospectus Supplement. Subject to the
foregoing, all information appearing in this Prospectus and each accompanying
Prospectus Supplement is qualified in its entirety by the information appearing
in the documents incorporated by reference.
2
<PAGE> 5
THE COMPANY
The Company is a fully integrated commercial real estate firm which, at
June 30, 1994, owned direct or indirect interests in a portfolio of 130
income-producing industrial, office and retail properties (the "Properties"),
together with approximately 1,000 acres of land (the "Land") for future
development. The Properties consist of industrial, office and retail
properties, located in Indiana, Ohio, Illinois, Kentucky, Michigan, Missouri,
Tennessee and Wisconsin. As of June 30, 1994, the Properties consisted of 13.4
million rentable square feet, which were approximately 93% leased to
approximately 1,000 tenants.
All of the Company's interests in the Properties and Land are held by, and
substantially all of its operations relating to the Properties and Land are
conducted through the Operating Partnership. The Operating Partnership holds
a 100% interest in all but 22 of the Properties and substantially all of the
Land. The Company controls the Operating Partnership as the sole general
partner and owner, as of June 30, 1994, of approximately 78% of the Operating
Partnership's outstanding units of partnership interest ("Units"). Beginning
October 4, 1994 (or earlier upon the occurrence of certain change of control
events), each Unit may be exchanged by the holder thereof for one share
(subject to certain adjustments) of the Common Stock. With each such exchange,
the number of Units owned by the Company and, therefore, the Company's
percentage interest in the Operating Partnership, will increase.
In addition to owning the Properties and the Land, the Operating
Partnership also provides services associated with leasing, property
management, real estate development, construction and miscellaneous tenant
services (the "Related Businesses") for the Properties. The Company also
provides services associated with the Related Businesses to third parties and
owners of indirectly owned Properties through Duke Realty Services Limited
Partnership on a fee basis.
The Company's experienced staff of approximately 350 employees at June 30,
1994 provides a full range of real estate services from executive offices
headquartered in Indianapolis, and from five regional offices located in the
Cincinnati, Columbus, Decatur, Detroit and Nashville metropolitan areas.
The Company is an Indiana corporation that was originally incorporated in
the State of Delaware in 1985, and reincorporated in the State of Indiana in
1992. The Company's executive offices are located at 8888 Keystone Crossing,
Suite 1200, Indianapolis, Indiana 46240, and its telephone number is (317)
574-3531.
USE OF PROCEEDS
The Company is required by the terms of the partnership agreement for the
Operating Partnership to invest the net proceeds of any sale of Common Stock or
Preferred Stock in the Operating Partnership in exchange for additional Units.
Unless otherwise specified in the applicable Prospectus Supplement, the Company
and the Operating Partnership intend to use the net proceeds from the sale of
Securities for general corporate purposes, including the development and
acquisition of additional properties and other acquisition transactions, the
payment of certain outstanding debt, and improvements to certain properties in
the Company's portfolio.
3
<PAGE> 6
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges for the periods shown:
<TABLE>
<CAPTION>
Six Months
Ended
June 30 Year Ended December 31,
---------- ---------------------------------------------
1994 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.46x 1.56x .88x(1) .75x(1) .75x(1) .92x(1)
</TABLE>
----------
(1) Earnings were inadequate to cover fixed charges by
$637,000 in 1989, $1,886,000 in 1990, $2,006,000 in 1991
and $903,000 in 1992. These deficiencies occurred prior
to the Company's reorganization in October, 1993.
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings consist of income from continued
operations and fixed charges. Fixed charges consist of interest expense
(including interest costs capitalized) and the amortization of debt issuance
costs. To date, the Company has not issued any Preferred Stock; therefore, the
ratios of earnings to combined fixed charges and preferred share dividends are
unchanged from the ratios presented in this section.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
GENERAL
The Debt Securities will be direct unsecured obligations of the Operating
Partnership and may be either senior Debt Securities ("Senior Securities") or
subordinated Debt Securities ("Subordinated Securities"). The Debt Securities
will be issued under one or more indentures. Senior Securities and
Subordinated Securities may be issued pursuant to separate indentures
(respectively, a "Senior Indenture" and a "Subordinated Indenture"), in each
case between the Operating Partnership and a trustee (a "Trustee"). The
Indentures will be subject to and governed by the Trust Indenture Act of 1939,
as amended (the "TIA"). The statements made under this heading relating to the
Debt Securities and the Indentures are summaries of the anticipated provisions
thereof and do not purport to be complete and are qualified in their entirety
by reference to the Indentures and such Debt Securities.
TERMS
The indebtedness represented by Senior Securities will rank equally with
all other unsecured and unsubordinated indebtedness of the Operating
Partnership. The indebtedness represented by Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Debt of the Operating Partnership as described under "--Subordination."
Except as set forth in any Prospectus Supplement, the Debt Securities may
be issued without limit as to aggregate principal amount, in one or more
series, in each case as established from time to time by the Operating
Partnership or as established in the applicable Indenture or in one or more
indentures supplemental to such Indenture. All Debt Securities of one series
need not be issued at the same time and, unless otherwise provided, a series
may be reopened,
4
<PAGE> 7
without the consent of the holders of the Debt Securities of such series, for
issuances of additional Debt Securities of such series.
Any Debt Securities issued by the Operating Partnership will be
unconditionally and irrevocably guaranteed by the Company as to payment of
principal, premium, if any, and interest.
It is anticipated that any Indenture will provide that there may be more
than one Trustee thereunder, each with respect to one or more series of Debt
Securities. Any Trustee under an Indenture may resign or be removed with
respect to one or more series of Debt Securities, and a successor Trustee may
be appointed to act with respect to such series. In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by any
other Trustee, and, except as otherwise indicated herein, any action described
herein to be taken by each Trustee may be taken by each such Trustee with
respect to, and only with respect to, the one or more series of Debt Securities
for which it is Trustee under the applicable Indenture.
