<PAGE>
As filed with the Securities Exchange Commission on September 23, 1994
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): September 21, 1994
DUKE REALTY INVESTMENTS, INC.
(Exact name of registrant as specified in its charter)
Indiana 1-9044 35-1740409
(State or jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
8888 KEYSTONE CROSSING, SUITE 1200
INDIANAPOLIS, INDIANA 46240
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317)574-3531
Not applicable
(Former name or former address, if changed since last report)
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibit
Number Exhibit
- - ------- -------
1 Terms Agreement and annexed Underwriting Agreement dated
September 21, 1994, which is being filed pursuant to Regulation S-K,
Item 601(b)(1) in lieu of filing the otherwise required exhibit to the
Registrant's registration statement on Form S-3, file no. 33-54997,
under the Securities Act of 1933, as amended, and which, as this
Form 8-K filing is incorporated by reference in such registration
statement, is set forth in full in such registration statement.
99 Tax opinion of Rogers & Wells, including consent, which is being filed
pursuant to Regulation S-K, Item 601(b)(8) in lieu of filing the
otherwise required exhibit to the Registrant's registration statement
on Form S-3, file no. 33-54997, under the Securities Act of 1933, as
amended, and which, as this Form 8-K filing is incorporated by
reference in such registration statement, is set forth in full in such
registration statement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DUKE REALTY INVESTMENTS, INC.
Date: September 23, 1994 By: /s/ Darell E. Zink, Jr.
-----------------------------
Darell E. Zink, Jr.
Executive Vice President
-2-
<PAGE>
EXHIBIT 1
DUKE REALTY INVESTMENTS, INC.
(an Indiana Corporation)
3,500,000 Common Shares
TERMS AGREEMENT
September 21, 1994
TO: Duke Realty Investments, Inc.
8888 Keystone Crossing Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representatives") understand that Duke Realty Investments,
Inc., an Indiana corporation (the "Company"), proposes to issue and sell
3,500,000 shares of common stock (the "Common Stock")(such Common Stock being
hereinafter referred to as the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, the underwriters
named below (the "Underwriters") offer to purchase, severally and not jointly,
the respective numbers of Initial Underwritten Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of Option Securities (as defined in
the Underwriting Agreement referred to below), to the extent any are purchased,
at the purchase price set forth below.
<PAGE>
<TABLE>
<CAPTION>
Number of Initial
Name of Underwriter Underwritten Securities
- - ------------------------------------------------------------------------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated 418,000
Alex. Brown & Sons Incorporated 418,000
Dean Witter Reynolds Inc. 418,000
A.G. Edwards & Sons, Inc. 418,000
Legg Mason Wood Walker, Incorporated 418,000
Bear, Stearns & Co. Inc. 60,000
Dillon, Read & Co. Inc. 60,000
Kidder, Peabody & Co. Incorporated 60,000
Lehman Brothers Inc. 60,000
Oppenheimer & Co., Inc 60,000
PaineWebber Incorporated 60,000
Smith Barney Inc. 60,000
Wertheim Schroder & Co. Incorporated 60,000
Advest, Inc. 30,000
Robert W. Baird & Co. Incorporated 30,000
J.C. Bradford & Co. 30,000
City Securities Corporation 30,000
Cowen & Company 30,000
Dain Bosworth Incorporated 30,000
Doft & Co., Inc. 30,000
Fahnestock & Co. Inc. 30,000
First Albany Corporation 30,000
First of Michigan Corporation 30,000
Gruntal & Co., Incorporated 30,000
Interstate/Johnson Lane Corporation 30,000
Janney Montgomery Scott Inc. 30,000
Edward D. Jones & Co. 30,000
Kemper Securities, Inc. 30,000
McDonald & Company Securities, Inc. 30,000
Morgan Keegan & Company, Inc. 30,000
The Ohio Company 30,000
Piper Jaffray Inc. 30,000
Principal Financial Securities, Inc. 30,000
Raffensperger, Hughes & Co., Inc. 30,000
Ragen MacKenzie Incorporated 30,000
Rauscher Pierce Refsnes, Inc. 30,000
The Robinson-Humphrey Company, Inc. 30,000
Roney & Co. 30,000
Stephens Inc. 30,000
Sutro & Co. Incorporated 30,000
Traub and Company, Inc. 30,000
Tucker Anthony Incorporated 30,000
Utendahl Capital Partners, L.P. 30,000
Wheat, First Securities, Inc. 30,000
----------
TOTAL 3,500,000
----------
----------
</TABLE>
<PAGE>
The Underwritten Securities shall have the following terms:
<TABLE>
<S> <C>
Title of Securities: Common Stock
Number of Shares: 3,500,000
Initial public offering price per share: $25.25
Purchase price per share: $23.86
Number of Option Securities: 525,000
Closing Time, date and location: September 28, 1994, 10:00 a.m., New York
City Time, Rogers & Wells, 200 Park
Avenue, New York, New York 10166
</TABLE>
All the provisions contained in the document attached as Annex A
hereto entitled "Duke Realty Investments, Inc. - Common Stock and Preferred
Stock - Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
2
<PAGE>
Please accept this offer no later than 7 o' clock P.M. (New York City
time) on September 21, 1994 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
A.G. EDWARDS & SONS, INC.
DEAN WITTER REYNOLDS INC.
LEGG MASON WOOD WALKER, INCORPORATED
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BY: /s/ MARTIN J. CICCO
---------------------------------------
For themselves and as Representatives
of the Underwriters named herein.
CONFIRMED AND ACCEPTED:
as of the date first above written
DUKE REALTY INVESTMENTS, INC.
BY: /s/ DARELL E. ZINK, JR.
------------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
3
<PAGE>
Annex A
DUKE REALTY INVESTMENTS, INC.
(an Indiana Corporation)
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
September 21, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
World Financial Center
North Tower
New York, New York 10281
Dear Sirs:
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") and (ii) shares of preferred stock, $.01 par value ("Preferred Stock").
As used herein, "Securities" shall mean the Common Stock and the Preferred
Stock. As used herein, "Merrill Lynch" shall mean Merrill Lynch, Pierce, Fenner
& Smith Incorporated. As used herein, "Representatives," unless the context
otherwise requires, shall mean the parties to whom this Agreement is addressed
together with the other parties, if any, identified in the applicable Terms
Agreement (as hereinafter defined) as additional co-managers with respect to
Underwritten Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities through
the Representatives or through an underwriting syndicate managed by the
Representatives, the Company will enter into an agreement (the "Terms
Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include the Representatives whether
acting alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten
Securities shall specify the number of Underwritten Securities of each class or
series to be initially issued (the "Initial Underwritten Securities"), the names
of the Underwriters participating in such offering (subject to substitution as
provided in Section 10 hereof), the number of Initial Underwritten Securities
which each such Underwriter severally agrees to purchase, the names of such
Representatives or such other Underwriters acting as co-managers, if any, in
connection with such offering, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, the time, date and place of delivery and payment, any
delayed delivery arrangements and any other variable terms
<PAGE>
of the Initial Underwritten Securities (including, but not limited to, current
ratings (in the case of Preferred Stock), designations, liquidation preferences,
conversion provisions, voting and other rights). In addition, each Terms
Agreement shall specify whether the Company has agreed to grant to the
Underwriters an option to purchase additional Underwritten Securities to cover
over-allotments, if any, and the number of Underwritten Securities subject to
such option (the "Option Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of the Option Securities agreed to be purchased by the Underwriters as
provided herein, if any. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Representatives and the Company.