The Prospectus Supplement relating to the series of Debt Securities being
offered will contain the specific terms thereof and of the Guarantee relating
to such Debt Securities, including:
(1) The title of such Debt Securities and whether such Debt Securities
are Senior Securities or Subordinated Securities;
(2) The aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
(3) The percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof, or (if applicable) the portion
of the principal amount of such Debt Securities that is convertible
into Common Stock or Preferred Stock, or the method by which any such
portion shall be determined;
(4) If convertible, the terms on which such Debt Securities are
convertible, including the initial conversion price or rate and the
conversion period and any applicable limitations on the ownership or
transferability of the Common Stock or Preferred Stock receivable on
conversion;
(5) The date or dates, or the method for determining such date or dates,
on which the principal of such Debt Securities will be payable;
(6) The rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(7) The date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the
persons to whom such interest shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(8) The place or places where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, where such
Debt Securities may be surrendered for conversion or registration of
transfer or exchange and where notices or demands to or upon the
Operating Partnership in respect of such Debt Securities and the
applicable Indenture may be served;
5
<PAGE> 8
(9) The period or periods within which, the price or prices at which and
the other terms and conditions upon which such Debt Securities may be
redeemed, as a whole or in part, at the option of the Operating
Partnership, if the Operating Partnership is to have such an option;
(10) The obligation, if any, of the Operating Partnership to redeem, repay
or purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Debt Securities will be
redeemed, repaid or purchased, as a whole or in part, pursuant to
such obligation;
(11) If other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;
(12) Whether the amount of payments of principal of (and premium, if any)
or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula
or method may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or currencies) and the
manner in which such amounts shall be determined;
(13) The events of default or covenants of such Debt Securities, to the
extent different from those described herein;
(14) Whether such Debt Securities will be issued in certificated or
book-entry form;
(15) Whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than
$1,000 and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(16) The applicability, if any, of the defeasance and covenant defeasance
provisions described herein, or any modification thereof;
(17) Whether and under what circumstances the Operating Partnership will
pay any additional amounts on such Debt Securities in respect of any
tax, assessment or governmental charge and, if so, whether the
Operating Partnership will have the option to redeem such Debt
Securities in lieu of making such payment; and
(18) Any other terms of such Debt Securities.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special U.S. federal income tax,
accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Except as may be set forth in any Prospectus Supplement, the Debt
Securities will not contain any provisions that would limit the ability of the
Operating Partnership to incur indebtedness or that would afford holders of
Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Operating Partnership or in the event of a change of
control. Restrictions on ownership and transfers of the Company's Common Stock
and Preferred Stock are designed to preserve its status as a REIT and,
therefore, may act to prevent or hinder a change of control. See "Description
of Common Stock--Certain Provisions Affecting Change of Control" and
"Description of Preferred Stock--Restrictions on Ownership." Reference is made
to the applicable Prospectus Supplement for information with respect to any
deletions from, modifications of, or additions to, the events of default or
covenants of the Operating Partnership that are described below, including any
addition of a covenant or other provision providing event risk or similar
protection.
6
<PAGE> 9
GUARANTEES
The Company will unconditionally and irrevocably guarantee, on a senior or
subordinated basis, the due and punctual payment of principal of, premium, if
any, and interest on any Debt Securities that are issued by the Operating
Partnership, and the due and punctual payment of any sinking fund payments
thereon, when and as the same shall become due and payable, whether at a
maturity date, by declaration of acceleration, call for redemption or
otherwise. See "--Subordination."
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof.
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of
Debt Securities will be payable at the corporate trust office of the Trustee,
the address of which will be stated in the applicable Prospectus Supplement;
provided that, at the option of the Operating Partnership, payment of interest
may be made by check mailed to the address of the person entitled thereto as it
appears in the applicable register for such Debt Securities or by wire transfer
of funds to such person at an account maintained within the United States.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee
referred to above. In addition, subject to certain limitations imposed upon
Debt Securities issued in book-entry form, the Debt Securities of any series
may be surrendered for conversion or registration of transfer or exchange
thereof at the corporate trust office of the applicable Trustee. Every Debt
Security surrendered for conversion, registration of transfer or exchange must
be duly endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or exchange of any
Debt Securities, but the Operating Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. If the applicable Prospectus Supplement refers to any transfer
agent (in addition to the applicable Trustee) initially designated by the
Operating Partnership with respect to any series of Debt Securities, the
Operating Partnership may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that the Operating Partnership will be required to
maintain a transfer agent in each place of payment for such series. The
Operating Partnership may at any time designate additional transfer agents with
respect to any series of Debt Securities.
Neither the Operating Partnership nor any Trustee shall be required to (i)
issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before any
selection of Debt Securities of that series to be redeemed and ending at the
close of business on the day of mailing of the relevant notice of redemption;
(ii) register the transfer of or exchange any Debt Security, or portion
thereof, called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part; or (iii) issue, register the transfer of or
exchange any Debt Security that has been surrendered for repayment at the
option of the holder, except the portion, if any, of such Debt Security not to
be so repaid.
MERGER, CONSOLIDATION OR SALE
The Operating Partnership will be permitted to consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge with or
into, any other entity provided that (a) either the Operating Partnership shall
be the continuing entity, or the successor entity (if other than the Operating
Partnership) formed by or resulting from any such consolidation or merger or
which shall have received the transfer of such assets shall expressly assume
payment of the principal of (and premium, if any) and interest on all of the
Debt Securities and the due and punctual performance and observance of all of
the covenants and conditions contained in each Indenture; (b) immediately after
giving effect
7
<PAGE> 10
to such transaction and treating any indebtedness that becomes an obligation of
the Operating Partnership or any subsidiary as a result thereof as having been
incurred by the Operating Partnership or such subsidiary at the time of such
transaction, no event of default under the Indentures, and no event which,
after notice or the lapse of time, or both, would become such an event of
default, shall have occurred and be continuing; and (c) an officers'
certificate and legal opinion covering such conditions shall be delivered to
each Trustee.
CERTAIN COVENANTS
Existence. Except as permitted under "--Merger, Consolidation or Sale,"
the Operating Partnership will be required to do or cause to be done all things
necessary to preserve and keep in full force and effect its partnership
existence, rights (by agreement and statutory) and franchises; provided,
however, that the Operating Partnership shall not be required to preserve any
right or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business.
Maintenance of Properties. The Operating Partnership will be required to
cause all of its material properties used or useful in the conduct of its
business or the business of any subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Operating
Partnership may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times.
Insurance. The Operating Partnership will be required to, and will be
required to cause each of its subsidiaries to, keep all of its insurable
properties insured against loss or damage at least equal to their then full
insurable value with insurers of recognized responsibility and, if described in
the applicable Prospectus Supplement, having a specified rating from a
recognized insurance rating service.
Payment of Taxes and Other Claims. The Operating Partnership will be
required to pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (i) all taxes, assessments and governmental charges
levied or imposed upon it or any subsidiary or upon the income, profits or
property of the Operating Partnership or any subsidiary, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become
a lien upon the property of the Operating Partnership or any subsidiary;
provided, however, that the Operating Partnership shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith.
Provision of Financial Information. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act, the Operating Partnership will be
required within 15 days of each of the respective dates by which the Company
would have been required to file annual reports, quarterly reports and other
documents with the Commission if the Company were so subject to (i) transmit by
mail to all holders of Debt Securities, as their names and addresses appear in
the applicable register for such Debt Securities, without cost to such holders,
copies of the annual reports, quarterly reports and other documents that the
Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
sections, (ii) file with the applicable Trustee copies of the annual reports,
quarterly reports and other documents that the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (iii) promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective holder.
Additional Covenants. Any additional covenants of the Operating
Partnership with respect to any series of Debt Securities will be set forth in
the Prospectus Supplement relating thereto.
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EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (a)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (b) default in the payment of principal of (or
premium, if any, on) any Debt Security of such series at its maturity; (c)
default in making any sinking fund payment as required for any Debt Security of
such series; (d) default in the performance or breach of any other covenant or
warranty of the Operating Partnership contained in the Indenture (other than a
covenant added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the applicable Indenture; (e) a default
under any bond, debenture, note or other evidence of indebtedness for money
borrowed by the Operating Partnership (including obligations under leases
required to be capitalized on the balance sheet of the lessee under generally
accepted accounting principles but not including any indebtedness or
obligations for which recourse is limited to property purchased) in an
aggregate principal amount in excess of $5,000,000 or under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed by the Operating
Partnership (including such leases, but not including such indebtedness or
obligations for which recourse is limited to property purchased) in an
aggregate principal amount in excess of $5,000,000 by the Operating
Partnership, whether such indebtedness now exists or shall hereafter be created
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable or such obligations being accelerated, without such
acceleration having been rescinded or annulled; (f) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Operating Partnership or any Significant
Subsidiary of the Operating Partnership; and (g) any other event of default
provided with respect to a particular series of Debt Securities. The term
"Significant Subsidiary" means each significant subsidiary (as defined in
Regulation S-X promulgated under the Securities Act) of the Operating
Partnership.
If an event of default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of that series will have
the right to declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities or indexed securities, such
portion of the principal amount as may be specified in the terms thereof) of
all the Debt Securities of that series to be due and payable immediately by
written notice thereof to the Company (and to the applicable Trustee if given
by the holders). However, at any time after such a declaration of acceleration
with respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before
a judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the holders of not less than a majority in principal amount
of outstanding Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) the Company shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of such series (or of
all Debt Securities then outstanding under the applicable Indenture, as the
case may be), plus certain fees, expenses, disbursements and advances of the
applicable Trustee and (b) all events of default, other than the non-payment of
accelerated principal (or specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be) have been cured or waived as provided
in such Indenture. Any Indenture will also provide that the holders of not
less than a majority in principal amount of the outstanding Debt Securities of
any series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or (y) in respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended without the consent of the holder
of each outstanding Debt Security affected thereby.
Each Trustee will be required to give notice to the holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default shall have been cured or waived; provided, however, that such
Trustee may withhold notice to the holders of any series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or in
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the payment of any sinking fund installment in respect of any Debt Security of
such series) if specified responsible officers of such Trustee consider such
withholding to be in the interest of such holders.
Each Indenture will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the cases of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an event of default from the
holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of
Debt Securities from instituting suit for the enforcement of payment of the
principal of (and premium, if any) and interest on such Debt Securities at the
respective due dates thereof.
Subject to provisions in each Indenture relating to its duties in case of
default, no Trustee will be under any obligation to exercise any of its rights
or powers under an Indenture at the request or direction of any holders of any
series of Debt Securities then outstanding under such Indenture, unless such
holders shall have offered to the Trustee thereunder reasonable security or
indemnity. The holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under an Indenture, as the case may be) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the applicable Trustee, or of exercising any trust or power
conferred upon such Trustee. However, a Trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve such Trustee in personal liability or which may be unduly
prejudicial to the holders of Debt Securities of such series not joining
therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership will be required to deliver to each Trustee a certificate, signed
by one of several specified officers of the Company as general partner of the
Operating Partnership, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof.
MODIFICATION OF THE INDENTURES
Modifications and amendments of an Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding Debt Securities issued under such Indenture which are
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the holder of each such
Debt Security affected thereby, (a) change the stated maturity of the principal
of, or any installment of interest (or premium, if any) on, any such Debt
Security; (b) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security that would be
due and payable upon declaration of acceleration of the maturity thereof or
would be provable in bankruptcy, or adversely affect any right of repayment of
the holder of any such Debt Security; (c) change the place of payment, or the
coin or currency, for payment of principal of, premium, if any, or interest on
any such Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities of any series
necessary to modify or amend the applicable Indenture, to waive compliance with
certain provisions thereof or certain defaults and consequences thereunder or
to reduce the quorum or voting requirements set forth in the applicable
Indenture; or (f) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the holder of such Debt Security.
The holders of not less than a majority in principal amount of outstanding
Debt Securities issued under an Indenture will have the right to waive
compliance by the Operating Partnership with certain covenants in such
Indenture.
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Modifications and amendments of an Indenture will be permitted to be made
by the Operating Partnership and the respective Trustee thereunder without the
consent of any holder of Debt Securities for any of the following purposes:
(i) to evidence the succession of another person to the Operating Partnership
as obligor under such Indenture; (ii) to add to the covenants of the Operating
Partnership for the benefit of the holders of all or any series of Debt
Securities or to surrender any right or power conferred upon the Operating
Partnership in such Indenture; (iii) to add events of default for the benefit
of the holders of all or any series of Debt Securities; (iv) to add or change
any provisions of an Indenture to facilitate the issuance of, or to liberalize
certain terms of, Debt Securities in bearer form, or to permit or facilitate
the issuance of Debt Securities in uncertificated form, provided that such
action shall not adversely affect the interests of the holders of the Debt
Securities of any series in any material aspect; (v) to change or eliminate any
provisions of an Indenture, provided that any such change of elimination shall
become effective only when there are no Debt Securities outstanding of any
series created prior thereto which are entitled to the benefit of such
provision; (vi) to secure the Debt Securities; (vii) to establish the form or
terms of Debt Securities of any series, including the provisions and
procedures, if applicable, for the conversion of such Debt Securities into
Common Stock or Preferred Stock of the Company; (viii) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under an Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in an Indenture, provided that
such action shall not adversely affect the interests of holders of Debt
Securities of any series issued under such Indenture; or (x) to supplement any
of the provisions of an Indenture to the extent necessary to permit or
facilitate defeasance and discharge of any series of such Debt Securities,
provided that such action shall not adversely affect the interests of the
holders of the Debt Securities of any series.
Each Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have
given any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of any Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an indexed security that shall be deemed outstanding shall
be the principal face amount of such indexed security at original issuance,
unless otherwise provided with respect to such indexed security pursuant such
Indenture, and (iv) Debt Securities owned by the Operating Partnership or any
other obligor upon the Debt Securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded.
Each Indenture will contain provisions for convening meetings of the
holders of Debt Securities of a series. A meeting will be permitted to be
called at any time by the applicable Trustee, and also, upon request, by the
Operating Partnership or the holders of at least 10% in principal amount of the
outstanding Debt Securities of such series, in any such case upon notice given
as provided in the Indenture. Except for any consent that must be given by the
holder of each Debt Security affected by certain modifications and amendments
of an Indenture, any resolution presented at a meeting or adjourned meeting
duly reconvened at which a quorum is present may be adopted by the affirmative
vote of the holders of a majority in principal amount of the outstanding Debt
Securities of that series; provided, however, that, except as referred to
above, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the holders of a specified percentage, which is less than a majority,
in principal amount of the outstanding Debt Securities of a series may be
adopted at a meeting or adjourned meeting or adjourned meeting duly reconvened
at which a quorum is present by the affirmative vote of the holders of such
specified percentage in principal amount of the outstanding Debt Securities of
that series. Any resolution passed or decision taken at any meeting of holders
of Debt Securities of any series duly held in accordance with an Indenture will
be binding on all holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the
outstanding Debt Securities of a series; provided, however, that if any action
is to be taken at such
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meeting with respect to a consent or waiver which may be given by the holders
of not less than a specified percentage in principal amount of the outstanding
Debt Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such
series will constitute a quorum.
Notwithstanding the foregoing provisions, any Indenture will provide that
if any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver and other action that such Indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders
of such series and one or more additional series: (i) there shall be no
minimum quorum requirement for such meeting, and (ii) the principal amount of
the outstanding Debt Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under such Indenture.