Each offering of Underwritten Securities through the Representatives or through
an underwriting syndicate managed by the Representatives will be governed by
this Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-54997) for the
registration of the Securities (including the Underwritten Securities) under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and the Company
has filed such amendments thereto as may have been required prior to the
execution of the applicable Terms Agreement. Such registration statement (as
amended) has been declared effective by the Commission. Such registration
statement (as amended), on the one hand, and the prospectus constituting a part
thereof and each prospectus supplement relating to the offering of Underwritten
Securities provided to the Underwriters for use (whether or not such prospectus
supplement is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations) (the "Prospectus Supplement"), on the other hand,
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the 1933 Act, the Securities Exchange Act of
1934, as amended (the "1934 Act") or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, however,
that a Prospectus Supplement shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Securities to which it
relates. All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include,
without limitation, any document filed under the 1934 Act which is or is deemed
to be incorporated by reference in the Registration Statement or the Prospectus,
as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and Duke Realty Limited Partnership (the "Operating
Partnership") represent and warrant, jointly and severally, to each Underwriter
as of the date hereof and as of the date of the applicable Terms Agreement (such
latter date being hereinafter referred to as a "Representation Date") as
follows:
(i) The Registration Statement and the Prospectus, at the
time the Registration Statement became effective, complied, and as of the
applicable Representation Date will comply, in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and on such
dates the Registration Statement and the Prospectus did not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the date hereof, at the
Closing Time referred to in Section 2 hereof and on the Representation
Date, will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and will not include an untrue
statement of a material fact required to be stated therein or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the representations and warranties
in this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the
2
<PAGE>
Company in writing by the Underwriters through Merrill Lynch expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated or deemed to be incorporated
by reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date or Closing Time or during the period specified in
Section 3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) KPMG Peat Marwick LLP, the accounting firm that audited
the financial statements and supporting schedules included in, or
incorporated by reference into, the Registration Statement and Prospectus,
are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) The financial statements (including the notes thereto)
included in, or incorporated by reference into, the Registration Statement
and the Prospectus present fairly the financial position of the respective
entity or entities presented therein at the respective dates indicated and
the results of their operations for the respective periods specified;
except as otherwise stated in the Registration Statement and Prospectus,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the information
required to be stated therein. The financial information and data
included in the Registration Statement and the Prospectus present fairly
the information included therein and have been prepared on a basis
consistent with that of the financial statements included or incorporated
by reference in the Registration Statement and the Prospectus and the
books and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the Prospectus has been prepared in accordance
with the applicable requirements of the 1933 Act, the 1933 Act Regulations
and guidelines of the American Institute of Certified Public Accountants
with respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial position
of the Company at the respective dates indicated and the results of
operations for the respective periods specified.
(v) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or the Operating Partnership, threatened by the Commission or
by the state securities authority of any jurisdiction. No order
preventing or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or the Operating Partnership, threatened by the Commission or
by the state securities authority of any jurisdiction.
(vi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of the Company, the Operating
Partnership, Duke Realty Services Limited Partnership (the "Services
Partnership"), Duke Construction Limited Partnership (the "Construction
Partnership"), Duke Services, Inc. ("DSI"), whether or not arising in the
ordinary course of business, (B) there has been no adverse change,
material to the Duke Group (as hereinafter defined) as a whole, in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of any of the properties owned, directly or
indirectly, by the Operating Partnership and listed in the Prospectus (the
"Properties") or any entity wholly or partially owned by the Operating
Partnership which owns any Property (a "Property
3
<PAGE>
Partnership") (the Company, the Operating Partnership, the Services
Partnership, the Construction Partnership, DSI and the Property
Partnerships are hereinafter jointly referred to as the "Duke Group") ,
whether or not arising in the ordinary course of business, (B) no material
casualty loss or material condemnation or other material adverse event
with respect to any Property has occurred, (C) there have been no
transactions or acquisitions entered into by the Duke Group, other than
those in the ordinary course of business, which are material with respect
to the Duke Group as a whole, (D) except for regular quarterly dividends
on Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock and (E) with
the exception of transactions in connection with (x) the 1993 Duke Realty
Option Plan (the "Stock Option Plan") as described in the prospectus
included in the Company's registration statement filed with the Commission
in 1993 on Form S-2, File No. 33-64038 (the "1993 Prospectus"), (y) the
Automatic Dividend Reinvestment Plan as described in the Prospectus (the
"Dividend Reinvestment Plan"), and (z) the possible issuance of shares of
Common Stock upon the exchange of partnership interests in the Operating
Partnership ("Units"), there has been no change in the capital stock of
the Company or DSI, or in the partnership interests of the Operating
Partnership, the Services Partnership, the Construction Partnership or any
Property Partnership, or any material increase in the indebtedness of the
Duke Group as a whole.
(vii) The Company is a corporation duly organized and existing
under and by virtue of the laws of the State of Indiana, has filed its
most recent annual report required by law with the Secretary of State of
Indiana and has not filed Articles of Dissolution; the Company has
corporate power and authority to own, lease and operate its properties and
to conduct the business in which it is engaged or proposes to engage as
described in the Prospectus, to enter into and perform its obligations
under this Agreement and the Terms Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Company or
any Property.
(viii) The Operating Partnership is a limited partnership duly
organized and existing under and by virtue of the laws of the State of
Indiana, with all requisite power and authority to own, lease and operate
its properties, to conduct the business in which it is engaged and
proposes to engage as described in the Prospectus, and to enter into and
perform its obligations under this Agreement. The Operating Partnership
is duly qualified or registered as a foreign partnership and will be in
good standing in each jurisdiction in which such qualification or
registration is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify or register would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Operating Partnership or any
Property. The Company is the sole general partner of the Operating
Partnership. The agreement of limited partnership of the Operating
Partnership (the "Operating Partnership Agreement") is in full force and
effect.
(ix) DSI is a corporation duly organized and existing under
and by virtue of the laws of the State of Indiana, has filed its most
recent annual report required by law with the Secretary of State of
Indiana or is not yet required to file such annual reports, and has not
filed Articles of Dissolution; DSI has corporate power and authority to
own, lease and operate its properties, and to conduct the business in
which it is engaged. DSI is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs or
business prospects of DSI. All of the issued and outstanding capital
stock of DSI has been duly authorized and validly issued and is fully paid
and non-assessable, has been offered and sold in compliance with all
applicable laws (including without limitation, federal or state securities
laws) and is owned by the
4
<PAGE>
Company. No shares of capital stock of DSI are reserved for any purpose,
and there are no outstanding securities convertible into or exchangeable
for any capital stock of DSI and no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to subscribe for
shares of such capital stock or any other securities of DSI.
(x) The Services Partnership is a limited partnership duly
organized and existing under and by virtue of the laws of the State of
Indiana, with all requisite power and authority to own, lease and operate
its properties, to conduct the business in which it is engaged, and to
enter into and perform its obligations under the agreements to which it is
a party. The Services Partnership is duly qualified or registered as a
foreign partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Services Partnership or any
Property. DSI is the sole general partner and a 1% owner of the Services
Partnership, and the Operating Partnership and DMI Partnership are the
sole limited partners and 9% and 90% owners, respectively, of the Services
Partnership. The agreement of limited partnership of the Services
Partnership (the "Services Partnership Agreement") is in full force and
effect.
(xi) The Construction Partnership is a limited partnership
duly organized and existing under and by virtue of the laws of the State
of Indiana, with all requisite power and authority to own, lease and
operate its properties, and to conduct the business in which it is
engaged. The Construction Partnership is duly qualified or registered as
a foreign partnership and is in good standing in each jurisdiction in
which such qualification or registration is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or register would not have a material
adverse effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Construction
Partnership or any Property. The Services Partnership is the sole general
partner and a 5% owner of the Construction Partnership, and DMI
Partnership is the sole limited partner and a 95% owner of the
Construction Partnership. The agreement of limited partnership of the
Construction Partnership (the "Construction Partnership Agreement") is in
full force and effect.
(xii) Each of the Property Partnerships is a limited or
general partnership, as the case may be, duly organized and existing under
and by virtue of the laws of its respective jurisdiction of formation and,
if formed under the laws of a jurisdiction other than the State of
Indiana, in good standing under the laws of such jurisdiction; each of the
Property Partnerships has the requisite power and authority to own, lease
and operate its properties, to conduct the business in which it is engaged
and to enter into and perform its respective obligations under the
agreements to which it is a party. Each of the partnership agreements of
the Property Partnerships is in full force and effect.
(xiii) The capital stock of the Company is as set forth in the
Prospectus under "Capitalization." All the issued and outstanding shares
of Common Stock have been duly authorized and are validly issued, fully
paid and non-assessable and have been offered and sold in compliance with
all applicable laws (including, without limitation, federal, state or
foreign securities laws). No shares of capital stock of the Company are
reserved for any purpose except in connection with the Stock Option Plan,
the Dividend Reinvestment Plan, and the possible issuance of shares of
Common Stock upon the exchange of Units. Except for shares of Common
Stock issuable upon the exercise of options under the Stock Option Plan,
under the Dividend Reinvestment Plan, or upon exchange of Units as
described in the Prospectus and the 1993 Prospectus, there are no
outstanding securities convertible into or exchangeable for any capital
stock of the Company and no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares of such
stock or any other securities of the Company.
(xiv) All the issued and outstanding Units have been duly
authorized and are validly issued, fully paid and non-assessable and have
been offered and sold or exchanged in compliance with all
5
<PAGE>
applicable laws (including, without limitation, federal, state or foreign
securities laws). As of the date hereof, 20,495,630 Units are issued and
outstanding, 16,046,144 Units of which have been issued to the Company.
There are no outstanding securities convertible into or exchangeable for
any Units and no outstanding options, rights (preemptive or otherwise) or
warrants to purchase or to subscribe for Units.
(xv) The applicable Underwritten Securities have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement, and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in the Terms
Agreement, will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of the Underwritten Securities
in accordance herewith, each of the Underwriters will receive good, valid
and marketable title to the Underwritten Securities, free and clear of all
security interests, mortgages, pledges, liens, encumbrances, claims and
equities. The terms of the applicable Underwritten Securities conform to
all statements and descriptions related thereto contained in the
Prospectus. The form of stock certificate to be used to evidence the
applicable Underwritten Securities will be in due and proper form and will
comply with all applicable legal requirements. The issuance of the
Underwritten Securities is not subject to any preemptive or other similar
rights.
(xvi) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock will have been duly and validly authorized
and reserved for issuance upon such conversion or exercise by all
necessary action and such stock, when issued upon such conversion or
exercise, will be duly and validly issued, fully paid and non-assessable,
and the issuance of such stock upon such conversion or exercise will not
be subject to preemptive or other similar rights; the Common Stock so
issuable conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(xvii) None of the entities comprising the Duke Group is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which such entity is a party or by
which such entity may be bound, or to which any of its property or assets
is subject, which default separately or in the aggregate would have a
material adverse effect on the Duke Group as a whole.
(xviii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, and, assuming due authorization, execution and delivery by
the Representatives, is a valid and binding agreement, enforceable in
accordance with its terms; and (B) at the Representation Date, the Terms
Agreement will have been duly and validly authorized, executed and
delivered by the Company, and, assuming due authorization, execution and
delivery by the Representatives, will be a valid and binding agreement,
enforceable in accordance with its terms.
(xix) The execution and delivery of this Agreement and the
applicable Terms Agreement, the performance of the obligations set forth
herein or therein, and the consummation of the transactions contemplated
hereby and thereby or in the Prospectus by the Company and, in respect to
this Agreement only, the Operating Partnership, will not conflict with or
constitute a breach or violation by the Company or the Operating
Partnership of, or default under, (A) any contract, indenture, mortgage,
loan agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement to which the Company or the Operating
Partnership is a party or by which they, either of them, any of their
respective properties or other assets or any Property may be bound or
subject which is material to the Duke Group as a whole; (B) the charter,
by-laws, certificate of limited partnership or partnership agreement, as
the case may be, of the Company or the Operating Partnership; or (C) to
the extent it is material, any applicable law, rule, order, administrative
regulation or administrative or court decree.
(xx) No labor dispute with the employees of the Duke Group
exists or, to the knowledge of the Company or the Operating Partnership,
is imminent; and each of the Company and the
6
<PAGE>
Operating Partnership is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors which might be expected to result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group.
(xxi) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company or the Operating Partnership,
threatened against or affecting any entity belonging to the Duke Group,
any Properties or any officer or director of the Company, which is
material to the Duke Group as a whole and is required to be disclosed in
the Registration Statement or the Prospectus (other than as disclosed
therein), or that, if determined adversely to any entity belonging to the
Duke Group or any Property, or any such officer or director, will or could
reasonably be expected to result in any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Duke Group as a whole. There are no
pending legal or governmental proceedings to which any entity belonging to
the Duke Group is a party or of which they or any of their respective
properties or assets or any Property Partnership is the subject, including
ordinary routine litigation incidental to the business, that are,
considered in the aggregate, material to the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of the Duke Group as a whole. There are no contracts or documents of the
entities comprising the Duke Group which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xxii) At all times since February 13, 1986, the Company has
been, and upon the sale of the applicable Underwritten Securities, the
Company will continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and its proposed
method of operation will enable it to continue to meet the requirements
for taxation as a real estate investment trust under the Code.
(xxiii) None of the entities comprising the Duke Group is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxiv) None of the entities comprising the Duke Group is
required to own or possess any trademarks, service marks, trade names or
copyrights not now lawfully owned, possessed or licensed in order to
conduct the business now operated by such entity.
(xxv) No authorization, approval, consent, or order of any
court or governmental authority or agency or other entity or person is
necessary in connection with the offering, issuance or sale of the
Underwritten Securities hereunder or under the applicable Terms Agreement,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or state or foreign securities or real estate syndication laws
or such as have been received prior to the date of this Agreement or the
applicable Representation Date.