SUBORDINATION
Upon any distribution to creditors of the Operating Partnership in a
liquidation, dissolution or reorganization, the payment of the principal of and
interest on any Subordinated Securities will be subordinated to the extent
provided in the applicable Indenture in right of payment to the prior payment
in full of all Senior Debt (as defined below), but the obligation of the
Operating Partnership to make payment of the principal and interest on such
Subordinated Securities will not otherwise be affected. No payment of
principal or interest will be permitted to be made on Subordinated Securities
at any time if a default on Senior Debt exists that permits the holders of such
Senior Debt to accelerate its maturity and the default is the subject of
judicial proceedings or the Operating Partnership receives notice of the
default. After all Senior Debt is paid in full and until the Subordinated
Securities are paid in full, holders will be subrogated to the rights of
holders of Senior Debt to the extent that distributions otherwise payable to
holders have been applied to the payment of Senior Debt. By reason of such
subordination, in the event of a distribution of assets upon insolvency,
certain general creditors of the Operating Partnership may recover more,
ratably, than holders of Subordinated Securities.
Senior Debt will be defined in the applicable Indenture as the principal of
and interest on, or substantially similar payments to be made by the Operating
Partnership in respect of, the following, whether outstanding at the date of
execution of the applicable Indenture or thereafter incurred, created or
assumed: (a) indebtedness of the Operating Partnership for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Operating
Partnership evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency agreement or other
agreement, (c) obligations of the Operating Partnership as lessee under leases
of property either made as part of any sale and leaseback transaction to which
the Operating Partnership is a party or otherwise, (d) indebtedness of
partnerships and joint ventures which is included in the consolidated financial
statements of the Operating Partnership, (e) indebtedness, obligations and
liabilities of others in respect of which the Operating Partnership is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Operating Partnership has agreed to purchase
or otherwise acquire, and (f) any binding commitment of the Operating
Partnership to fund any real estate investment or to fund any investment in any
entity making such real estate investment, in each case other than (1) any such
indebtedness, obligation or liability referred to in clauses (a) through (f)
above as to which, in the instrument creating or evidencing the same pursuant
to which the same is outstanding, it is provided that such indebtedness,
obligation or liability is not superior in right of payment to the Subordinated
Securities or ranks pari passu with the Subordinated Securities, (2) any such
indebtedness, obligation or liability which is subordinated to indebtedness of
the Operating Partnership to substantially the same extent as or to a greater
extent than the Subordinated Securities are subordinated, and (3) the
Subordinated Securities. There will not be any restrictions in an Indenture
relating to Subordinated Securities upon the creation of additional Senior
Debt.
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If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Debt outstanding as of the end of the Operating Partnership's
most recent fiscal quarter.
In the event that Subordinated Securities are issued by the Operating
Partnership, the related Guarantees issued by the Company will be subordinate
and junior in right of payment to Senior Debt of the Company on substantially
the same terms and conditions as the obligations of the Operating Partnership
under the Subordinated Securities will be subordinate and junior in right of
payment of Senior Debt.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Operating Partnership may be permitted under the applicable Indenture
to discharge certain obligations to holders of any series of Debt Securities
issued thereunder that have not already been delivered to the applicable
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by irrevocably depositing with the applicable Trustee, in trust, funds in
such currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal
(and premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
An Indenture may provide that, if certain provisions thereof are made
applicable to the Debt Securities of or within any series pursuant to such
Indenture, the Operating Partnership may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities, to maintain an office or
agency in respect of such Debt Securities and to hold moneys for payment in
trust) ("defeasance") or (b) to be released from its obligations with respect
to such Debt Securities under an Indenture (being the restrictions described
under "--Certain Covenants") or, if provided pursuant to an Indenture, its
obligations with respect to any other covenant, and any omission to comply with
such obligations shall not constitute an event of default with respect to such
Debt Securities ("covenant defeasance"), in either case upon the irrevocable
deposit by the Operating Partnership with the applicable Trustee, in trust, of
an amount, in such currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable at stated
maturity, or Government Obligations (as defined below), or both, applicable to
such Debt Securities which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Debt Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership has delivered to the applicable Trustee an
opinion of counsel (as specified in the applicable Indenture) to the effect
that the holders of such Debt Securities will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance or covenant defeasance had not occurred, and such opinion of
counsel, in the case of defeasance, will be required to refer to and be based
upon a ruling of the Internal Revenue Service or a change in applicable United
States federal income tax law occurring after the date of the Indenture.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case,
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are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount receiving by the custodian in respect of the Government Obligation
or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Operating Partnership has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the applicable Indenture or the terms of such Debt
Security to receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of such Debt
Security, or (b) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit has been
made, the indebtedness represented by such Debt Security will be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest on such Debt Security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into the currency, currency unit or composite
currency in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable market exchange
rate. "Conversion Event" means the cessation of use of (i) a currency,
currency unit or composite currency both by the government of the country which
issued such currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that is payable in a foreign currency
that ceases to be used by its government of issuance shall be made in U.S.
dollars.
In the event the Operating Partnership effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any event of default other than the event
of default described in clause (d) under "Events of Default, Notice and Waiver"
with respect to specified sections of an Indenture (which sections would no
longer be applicable to such Debt Securities) or described in clause (g) under
"Events of Default, Notice and Waiver" with respect to any other covenant as to
which there has been covenant defeasance, the amount in such currency, currency
unit or composite currency in which such Debt Securities are payable, and
Government Obligations on deposit with the applicable Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time of their
stated maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the acceleration resulting from such event of
default. However, the Operating Partnership would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Stock or Preferred Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into shares of Common Stock or
Preferred Stock, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders or the Operating Partnership, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of the
redemption of such Debt Securities and any restrictions on conversion.
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GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary identified in the applicable
Prospectus Supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the applicable Prospectus Supplement
relating to such series.
DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 5,000,000 shares of preferred stock,
$.01 par value per share, of which no Preferred Stock was outstanding at June
30, 1994.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation") and Bylaws and any applicable
amendment to the Articles of Incorporation designating terms of a series of
Preferred Stock (a "Designating Amendment").
TERMS
Subject to the limitations prescribed by the Articles of Incorporation, the
board of directors is authorized to fix the number of shares constituting each
series of Preferred Stock and the designations and powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof, including such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the board of directors. The Preferred
Stock will, when issued, be fully paid and nonassessable by the Company (except
as described under "--Shareholder Liability" below) and will have no preemptive
rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred Stock;
(7) The provision for redemption, if applicable, of such Preferred Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
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(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company, including
the conversion price (or manner of calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(11) A discussion of federal income tax considerations applicable to such
Preferred Stock;
(12) The relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
(13) Any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company; and
(14) Any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status
of the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock; (ii) on a parity with all equity securities
issued by the Company the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock; and (iii) junior to all
equity securities issued by the Company the terms of which specifically provide
that such equity securities rank senior to the Preferred Stock. The term
"equity securities" does not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the board of directors of the Company, out of
assets of the Company legally available for payment, cash dividends at such
rates and on such dates as will be set forth in the applicable Prospectus
Supplement. Each such dividend shall be payable to holders of record as they
appear on the share transfer books of the Company on such record dates as shall
be fixed by the board of directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement.