(xxvi) Each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by it, or proposed to be conducted by
it, and none of the entities comprising the Duke Group has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects of the Duke
Group as a whole.
(xxvii) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
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(xxviii) The Common Stock will be listed on the New York Stock
Exchange on the applicable Representation Date and at the applicable
Closing Time. Unless otherwise agreed upon with reference to Preferred
Stock, as of the applicable Representation Date the Preferred Stock will
have been approved for listing on the New York Stock Exchange upon notice
of issuance.
(xxix) (A) With respect to the Properties, the Operating
Partnership and the Property Partnerships have good and marketable title
to all items of real property (and improvements thereon), leasehold
interests and general and limited partnership interests, in each case free
and clear of all liens, encumbrances, claims, security interests and
defects, except such as are (i) described in the Prospectus or the 1993
Prospectus, (ii) referred to in the title policies delivered pursuant to
the respective Property Contribution Agreements executed in connection
with the reorganization of the Company in 1993, (iii) with respect to
Properties acquired since the date of the 1993 Prospectus, referred to in
the title policies of such Properties, (iv) serving as security for loans
described in the Prospectus or the 1993 Prospectus, and (v) nonmaterial
and placed on a Property in connection with such Property's development;
(B) all contracts (i) of the Operating Partnership to provide leasing,
property management and construction management services, (ii) of the
Construction Partnership to provide general contractor services for third
parties, and (iii) of the Services Partnership associated with the
leasing, property management, real estate development, construction and
miscellaneous tenant services businesses (the "Related Businesses"), are
enforceable by and in the name of the Operating Partnership, the
Construction Partnership or the Services Partnership, as the case may be;
(C) all liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties or Related Businesses and the assets of
the entities comprising the Duke Group which are required to be disclosed
in the Prospectus are disclosed therein; (D) neither the Operating
Partnership, any Property Partnership nor any tenant of any of the
Properties is in default under any of the ground leases (as lessee) or
space leases (as lessor) relating to, or any of the mortgages or other
security documents or other agreements encumbering or otherwise recorded
against, the Properties, and none of the entities comprising the Duke
Group knows of any event which, but for the passage of time or the giving
of notice, or both, would constitute a default under any of such documents
or agreements, other than such defaults that would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, assets, business affairs or business prospects of or with
respect to the Duke Group as a whole; (E) no tenant under any of the
leases, pursuant to which the Operating Partnership or any Property
Partnership, as lessor, leases its Property, has an option or right of
first refusal to purchase the premises demised under such lease, the
exercise of which would have a material adverse effect on the Duke Group
as a whole; (F) each of the Properties complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning
codes, laws and regulations and laws relating to access to the
Properties), except for such failures to comply that would not
individually or in the aggregate have a material adverse effect on the
condition, financial or otherwise, or on the earnings, assets, business
affairs or business prospects of the Duke Group as a whole; and (G)
neither the Company nor the Operating Partnership has knowledge of any
pending or threatened condemnation proceedings, zoning change, or other
proceeding or action that will in any manner affect the size of, use of,
improvements on, construction on or access to the Properties, except such
proceedings or actions that would not have a material adverse effect on
the condition, financial or otherwise, or on the earnings, assets,
business affairs or business prospects of or with respect to such
Property, the Operating Partnership or the Property Partnership owning an
interest in such Property.
(xxx) Immediately following the application of the proceeds of
the sale of the Underwritten Securities in the manner set forth in the
Prospectus, the mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus will not be convertible and none of
the Property Partnerships nor any person related to or affiliated with the
Property Partnerships will hold a participating interest therein and said
mortgages and deeds of trust will not be cross-defaulted or
cross-collateralized with any property not owned by the Operating
Partnership.
(xxxi) Except as disclosed in the Prospectus, and, with respect
to clauses (A), (B) and (C) below, except for activities, conditions,
circumstances or matters that would not have a material adverse
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effect on the condition, financial or otherwise, or on the earnings,
assets, business affairs or business prospects of or with respect to any
Property or the Property Partnership owning an interest in such Property,
(A) each Property, including, without limitation, the Environment (as
defined below) associated with such Property, is free of any Hazardous
Substance (as defined below), (B) neither the Company nor the Operating
Partnership nor any Property Partnership has caused or suffered to occur
any Release (as defined below) of any Hazardous Substance into the
Environment on, in, under or from any Property, and no condition exists
on, in, under or, to the knowledge of the Company or the Operating
Partnership, that could result in the incurrence of material liabilities
or any material violations of any Environmental Law (as defined below),
give rise to the imposition of any Lien (as defined below) under any
Environmental Law, or cause or constitute a health, safety or
environmental hazard to any property, person or entity; (C) neither the
Company, the Operating Partnership nor any Property Partnership is engaged
in or intends to engage in any manufacturing or any other operations at
the Properties that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance or (2) require
permits or are otherwise regulated pursuant to any Environmental Law,
other than permits which have been obtained; (D) neither the Company nor
the Operating Partnership nor any Property Partnership has received any
notice of a claim material to the Duke Group as a whole under or pursuant
to any Environmental Law or under common law pertaining to Hazardous
Substances on or originating from any Property; (E) neither the Company
nor the Operating Partnership nor any Property Partnership has received
any notice from any Governmental Authority (as defined below) claiming any
violation of any Environmental Law; and (F) no Property is included or, to
the knowledge of the Company or the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA (as
defined below) by the United States Environmental Protection Agency (the
"EPA") or, with the exception of one Property, in respect to which the EPA
has advised the Company that no further remedial action is planned, on the
Comprehensive Environmental Response, Compensation, and Liability
Information System database maintained by the EPA, and has not otherwise
been identified by the EPA as a potential CERCLA removal, remedial or
response site or included or, to the knowledge of the Company or the
Operating Partnership, proposed for inclusion on, any similar list of
potentially contaminated sites pursuant to any other Environmental Law.
Excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or located at any
Property, as used herein "Hazardous Substance" shall include, without
limitation, any hazardous substance, hazardous waste, toxic or dangerous
substance, pollutant, solid waste or similarly designated materials,
including, without limitation, oil, petroleum or any petroleum-derived
substance or waste, asbestos or asbestos-containing materials, PCBs,
pesticides, explosives, radioactive materials, dioxins, urea formaldehyde
insulation or any constituent of any such substance, pollutant or waste,
including any such substance, pollutant or waste identified or regulated
under any Environmental Law (including, without limitation, materials
listed in the United States Department of Transportation Optional
Hazardous Material Table, 49 C.F.R. Section 172.101, as the same may now
or hereafter be amended, or in the EPA's List of Hazardous Substances and
Reportable Quantities, 40 C.F.R. Part 3202, as the same may now or
hereafter be amended); "Environment" shall mean any surface water,
drinking water, ground water, land surface, subsurface strata, river
sediment, buildings, structures, and ambient, workplace and indoor and
outdoor air; "Environmental Law" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et seq.) ("CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et seq.),
the Clean Air Act, as amended (42 U.S.C. Section 7401, et seq.), the
Clean Water Act, as amended (33 U.S.C. Section 1251, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Section 2601, et seq.), the
Act of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Occupational Safety and Health Materials Transportation Act, as amended
all other federal, state and local laws, ordinances, regulations, rules,
orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects; "Governmental
Authority" shall mean any federal, state or local governmental office,
agency or authority having the duty or authority to promulgate, implement
or enforce any Environmental Law; "Lien" shall mean, with respect to any
Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment,
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judgment or other liability in, on or affecting such Property; and
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, emanating
or disposing of any Hazardous Substance into the Environment, including,
without limitation, the abandonment or discard of barrels, containers,
tanks (including, without limitation, underground storage tanks) or other
receptacles containing or previously containing any Hazardous Substance or
any release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxxii) Each of the Company and the Operating Partnership has
filed all federal, state, local and foreign income tax returns which have
been required to be filed (except in any case in which the failure to so
file would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of such entity) and has paid all taxes required to be paid and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except, in all cases, for
any such tax, assessment, fine or penalty that is being contested in good
faith.
(b) Any certificate signed by any officer of the Company or the
Operating Partnership and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by such entity to
each Underwriter as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per Option Security as is
applicable to the Initial Underwritten Securities. Such option, if granted,
will expire 30 days (or such lesser number of days as may be specified in the
applicable Terms Agreement) after the Representation Date relating to the
Initial Underwritten Securities, and may be exercised in whole or in part from
time to time only for the purpose of covering over-allotments which may be made
in connection with the offering and distribution of the Initial Underwritten
Securities upon notice by the Representatives to the Company setting forth the
number of Option Securities as to which the several Underwriters are then
exercising the option and the time and date of payment and delivery for such
Option Securities. Any such time, date and place of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by the Representatives and the Company. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Underwritten Securities each such Underwriter has severally agreed to
purchase as set forth in the applicable Terms Agreement bears to the total
number of Initial Underwritten Securities (except as otherwise provided in the
applicable Terms Agreement), subject to such adjustments as the Representatives
in their discretion shall make to eliminate any sales or purchases of fractional
Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates for,
the Underwritten Securities to be purchased by the Underwriters shall be made at
the offices of Rogers & Wells, 200 Park Avenue, New York, New York 10166, or at
such other place as shall be agreed upon by the Representatives and the Company,
at 10:00 A.M. on the fifth business day (unless postponed in accordance with the
provisions of Section 10) following the date of the applicable Terms Agreement
or at such other time as shall be agreed upon by the Representatives and the
Company (each referred to herein as the "Closing Time"). In addition, in the
event that any or all of the Option
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Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices of Rogers & Wells, or at such other place as shall be
agreed upon by the Representatives and the Company, on each Date of Delivery as
specified in the notice from the Representatives to the Company. Payment shall
be made to the Company by certified or official bank check or checks drawn in
New York Clearing House funds or similar next day funds payable to the order of
the Company, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Underwritten Securities to be
purchased by them. Certificates for the Underwritten Securities and the Option
Securities, if any, shall be in such denominations and registered in such names
as the Representatives may request in writing at least two business days before
the Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities and the Option Securities, if any, which
it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities or the Option
Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but any such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Initial Underwritten Securities and the
Option Securities, if any, will be made available for examination and packaging
by the Representatives not later than 10:00 A.M. on the last business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be, in New
York, New York.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP.
Each of the Company and the Operating Partnership covenants with the
Representatives, and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities, the
Company will prepare a Prospectus Supplement setting forth the number of
Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities
are being issued, the names of the Underwriters participating in the
offering and the number of Underwritten Securities which each severally
has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, if any, the selling concession
and reallowance, if any, and such other information as the Representatives
and the Company deem appropriate in connection with the offering of the
Underwritten Securities; and the Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus (including such Prospectus
Supplement) as the Representatives shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule 430A
of the 1933 Act Regulations, then immediately following the execution of
the Terms Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule
424(b) of the 1933 Act Regulations, a copy of an amended Prospectus, or,
if required by such Rule 430A, a post-effective amendment to the
Registration Statement (including amended Prospectuses), containing all
information so omitted.
(c) The Company will notify the Representatives immediately, and
confirm such notice in writing, of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the transmittal to the Commission for
filing of any Prospectus Supplement or other supplement or amendment to
the Prospectus to be filed pursuant to the 1933 Act, (iii) the receipt of
any comments from the Commission, (iv) any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings
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<PAGE>
for that purpose; and the Company will make every reasonable effort to
prevent the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(d) At any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, the Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether
pursuant to the 1933 Act, 1934 Act or otherwise, and will furnish the
Representatives with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing and, unless
required by law, will not file or use any such amendment or supplement or
other documents in a form to which the Representatives or counsel for the
Underwriters shall reasonably object.
(e) The Company will deliver to the Representatives as soon as
possible as many signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference
therein) as the Representatives may reasonably request and will also
deliver to the Representatives as many conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus) as the
Representatives may reasonably request.
(f) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or
the respective applicable rules and regulations of the Commission
thereunder.
(g) If any event shall occur as a result of which it is necessary,
in the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading
in the light of the circumstances existing at the time it is delivered to
a purchaser, the Company will forthwith amend or supplement the Prospectus
(in form and substance satisfactory to counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading, and the Company will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities for offering and sale
under the applicable securities laws and real estate syndication laws of
such states and other jurisdictions as the Representatives may designate.
In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification
in effect for so long as may be required for the distribution of the
Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 of the 1933 Act Regulations) covering a twelve
month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said
Rule 158) of the Registration Statement.
(j) The Company will use the net proceeds received by it from the
sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
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(k) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Sections
13, 14 or 15 of the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies
that have securities listed on such exchange and, unless otherwise agreed
upon with respect to Preferred Stock, will use its best efforts to
maintain the listing of the Underwritten Securities on the New York Stock
Exchange.
(m) During a period of 90 days from the date of any Prospectus
Supplement, the Company will not, without the prior written consent of the
Representatives, directly or indirectly, sell, offer to sell, grant any
option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking on a
parity with any Underwritten Securities (other than the Underwritten
Securities covered by such Prospectus Supplement) or any security
convertible into or exchangeable for shares of such Underwritten
Securities, and (ii) if such Prospectus Supplement relates to Preferred
Stock that is convertible into or exchangeable for Common Stock, any
Common Stock or Units or any security convertible into or exchangeable for
shares of Common Stock. This transfer restriction does not apply to (i)
the possible issuance of shares of Common Stock upon the exchange of Units
by holders of Units other than DMI Partnership and the directors and
executive officers of the Company, (ii) grants of options, and the
issuance of shares in respect of such options, pursuant to the Stock
Option Plan, (iii) the issuance of shares pursuant to the Dividend
Reinvestment Plan and (iv) the issuance of shares of Common Stock, or
any security convertible into or exchangeable or exercisable for its
Common Stock, in connection with the acquisition of real property or an
interest or interests in real property, if the recipient of such shares or
other securities agrees in writing to not, without the prior written
consent of Merrill Lynch and the Company, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of
any of such securities until the expiration of a 90-day period from the
date of any Prospectus Supplement.
(n) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive
rights and other similar rights, a sufficient number of shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations
to issue such Common Stock upon conversion of the Preferred Stock.
(o) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the Common Stock on the New York
Stock Exchange.