Dividends, if cumulative, will be cumulative from and after the date set forth
in the applicable Prospectus Supplement. If the board of directors of the
Company fails to declare a dividend payable on a dividend payment date on any
series of the Preferred Stock for which dividends are non-cumulative, then the
holders of such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Company will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared payable on
any future dividend payment date.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company
of any other series ranking, as to dividends, on a parity with or junior to the
Preferred Stock of such series for any period unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series for all past dividend periods and the then current dividend period or
(ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon Preferred Stock of
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<PAGE> 19
any series and the shares of any other series of Preferred Stock ranking on a
parity as to dividends with the Preferred Stock of such series, all dividends
declared upon Preferred Stock of such series and any other series of Preferred
Stock ranking on a parity as to dividends with such Preferred Stock shall be
declared pro rata so that the amount of dividends declared per share of
Preferred Stock of such series and such other series of Preferred Stock shall
in all cases bear to each other the same ratio that accrued dividends per share
on the Preferred Stock of such series (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such Preferred
Stock does not have a cumulative dividend) and such other series of Preferred
Stock bear to each other. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on Preferred
Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the then current
dividend period, no dividends (other than in shares of Common Stock or other
capital shares ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment or other distribution shall be declared or made upon the Common Stock,
or any other capital shares of the Company ranking junior to or on a parity
with the Preferred Stock of such series as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other capital shares of the
Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available for
a sinking fund for the redemption of any such shares) by the Company (except by
conversion into or exchange for other capital shares of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation).
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of the
Company, as a whole or in part, in each case upon the terms, at the times and
at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon
(which shall not, if such Preferred Stock does not have a cumulative dividend,
include any accumulation in respect of unpaid dividends for prior dividend
periods) to the date of redemption. The redemption price may be payable in
cash or other property, as specified in the applicable Prospectus Supplement.
If the redemption price for Preferred Stock of any series is payable only from
the net proceeds of the issuance of capital shares of the Company, the terms of
such Preferred Stock may provide that, if no such capital shares shall have
been issued or to the extent the net proceeds from any issuance are
insufficient to pay in full the aggregate redemption price then due, such
Preferred Stock shall automatically and mandatorily be converted into the
applicable capital shares of the Company pursuant to conversion provisions
specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred Stock
has a cumulative dividend, full cumulative dividends on all shares of any
series of Preferred Stock shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend period, and
(ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends of the Preferred Stock of any series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period,
no shares of any series of Preferred Stock shall be redeemed unless all
outstanding Preferred Stock of such series is simultaneously
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<PAGE> 20
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of Preferred Stock of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Stock of such series. In addition,
unless (i) if such series of Preferred Stock has a cumulative dividend, full
cumulative dividends on all outstanding shares of any series of Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividends
periods and the then current dividend period, and (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends on the
Preferred Stock of any series have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, the Company shall not purchase or
otherwise acquire directly or indirectly any shares of Preferred Stock of such
series (except by conversion into or exchange for capital shares of the Company
ranking junior to the Preferred Stock of such series as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of Preferred Stock of such series to preserve the REIT
status of the Company or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held or for which redemption is requested by such holder (with adjustments to
avoid redemption of fractional shares) or by lot in a manner determined by the
Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the share transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Stock are to be surrendered for payment of the redemption price; (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
if any, as to such shares shall terminate. If fewer than all the shares of
Preferred Stock of any series are to be redeemed, the notice mailed to each
such holder thereof shall also specify the number of shares of Preferred Stock
to be redeemed from each such holder. If notice of redemption of any Preferred
Stock has been given and if the funds necessary for such redemption have been
set aside by the Company in trust for the benefit of the holders of any
Preferred Stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such Preferred Stock, and all rights of
the holders of such shares will terminate, except the right to receive the
redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Stock or any other class or series of
capital shares of the Company ranking junior to the Preferred Stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of each series of Preferred Stock shall be entitled to
receive out of assets of the Company legally available for distribution to
shareholders liquidating distributions in the amount of the liquidation
preference per share (set forth in the applicable Prospectus Supplement), plus
an amount equal to all dividends accrued and unpaid thereon (which shall not
include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend). After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no right or claim to any of
the remaining assets of the Company. In the event that, upon any such
voluntary or involuntary liquidation, dissolution or winding up, the available
assets of the Company are insufficient to pay the amount of the liquidating
distributions on all outstanding Preferred Stock and the corresponding amounts
payable on all shares of other classes or series of capital shares of the
Company ranking on a parity with the Preferred Stock in the distribution of
assets, then the holders of the Preferred Stock and all other such classes or
series of capital shares shall share ratably in any such distribution of assets
in proportion to the full liquidating distributions to which they would
otherwise be respectively entitled.
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<PAGE> 21
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital shares ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, trust or entity, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any shares of Preferred Stock shall be in arrears for
six or more consecutive quarterly periods, the holders of such shares of
Preferred Stock (voting separately as a class with all other series of
preferred stock upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two additional
directors of the Company at a special meeting called by the holders of record
of at least ten percent (10%) of any series of Preferred stock so in arrears
(unless such request is received less than 90 days before the date fixed for
the next annual or special meeting of the stockholders) or at the next annual
meeting of stockholders, and at each subsequent annual meeting until (i) if
such series of Preferred Stock has a cumulative dividend, all dividends
accumulated on such shares of Preferred Stock for the past dividend periods and
the then current dividend period shall have been fully paid or declared and a
sum sufficient for the payment thereof set aside for payment or (ii) if such
series of Preferred Stock does not have a cumulative dividend, four consecutive
quarterly dividends shall have been fully paid or declared and a sum sufficient
for the payment thereof set aside for payment. In such case, the entire board
of directors of the Company will be increased by two directors.
Unless provided otherwise for any series of Preferred Stock, so long as any
shares of Preferred Stock remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of each series of Preferred Stock outstanding at the time, given in person or
by proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount
of, any class or series of capital stock ranking prior to such series of
Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify any authorized
capital stock of the Company into such shares, or create, authorize or issue
any obligation or security convertible into or evidencing the right to purchase
any such shares; or (ii) amend, alter or repeal the provisions of the Company's
Articles of Incorporation or the Designating Amendment for such series of
Preferred Stock, whether by merger, consolidation or otherwise (an "Event"), so
as to materially and adversely affect any right, preference, privilege or
voting power of such series of Preferred Stock or the holders thereof;
provided, however, with respect to the occurrence of any of the Events set
forth in (ii) above, so long as the Preferred Stock remains outstanding with
the terms thereof materially unchanged, taking into account that upon the
occurrence of an Event, the Company may not be the surviving entity, the
occurrence of any such Event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting power of holders of
Preferred Stock and provided further that (x) any increase in the amount of the
authorized Preferred Stock or the creation or issuance of any other series of
Preferred Stock, or (y) any increase in the amount of authorized shares of
such series or any other series of Preferred Stock, in each case ranking on a
parity with or junior to the Preferred Stock of such series with respect to
payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
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<PAGE> 22
Under Indiana law, notwithstanding anything to the contrary set forth
above, holders of each series of Preferred Stock will be entitled to vote as a
class upon any proposed amendment to the Articles of Incorporation, whether or
not entitled to vote thereon by the Articles of Incorporation, if the amendment
would (i) increase or decrease the aggregate number of authorized shares of
such series; (ii) effect an exchange or reclassification of all or part of the
shares of the series into shares of another series; (iii) effect an exchange or
reclassification, or create the right of exchange, of all or part of the shares
of another class or series into shares of the series; (iv) change the
designation, rights, preferences or limitations of all or a part of the shares
of the series; (v) change the shares of all or part of the series into a
different number of shares of the same series; (vi) create a new series having
rights or preferences with respect to distributions or dissolution that are
prior, superior or substantially equal to the shares of the series; (vii)
increase the rights, preferences or number of authorized shares of any class or
series that, after giving effect to the amendment, have rights or preferences
with respect to distributions or to dissolution that are prior, superior or
substantially equal to the shares of the series; (viii) limit or deny an
existing preemptive right of all or part of the shares of the series; or (ix)
cancel or otherwise affect rights to distributions or dividends that have
accumulated but have not yet been declared on all or part of the shares of the
series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into shares of Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Common Stock into which the shares of Preferred Stock are
convertible, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders of the Preferred Stock or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of Preferred Stock.