(p) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the
Code.
(q) During the period from the Closing Time until five years after
the Closing Time, the Company will deliver to the Representatives, (i)
promptly upon their becoming available, copies of all current, regular and
periodic reports of the Company mailed to its stockholders or filed with
any securities exchange or with the Commission or any governmental
authority succeeding to any of the Commission's functions, and (ii) such
other information concerning the Company as the Representatives may
reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incident to the performance of its obligations under this Agreement and the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the cost of printing, or reproducing, and distributing to the Underwriters
copies of this Agreement and the applicable Terms Agreement, (iii) the
preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, including capital
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duties, stamp duties and stock transfer taxes, if any, payable upon issuance of
any of the Underwritten Securities, the sale of the Underwritten Securities to
the Underwriters, their transfer between the Underwriters and the Underwriters
pursuant to an agreement between such Underwriters and the fees and expenses of
the transfer agent for the Underwritten Securities, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Underwritten Securities and the Common Stock issuable upon conversion of
Preferred Stock, if any, under securities laws and real estate syndication laws
in accordance with the provisions of Section 3(h) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (vi)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto,
(vii) the cost of printing, or reproducing, and delivering to the Underwriters
copies of the Blue Sky Survey, (viii) the fee of the National Association of
Securities Dealers, Inc., if any, (ix) the fees and expenses incurred in
connection with the listing of the Underwritten Securities and the Common Stock
issuable upon conversion of Preferred Stock, if any, on the New York Stock
Exchange, (x) any fees charged by nationally recognized statistical rating
organizations for the rating of the Securities, if any, and (xi) any transfer
taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
If this Agreement is cancelled or terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i) or Section 10
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company and
the Operating Partnership herein contained, to the performance by the Company
and the Operating Partnership of their respective obligations hereunder, and to
the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission and (ii) if Preferred Stock is being offered, the rating
assigned by any nationally recognized statistical rating organization as
of the date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly
announced that it has placed the Preferred Stock on what is commonly
termed a "watch list" for possible downgrading.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Bose
McKinney & Evans, counsel for each of the Company, the Operating
Partnership, the Services Partnership, the Construction Partnership
and DSI, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) Each of the Company and DSI is a corporation
duly organized and existing under and by virtue of the laws of
the State of Indiana, has filed its most recent annual report
required by law with the Secretary of State of Indiana or is
not yet required to file such annual reports, and has not
filed Articles of Dissolution.
(ii) Each of the Company and DSI has corporate
power and authority to own, lease and operate its properties,
to conduct the business in which it is engaged or proposes to
engage as described in the 1993 Prospectus and the Prospectus
and to enter into and perform its obligations under this
Agreement and the other agreements to which it is a party.
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(iii) Each of the Company and DSI is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects
of the Company or any Property.
(iv) Each of the Operating Partnership, the
Services Partnership and the Construction Partnership is a
limited partnership duly organized and existing under and by
virtue of the laws of the State of Indiana. Each of the
Operating Partnership, the Services Partnership and the
Construction Partnership has all requisite power and authority
to own, lease and operate its properties, to conduct the
business in which it is engaged and proposes to engage as
described in the 1993 Prospectus and the Prospectus, and to
enter into and perform its obligations under this Agreement
and the other agreements to which it is a party. Each of the
Operating Partnership, the Services Partnership and the
Construction Partnership is duly qualified or registered as a
foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or register would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of
the Operating Partnership, the Services Partnership, the
Construction Partnership or any Property or Related Business.
The Company is the sole general partner of the Operating
Partnership. DSI is the sole general partner of the Services
Partnership. The Services Partnership is the sole general
partner of the Construction Partnership. Each of the
Operating Partnership Agreement, the Services Partnership
Agreement and the Construction Partnership Agreement is in
full force and effect, and the percentage interests and the
rights to receive distributions of the partners in the
Operating Partnership, the Services Partnership and the
Construction Partnership are as set forth in the 1993
Prospectus and the Prospectus.
(v) Each of the Property Partnerships is a
limited or general partnership, as the case may be, duly
organized and existing under and by virtue of the laws of its
respective jurisdiction of formation and, if formed under the
laws of a jurisdiction other than the State of Indiana, in
good standing under the laws of such jurisdiction; each
Property Partnership has all requisite power and authority to
own, lease and operate the Properties, to conduct the business
in which it is engaged and to enter into and perform its
respective obligations under the agreements to which it is a
party. Each of the partnership agreements of the Property
Partnerships is in full force and effect.
(vi) The capital stock of the Company is as set
forth in the Prospectus under "Capitalization." All the
issued and outstanding shares of Common Stock have been duly
authorized and are validly issued, fully paid and
non-assessable. No shares of capital stock of the Company are
reserved for any purpose except in connection with (i) the
Stock Option Plan, (ii) the Dividend Reinvestment Plan and
(iii) the possible issuance of shares of Common Stock upon the
exchange of Units. Except for Units, there are no outstanding
securities convertible into or exchangeable for any capital
stock of the Company, and except for options under the Stock
Option Plan, there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or to
subscribe for shares of such stock or any other securities of
the Company.
(vii) The applicable Underwritten Securities have
been duly authorized for issuance and sale to the Underwriters
and the Representatives pursuant to
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this Agreement and the applicable Terms Agreement and, when
issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in the
applicable Terms Agreement, will be validly issued, fully paid
and non-assessable. Each of the Underwriters is receiving
good, valid and marketable title to the Underwritten
Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities.
The terms of the applicable Underwritten Securities conform to
all statements and descriptions related thereto contained in
the Prospectus. The issuance of the applicable Underwritten
Securities is not subject to any preemptive or other similar
rights.
(viii) To the best knowledge of such counsel, none
of the entities comprising the Duke Group is in violation of
its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which such entity is a party or by which such entity may be
bound, or to which any of the property or assets of such
entity is subject, except for defaults which are not material
to the Duke Group as a whole.
(ix) This Agreement and the applicable Terms
Agreement were duly and validly authorized, executed and
delivered by the Company and the Operating Partnership, as
applicable, and, assuming due authorization, execution and
delivery by any other party thereto, is a valid and binding
agreement, enforceable in accordance with its terms, except as
such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other
similar laws affecting the rights and remedies of creditors
generally and (2) subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and except as rights to
indemnity thereunder may be limited by applicable law.
(x) Such counsel has been counsel to the Company
since its initial incorporation. It has reviewed the opinion
of Rogers & Wells relating to certain tax matters dated
September 21, 1994, and nothing has come to such counsel's
attention which would cause it to disagree with the
conclusions reached therein.
(xi) None of the entities comprising the Duke
Group is required to be registered under the 1940 Act.
(xii) No authorization, approval, consent or order
of any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the
applicable Underwritten Securities to the Underwriters
hereunder, except such as may be required under the 1933 Act
or the 1933 Act Regulations or state or foreign securities
laws, as to which such counsel need express no opinion, or
real estate syndication laws or such as have been received
prior to the date of this Agreement.