SHAREHOLDER LIABILITY
As discussed below under "Description of Common Stock--General," applicable
Indiana law provides that no shareholder, including holders of Preferred
Stock, shall be personally liable for the acts and obligations of the Company
and that the funds and property of the Company shall be the only recourse for
such acts or obligations.
RESTRICTIONS ON OWNERSHIP
As discussed below under "Description of Common Stock--Certain Provisions
Affecting Change of Control," for the Company to qualify as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"), not more than 50% in
value of its outstanding capital shares may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. To assist the Company in
meeting this requirement, the Company may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Company's outstanding equity securities, including any Preferred Stock of the
Company. Therefore, the Designating Amendment for each series of Preferred
Stock may contain provisions restricting the ownership and transfer of the
Preferred Stock. The applicable Prospectus Supplement will specify any
additional ownership limitation relating to a series of Preferred Stock.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
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DESCRIPTION OF COMMON STOCK
GENERAL
The authorized capital stock of the Company includes 45,000,000 shares of
Common Stock, $.01 par value per share. Each outstanding share of Common Stock
entitles the holder to one vote on all matters presented to shareholders for a
vote. Holders of Common Stock have no preemptive rights. At June 30, 1994,
there were 16,046,144 shares of Common Stock outstanding.
Shares of Common Stock currently outstanding are listed for trading on the
New York Stock Exchange (the "NYSE"). The Company will apply to the NYSE to
list the additional shares of Common Stock to be sold pursuant to any
Prospectus Supplement, and the Company anticipates that such shares will be so
listed.
The Articles of Incorporation of the Company provide for the board of
directors to be divided into three classes of directors, each class to consist
as nearly as possible of one-third of the directors. At each annual meeting of
shareholders, the class of directors to be elected at such meeting will be
elected for a three-year term and the directors in the other two classes will
continue in office. The overall effect of the provisions in the Articles of
Incorporation with respect to the classified board may be to render more
difficult a change of control of the Company or removal of incumbent
management. Holders of Common Stock have no right to cumulative voting for the
election of directors. Consequently, at each annual meeting of shareholders,
the holders of a plurality of the shares of Common Stock are able to elect all
of the successors of the class of directors whose term expires at that meeting.
Directors may be removed only for cause and only with the affirmative vote of
the holders of a majority of the shares of Common Stock entitled to vote in the
election of directors.
All shares of Common Stock issued will be duly authorized, fully paid, and
non-assessable. Distributions may be paid to the holders of Common Stock if
and when declared by the board of directors of the Company out of funds legally
available therefor. The Company intends to continue to pay quarterly
dividends.
Under Indiana law, shareholders are generally not liable for the Company's
debts or obligations. If the Company is liquidated, subject to the right of
any holders of preferred stock, if any, to receive preferential distributions,
each outstanding share of Common Stock will be entitled to participate pro rata
in the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company.
CERTAIN PROVISIONS AFFECTING CHANGE OF CONTROL
General. Pursuant to Indiana law, the Company cannot merge with or sell
all or substantially all of the assets of the Company, except pursuant to a
resolution approved by shareholders holding a majority of the shares voting on
the resolution. The Company's Articles of Incorporation also contain
provisions which may discourage certain types of transactions involving an
actual or threatened change of control of the Company, including: (i) a
requirement that, in the case of certain mergers, sales of assets, liquidations
or dissolutions, or reclassifications or recapitalizations involving persons
owning 10% or more of the capital stock of the Company, such transactions be
approved by a vote of the holders of 80% of the issued and outstanding shares of
capital stock of the Company or three-fourths of the continuing directors, or
provide for payment of a price to affected shareholders for their shares not
less than as specified in the Articles of Incorporation; (ii) a requirement
that any amendment or alteration of certain provisions of the Articles of
Incorporation affecting change of control be approved by the holders of 80% of
the issued and outstanding capital stock of the Company; and (iii) a staggered
board of directors and a limitation on removal of directors to removal for
cause as described above.
The partnership agreement for the Operating Partnership also contains
provisions which could discourage transactions involving an actual or
threatened change of control of the Company, including (i) a requirement that
holders of at least 90% of the outstanding Units held by the Company and other
Unit holders approve any voluntary
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sale, exchange or other disposition, including merger or consolidation (other
than a disposition occurring upon a financing or refinancing of the Operating
Partnership), of all or substantially all of the assets of the Operating
Partnership in a single transaction or a series of related transactions; (ii) a
restriction against any assignment or transfer by the Company of its interest
in the Operating Partnership; and (iii) a requirement that holders of more than
90% of the Units approve any merger, consolidation or other combination of the
Company with or into another entity, or sale of all or substantially all of the
Company's assets, or any reclassification or recapitalization or change of
outstanding shares of Common Stock (other than certain changes in par value,
stock splits, stock dividends or combinations) unless after the transaction
substantially all of the assets of the surviving entity are contributed to the
Operating Partnership in exchange for Units. On these matters, the Company's
Units will be voted at the discretion of the directors of the Company who are
not officers or employees of the Company and do not hold Units.
Ownership Limits. For the Company to qualify as a REIT under the Code, no
more than 50% in value of its outstanding capital shares may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year or during a
proportionate part of a shorter taxable year. The Common Stock must also be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year or during a proportionate part of a shorter taxable year. Because the
Company expects to continue to qualify as a REIT, the Articles of Incorporation
of the Company contain restrictions on the acquisition of Common Stock intended
to ensure compliance with these requirements.
The Articles of Incorporation contain a restriction which authorizes, but
does not require, the board of directors to refuse to give effect to a transfer
of Common Stock which, in its opinion, might jeopardize the status of the
Company as a REIT. This provision also renders null and void any purported
acquisition of shares which would result in the disqualification of the Company
as a REIT. The provision also gives the board of directors the authority to
take such actions as it deems advisable to enforce the provision. Such actions
might include, but are not limited to, refusing to give effect to, or seeking
to enjoin, a transfer which might jeopardize the Company's status as a REIT.
The provision also requires any shareholder to provide the Company such
information regarding his direct and indirect ownership of Common Stock as the
Company may reasonably require.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Common Stock is Bank One,
Indianapolis, N.A., Indianapolis, Indiana.
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell Securities in or through
underwriters, and also may sell Securities directly to other purchasers or
through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Common Stock may also be
issued to certain holders of Units in exchange for their Units pursuant to the
partnership agreement of the Operating Partnership.