(xiii) The Registration Statement is effective
under the 1933 Act and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xiv) At the time the Registration Statement
became effective and at the Representation Date, the
Registration Statement (other than the financial statements
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and supporting schedules included therein, as to which no
opinion need be rendered) complied as to form in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(xv) To the best of their knowledge and
information, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in
the Registration Statement or the Prospectus, other than those
disclosed therein, and all pending legal or governmental
proceedings to which any of the entities comprising the Duke
Group is a party or to which any of their properties is
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(xvi) The information in the Prospectus under "The
Company," "Description of Preferred Stock," "Description of
Common Stock," and the information in the applicable
Prospectus Supplement under, if applicable, "The Company," to
the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by them and is correct and presents fairly
the information required to be disclosed therein.
(xvii) There are no contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct,
and no material default exists in the due performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed.
(xviii) To the best knowledge of such counsel, there
are no persons with registration or other similar rights to
have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the
1933 Act.
(xix) The Company satisfies all conditions and
requirements for filing the Registration Statement on Form S-3
under the 1933 Act and 1933 Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Rogers & Wells, counsel for the Underwriters, (A) with respect to
the matters set forth in Section 5(b)(1)(i) (with respect to the
Company only), Section 5(b)(1)(vii) (with respect to the first and
last sentences only), Section 5(b)(1)(ix), Section 5(b)(1)(xiii) and
(B) containing a statement similar to the statement referred to in
the first paragraph of Section 5(b)(4).
(3) In respect to Properties which are not under development
at the Closing Time, the favorable opinion, in form and substance
satisfactory to counsel for the Underwriters, dated as of the
Closing Time, of local counsel for the Operating Partnership or, if
the Operating Partnership's ownership interest in a Property
Partnership exceeds 10%, the appropriate Property Partnership,
satisfactory to the Underwriters, with respect to (i) the
organization, existence, power and authority of each Property
Partnership, (ii) zoning matters and (iii) the possession by the
Company or the applicable Property Partnership of those licenses,
permits, consents and orders of governmental, municipal or
regulatory authorities then necessary for the operation by the
Operating Partnership or the applicable Property Partnership of its
Property and as otherwise contemplated in the Registration
Statement. If the Prospectus Supplement to which the applicable
Terms Agreement relates is the first Prospectus Supplement (the
"First Prospectus Supplement")
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distributed under this Agreement, such opinion shall only be
required in respect to Properties acquired or developed since the
date of the 1993 Prospectus. For any Prospectus Supplement
distributed after the First Prospectus Supplement, such opinion
shall only be required in respect to Properties acquired or
developed since the date of the Prospectus Supplement preceding the
Prospectus Supplement in respect to which the opinion is being
delivered.
(4) In giving their opinions required by subsections (b)(1)
and (b)(2), respectively, of this Section, Bose McKinney & Evans and
Rogers & Wells shall additionally state that such counsel has
participated in conferences with officers and other representatives
of the Company and the independent public accountants for the
Company at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and in the preparation
of the Registration Statement and the Prospectus and, on the basis
of the foregoing, nothing has come to their attention that would
lead them to believe that either the Registration Statement or any
amendment thereto (excluding the financial statements and financial
schedules included or incorporated by reference therein, as to which
such counsel need express no belief), at the time it became
effective or at the time an Annual Report on Form 10-K was filed by
the Company with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (excluding the financial statements or financial
schedules included or incorporated by reference therein, as to which
such counsel need express no belief), at the Representation Date or
at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all
matters of fact, certificates and written statements of officers and
employees of and accountants for each of the entities comprising the
Duke Group and (B) as to the qualification and good standing of each
of the entities comprising the Duke Group to do business in any
jurisdiction, certificates of appropriate government officials or
opinions of counsel in such jurisdictions, and (C) in respect to the
opinion by Rogers & Wells only, as to certain matters of Indiana
law, the opinion of Bose McKinney & Evans given pursuant to Section
5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law or
in equity shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against any entity belonging to the Duke
Group which would be required to be set forth in the Prospectus other than
as set forth therein, (ii) there shall not have been, since the date of
the applicable Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus, any
material adverse change in the condition, financial or otherwise, or in
the earnings, assets, business affairs or business prospects of any entity
belonging to the Duke Group, whether or not arising in the ordinary course
of business, (iii) no proceedings shall be pending or threatened against
such entity or any Property before or by any federal, state or other
commission, board or administrative agency wherein an unfavorable
decision, ruling or finding might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, assets,
business affairs or business prospects of any entity belonging to the Duke
Group or any Property, as the case may be, other than as set forth in the
Prospectus, (iv) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or threatened by
the Commission or by the state securities authority of any jurisdiction,
and (v) the Representatives shall have received a certificate of the
President or a Vice President of the Company and the Operating Partnership
and of the chief financial or chief accounting officer of each such
entity, dated as of the Closing Time, evidencing compliance with the
provisions of this subsection (c) and stating that the representations and
warranties in
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Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from KPMG Peat Marwick
LLP a letter dated such date, in form and substance satisfactory to the
Representatives, to the effect that: (i) they are independent public
accountants with respect to the Company and the Operating Partnership as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedules included in
the Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations; (iii) based upon limited procedures set forth in
detail in such letter, including a reading of the latest available interim
financial statements of the Company, a reading of the minute books of the
Company, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing has come to their attention which causes
them to believe that (A) the unaudited financial statements of the Company
included in the Registration Statement, or incorporated by reference
therein, do not comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations, or material modifications are required for them to be
presented in conformity with generally accepted accounting principles, (B)
the operating data and balance sheet data set forth in the Prospectus
under the caption "Selected Consolidated Financial Data" were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration Statement, (C)
the pro forma financial information included or incorporated by reference
in the Registration Statement was not determined on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement or (D) at a
specified date not more than five days prior to the date of the applicable
Terms Agreement, there has been any change in the capital stock of the
Company or its subsidiaries, or any increase in the debt of the Company or
its subsidiaries or any decrease in the net assets of the Company or its
subsidiaries, as compared with the amounts shown in the most recent
consolidated balance sheet of the Company and its subsidiaries, included
in the Registration Statement or incorporated by reference therein, or,
during the period from the date of the most recent consolidated statement
of operations included in the Registration Statement or incorporated by
reference therein to a specified date not more than five days prior to the
date of the applicable Terms Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in revenues,
net income or funds from operations of the Company and its subsidiaries,
except in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or may
occur; and (iv) in addition to the audit referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have
carried out certain specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial information which
are included in the Registration Statement and Prospectus and which are
specified by the Representatives, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Company and its subsidiaries identified
in such letter.
(e) At Closing Time the Representatives shall have received from
KPMG Peat Marwick LLP a letter, dated the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished pursuant to
subsection (d) of this Section, except that the "specified date" referred
to shall be a date not more than five days prior to Closing Time.
(f) At Closing Time and at each Date of Delivery, if any, counsel
for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the applicable Underwritten Securities as
contemplated herein, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the
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issuance and sale of the applicable Underwritten Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(g) At Closing Time, the Representatives shall have received a
letter agreement from DMI Partnership and from each director and executive
officer of the Company, wherein DMI Partnership and each such director or
executive officer shall agree that during the period of 90 days from the
date of any Prospectus Supplement they will not, without the prior written
consent of Merrill Lynch and the Company (which consent, in the case of
the Company, will be subject to the approval of the Company's unaffiliated
directors), directly or indirectly, sell, offer to sell, grant any option
for the sale of, enter into any agreement to sell, or otherwise dispose
of, (i) any securities of the same class or series or ranking on a parity
with any Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if such
Prospectus Supplement relates to Preferred Stock that is convertible into
or exchangeable for Common Stock, any Common Stock or Units or any
security convertible into or exchangeable for shares of Common Stock.