In connection with the sale of Securities, underwriters may receive
compensation from the Company, from the Operating Partnership or from
purchasers of Securities, for whom they may act as agents, in the form of
discounts, concessions, or commissions. Underwriters may sell Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions, or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agents. Underwriters, dealers,
and agents that participate in the distribution of Securities may be deemed to
be underwriters, and any discounts or commissions they receive from the
Company, and any profit on the resale of Securities they realize may be deemed
to be underwriting discounts and commissions,
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<PAGE> 25
under the Securities Act. Any such underwriter or agent will be identified,
and any such compensation received from the Company or the Operating
Partnership will be described, in the Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Stock which is listed on the NYSE. Any shares of Common
Stock sold pursuant to a Prospectus Supplement will be listed on such exchange,
subject to official notice of issuance. The Company or the Operating
Partnership may elect to list any series of Debt Securities or Preferred Shares
on an exchange, but neither is obligated to do so. It is possible that one or
more underwriters may make a market in a series of Securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. Therefore, no assurance can be given as to the liquidity of the
trading market for the Securities.
Under agreements the Company and the Operating Partnership may enter into,
underwriters, dealers, and agents who participate in the distribution of
Securities may be entitled to indemnification by the Company or the Operating
Partnership, as the case may be, against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company or the Operating
Partnership in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company or the
Operating Partnership, as the case may be, will authorize underwriters or other
persons acting as the Company's or the Operating Partnership's agents to
solicit offers by certain institutions to purchase Securities from the Company
or the Operating Partnership pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be made
include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and others, but
in all cases such institutions must be approved by the Company or the Operating
Partnership, as the case may be. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of the
Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
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LEGAL OPINIONS
The legality of the Securities offered hereby is being passed upon for the
Company and the Operating Partnership by Bose McKinney & Evans, Indianapolis,
Indiana. John W. Wynne and Darell E. Zink, Jr., officers and directors of the
Company, were partners in Bose McKinney & Evans through 1987 and 1982,
respectively, and were of counsel to that firm until December, 1990. The
spouses of Michael Coletta and Dayle M. Eby, both officers and shareholders of
the Company, are partners in Bose McKinney & Evans. Rogers & Wells, New York,
New York will act as counsel to any underwriters, dealers or agents.
EXPERTS
The Consolidated Financial Statements and Schedules of the Company as of
December 31, 1993, and 1992, and for each of the years in the three year period
ended December 31, 1993, incorporated herein by reference have been
incorporated herein in reliance on the reports of KPMG Peat Marwick,
independent certified public accountants, also incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fee . . . . . . . . . . . . . . . . . . . . . . $110,345
NASD Fee . . . . . . . . . . . . . . . . . . . . . . . . . 32,500
NYSE Listing Fee . . . . . . . . . . . . . . . . . . . . . . 21,000
Fees of Rating Agencies . . . . . . . . . . . . . . . . . . 50,000
Printing and Engraving Expenses . . . . . . . . . . . . . . 75,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . 150,000
Accounting Fees and Expenses . . . . . . . . . . . . . . . . 20,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . 20,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 46,155
------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . $525,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Indiana corporation. The Company's officers and
directors are and will be indemnified under Indiana law, the Articles of
Incorporation of the Company, and the partnership agreements of the Operating
Partnership and Duke Realty Services Limited Partnership against certain
liabilities. Chapter 37 of The Indiana Business Corporation Law (the "IBCL")
requires a corporation, unless its articles of incorporation provide otherwise,
to indemnify a director or an officer of the corporation who is wholly
successful, on the merits or otherwise, in the defense of any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative and whether formal or informal, against
reasonable expenses, including counsel fees, incurred in connection with the
proceeding. The Company's Articles of Incorporation do not contain any
provision prohibiting such indemnification.
The IBCL also permits a corporation to indemnify a director, officer,
employee or agent who is made a party to a proceeding because the person was a
director, officer, employee or agent of the corporation against liability
incurred in the proceeding if (i) the individual's conduct was in good faith
and (ii) the individual reasonably believed (A) in the case of conduct in the
individual's official capacity with the corporation that the conduct was in the
corporation's best interests and (B) in all other cases that the individual's
conduct was at least not opposed to the corporation's best interests and (iii)
in the case of a criminal proceeding, the individual either (A) had reasonable
cause to believe the individual's conduct was lawful or (B) had no reasonable
cause to believe the individual's conduct was unlawful. The IBCL also permits
a corporation to pay for or reimburse reasonable expenses incurred before the
final disposition of the proceeding and permits a court of competent
jurisdiction to order a corporation to indemnify a director or officer if the
court determines that the person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
person met the standards for indemnification otherwise provided in the IBCL.
The Company's Articles of Incorporation provide for certain additional
limitations of liability and indemnification. Section 13.01 of the Articles of
Incorporation provides that a director shall not be personally liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the director's duty
of loyalty to the Company or its shareholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for voting for or assenting to an unlawful distribution, or (iv) for
any transaction from which the director derived an improper personal benefit.
Section 13.02 of the Articles of Incorporation generally provides that any
director or officer of the Company or any person who is serving at the request
of the Company as a director, officer, employee or agent of another entity
shall be indemnified
II-1
<PAGE> 28
and held harmless by the Company to the fullest extent authorized by the IBCL
against all expense, liability and loss (including attorneys' fees, judgments,
fines, certain employee benefits, excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered in connection with a
civil, criminal, administrative or investigative action, suit or proceeding to
which such person is a party by reason of the person's service with or at the
request of the Company. Section 13.02 of the Articles of Incorporation also
provides such persons with certain rights to be paid by the Company the
expenses incurred in defending any such proceeding in advance of the final
disposition and the right to enforce indemnification claims against the Company
by bringing suit against the Company.
The Company's Articles of Incorporation authorize the Company to maintain
insurance to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the IBCL.
Each of the partnership agreements for the Operating Partnership and Duke
Realty Services Limited Partnership also provides for indemnification of the
Company and its officers and directors to substantially the same extent
provided to officers and directors of the Company in its Articles of
Incorporation, and limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners and to Duke Realty
Services Limited Partnership and its partners, respectively, to substantially
the same extent limited under the Company's Articles of Incorporation.
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
4.1 Amended and Restated Articles of Incorporation of Duke
Realty Investments, Inc., incorporated by reference from
Exhibit 3.3 to the Registration Statement on Form S-2 of
Duke Realty Investments, Inc., as amended, File No. 33-64038
(the "1993 Registration Statement").
4.2 Amended and Restated Bylaws of Duke Realty Investments,
Inc., incorporated by reference from Exhibit 3.4 to the 1993
Registration Statement.
5 Opinion and consent of Bose McKinney & Evans regarding
legality of the securities being registered.
12.1 Calculation of Ratios of Earnings to Fixed Charges.
23.1 Consent of KPMG Peat Marwick.
23.2 Consent of Bose McKinney & Evans (included in Exhibit 5).
24 Powers of Attorney (filed as part of the signature page to
the Registration Statement).
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities
II-2
<PAGE> 29
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The undersigned Registrants hereby further undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrants hereby further undertake that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
The undersigned Registrants further undertake that:
(a) For purposes of determining any liability under the
Securities Act of 1933, as amended (the "Act"), the information omitted from
the form of Prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in the form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4)
II-3
<PAGE> 30
or 497(h) under the Act shall be deemed to be part of the registration
statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on August 10, 1994.
Duke Realty Investments, Inc.
By: /s/ Thomas L. Hefner
-----------------------------
President and Chief Executive
Officer
Duke Realty Limited Partnership
By: Duke Realty Investments, Inc.
General Partner
By: /s/ Thomas L. Hefner
-----------------------------
President and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears below
hereby appoints John W. Wynne, Thomas L. Hefner and Darell E. Zink, and each of
them, as his attorneys-in-fact, with full of substitution and resubstitution,
to execute in the name and on behalf of such person, individually and in the
capacity stated below, and to file all amendments and post-effective amendments
to this Registration Statement, which amendment or amendments may make such
changes in and additions to this Registration Statement as such
attorneys-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John W. Wynne Director and Chairman of the August 10, 1994
- --------------------------- Board
John W. Wynne
/s/ Thomas L. Hefner Director and President and August 10, 1994
- --------------------------- Chief Executive Officer
Thomas L. Hefner (Principal Executive Officer)
/s/ Daniel C. Staton Director and Executive Vice August 10, 1994
- ---------------------------- President and Chief Operating
Daniel C. Staton Officer
(Principal Operating Officer)
</TABLE>
II-5
<PAGE> 32
<TABLE>
<S> <C> <C>
/s/ Darell E. Zink, Jr. Director and Executive Vice August 10, 1994
- ----------------------------- President, Chief Financial
Darell E. Zink, Jr. Officer and Assistant Secretary
(Principal Accounting
Officer)
/s/ Geoffrey Button Director August 10, 1994
--------------------------
Geoffrey Button
/s/ Howard L. Feinsand Director August 10, 1994
---------------------------
Howard L. Feinsand
John D. Peterson Director August 10, 1994
- ----------------------------
John D. Peterson
James E. Rogers Director August 10, 1994
- ---------------------------
James E. Rogers
Sydney C. Reagan Director August 10, 1994
- ----------------------------
Sydney C. Reagan
Director August 10, 1994
- ----------------------------
Lee Stanfield
Jay J. Strauss Director August 10, 1994
- ----------------------------
Jay J. Strauss
</TABLE>
II-6
<PAGE> 1
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
August 9, 1994
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Investments, Inc., an Indiana
corporation (the "Company"), and Duke Realty Limted Partnership, an Indiana
limited Partnership (the "Partnership"), in connection with the shelf
registration by the Company and the Partnership of $320,000,000 in maximum
aggregate offering price of (i) shares of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), (ii) shares of the Company's preferred
stock, par value $.01 per share ("Preferred Stock") and (iii) debt securities
of the Partnership ("Debt Securities") together with unconditional and
irrevocable guarantees thereof by the Company ("Guarantees"). The Common
Stock, Preferred Stock, Debt Securities and Guarantees are the subject of a
Registration Statement (the "Registration Statement") filed by the Company and
the Partnership on Form S-3 under the Securities Act of 1933, as amended.
We have examined photostatic copies of the Company's Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws and of the
Partnership's Amended and Restated Agreement of Limited Partnership, and such
other documents and instruments as we have deemed necessary to enable us to
render the opinion set forth below. We have assumed the conformity to the
originals of all documents submitted to us as photostatic copies, the
authenticity of the originals of such documents, and the genuineness of all
signatures appearing thereon.
Based upon and subject to the foregoing, it is our opinion that:
(1) The Common Stock has been duly authorized by all necessary corporate action
of the Company and when (a) the applicable provisions of the Securities Act of
<PAGE> 2
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
August 9, 1994
Page 2
1933 and such state "blue sky" or securities laws as may be applicable have
been complied with and (b) the shares of Common Stock have been issued,
delivered, and paid for, such shares of Common Stock will be legally issued,
fully paid, and nonassessable.
(2) The Preferred Stock has been duly authorized by all necessary corporate
action of the Company and when (a) the applicable provisions of the Securities
Act of 1933 and such state "blue sky" or securities laws as may be applicable
have been complied with, (b) the Company's board of directors has adopted and
the Company has duly filed with the Indiana Secretary of State an amendment to
its amended and restated articles of incorporation establishing the
preferences, limitations and relative voting and other rights of each series of
Preferred Stock prior to issuance thereof and (c) the shares of Preferred Stock
have been issued, delivered, and paid for, such shares of Preferred Stock will
be legally issued, fully paid, and nonassessable.
(3) The Debt Securities have been duly authorized by all necessary partnership
action of the Partnership and the Guarantees have been duly authorized by all
necessary corporate action of the Company and when (a) the applicable
provisions of the Securities Act of 1933 and such state "blue sky" or
securities laws as may be applicable have been complied with and (b) the Debt
Securities and Guarantees have been issued and delivered for value, such Debt
Securities and Guarantees will be legally issued and will be binding
obligations of the Partnership and the Company, respectively.
We do not hold ourselves out as being conversant with the laws of any
jurisdiction other than those of the United States and the State of Indiana
and, therefore, this opinion is limited to the laws of those jurisdictions.
<PAGE> 3
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
August 9, 1994
Page 3
We consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-3 filed under the Securities Act of 1933 relating to the
Common Stock, Preferred Stock, Debt Securities and Guarantees.
Very truly yours,
BOSE McKINNEY & EVANS
<PAGE> 1
Exhibit 12.1
Computation of Ratios of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Six Months
Ended
June 30, Year Ended December 31,
---------- ---------------------------------------------------------
1994 1993 1992 1991 1990 1989
---------- ---------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Consolidated net
income (loss) 11,420,000 5,013,000 (653,000) (1,607,000) (571,000) (302,000)
Gain on property
sales (135,000) (517,000) (66,000) (226,000) (1,143,000) (167,000)
DRLP minority interest 3,509,000 1,657,000 0 0 0 0
Interest expense 8,723,000 10,334,000 7,582,000 7,920,000 7,519,000 7,492,000
---------- ---------- --------- --------- --------- ---------
Earnings before
fixed charges 23,517,000 16,487,000 6,863,000 6,087,000 5,805,000 7,023,000
========== ========== ========= ========= ========= =========
Interest expense 8,723,000 10,334,000 7,582,000 7,920,000 7,519,000 7,492,000
Amortization of
deferred financing
costs 255,000 258,000 184,000 173,000 172,000 168,000
Interest costs
capitalized 593,000 0 0 0 0 0
---------- ---------- --------- --------- --------- ---------
Total fixed charges 9,571,000 10,592,000 7,766,000 8,093,000 7,691,000 7,660,000
========== ========== ========= ========= ========= =========
Ratio of earnings
to fixed charges 2.46 1.56 0.88 0.75 0.75 0.92
========== ========== ========= ========= ========= =========
</TABLE>
<PAGE> 1
Exhibit 23.1
The Board of Directors
Duke Realty Investments, Inc.:
We consent to the use of our reports on the consolidated financial statements
of Duke Realty Investments, Inc. and subsidiaries and the related financial
statement schedules as of December 31, 1993 and 1992 and each of the years in
the three years ended December 31, 1993, incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick
Indianapolis, Indiana
August 5, 1994