Such transfer restrictions do not apply to transfers to members of the
family of such director or executive officer (or an entity for their
benefit), or to the granting of a bona fide security interest to a secured
party. Any transferees of such shares, Units or other securities will be
likewise prohibited from making any transfer of shares, Units or other
securities.
(h) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company and
the Operating Partnership contained herein and the statements in any
certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery and, at
the relevant Date of Delivery, the Representatives shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the Operating
Partnership and of the chief financial or chief accounting officer
of each such entity confirming that their respective certificates
delivered at Closing Time pursuant to Section 5(c) hereof remain
true and correct as of such Date of Delivery.
(2) The favorable opinion of Bose McKinney & Evans, counsel
for the Company, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(1) hereof.
(3) The favorable opinion of Rogers & Wells, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b)(2) hereof.
(4) A letter from KPMG Peat Marwick, in form and substance
satisfactory to the Representatives and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Representatives pursuant to Section 5(e) hereof, except that
the "specified date" in the letter furnished pursuant to this
Section 5(h)(4) shall be a date not more than five days prior to
such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
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SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Merrill Lynch expressly for use in
the Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever for which indemnification is provided under subsection
(i) above if such settlement is effected with the written consent of the
indemnifying party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever for which indemnification is provided under
subsection (i) above, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Operating Partnership and each person, if any, who controls the
Company and the Operating Partnership within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
reasonably approved by the indemnified parties defendant in such action, unless
such indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an indemnifying
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party assumes the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company and the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Company and the Operating Partnership, on the one hand, and the Underwriters, on
the other hand, (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Operating Partnership, on the one hand,
and the Underwriters, on the other, from the offering of the Underwritten
Securities, or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (a) above but also the relative
fault (as determined by a court of competent jurisdiction or a panel of
arbitration) of the Company and the Operating Partnership, on the one hand, and
the Underwriters, on the other, in connection with the statements or omissions
that resulted in such losses, liabilities, claims, damages, and expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Operating Partnership, on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportions as the
total gross proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discount received by the
Underwriters. The relative fault of the Company and the Operating Partnership,
on the one hand, and the Underwriters, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company and the Operating Partnership, on the one
hand, or by the Underwriters, on the other, and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
The parties agree that it would not be just or equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 7 are
several in proportion to their respective underwriting commitments and not
joint. For purposes of this Section 7, the Company and the Operating
Partnership shall be deemed one party and jointly and severally liable for any
obligations hereunder. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act, and
any director, officer, employee or affiliate of an Underwriter or such
controlling person, shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the 1933 Act, or any director,
officer, employee or affiliate of the Company or the Operating Partnership or
such controlling person, shall have the same rights to contribution as the
Company or the Operating Partnership.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of the
officers of the Company or the Operating Partnership submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination of the applicable Terms Agreement, or any
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investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or the Operating Partnership and shall survive
delivery of the Underwritten Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable Terms Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the date of such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change, affecting the Duke Group as a whole, in the condition, financial or
otherwise, or in the earnings, assets, business affairs or business prospects of
any entity belonging to the Duke Group or of any Property, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or
internationally or any outbreak of hostilities or escalation of existing
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States or internationally is such as to make it, in the
judgment of the Representatives, impracticable to market the Underwritten
Securities or to enforce contracts for the sale of the Underwritten Securities,
or (iii) if trading in the Common Stock has been suspended by the Commission or
if trading generally on either the New York Stock Exchange or the American Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said Exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York or Indiana authorities, or (iv) if Preferred Stock is being offered and the
rating assigned by any nationally recognized statistical rating organization to
any preferred shares of beneficial interest of the Company as of the date of the
applicable Terms Agreement shall have been lowered since such date or if any
such rating organization shall have publicly announced that it has placed any
preferred shares of beneficial interest or debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(a), the term "Prospectus" means the Prospectus in the form first
used to confirm sales of the Underwritten Securities.
(b) In the event of any such termination, in respect to such terminated
Terms Agreement the covenant set forth in Section 3(i) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in
Sections 6 and 7 hereof, and the provisions of Sections 8 and 13 hereof shall
remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the Underwritten Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms Agreement,
the applicable Terms Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
23
<PAGE>
In the event of any such default which does not result in a termination of
the applicable Terms Agreement, each of the Representatives or the Company shall
have the right to postpone Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Merrill Lynch & Co.,
Merrill Lynch, Pierce Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1201,
attention of Martin J. Cicco; notices to the Company and the Operating
Partnership shall be directed to any of them at 8888 Keystone Crossing, Suite
1200, Indianapolis, Indiana, 46240, attention of Darell E. Zink, Jr.
SECTION 12. PARTIES. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement
or the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or the applicable Terms Agreement
or any provision herein or therein contained. This Agreement and the applicable
Terms Agreement and all conditions and provisions hereof and thereof are
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
24
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters, the Company and the Operating Partnership in accordance with
its terms.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ DARELL E. ZINK, JR.
--------------------------------------
Title: Executive Vice President
and Chief Financial Officer
---------------------------------
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc,
General Partner
By: /s/ DARELL E. ZINK, JR.
--------------------------------
Title: Executive Vice President
and Chief Financial Officer
---------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ MARTIN J. CICCO
------------------------------------
Authorized Signatory
25
<PAGE>
Exhibit A
DUKE REALTY INVESTMENTS, INC.
(an Indiana Corporation)
[Number and Title of Securities]
TERMS AGREEMENT
Dated: , 199
To: Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Dear Sirs:
We (the "Representatives") understand that Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell [__________]
of its [shares of common stock (the "Common Stock")] [preferred stock (the
"Preferred Stock")] (such [Common Stock] and [Preferred Stock] being
collectively hereinafter referred to as the "Underwritten Securities"). Subject
to the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the respective numbers of Initial Underwritten Securities (as
defined in the Underwriting Agreement referred to below) set forth below
opposite their respective names, and a proportionate share of Option Securities
(as defined in the Underwriting Agreement referred to below) to the extent any
are purchased, at the purchase price set forth below.
A-1
<PAGE>
[Number of Shares]
[Principal Amount]
Of Initial
Underwriter Underwritten Securities
----------- -----------------------
__________
Total $__________
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any, from
, 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc.-Common Stock and Preferred Stock
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined.
A-2
<PAGE>
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
[OTHER REPRESENTATIVES]
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------------
For themselves and as Representatives of
the other named Underwriters.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:__________________________
Name:
Title:
A-3
<PAGE>
EXHIBIT 99
September 21, 1994
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Re: Duke Realty Investments, Inc. - Prospectus Supplement
Dated September 21, 1994
-----------------------------------------------------
Gentlemen:
We have acted as special tax counsel to Duke Realty Investments, Inc.
(the "Company") with respect to the preparation of a Shelf Registration
Statement and Prospectus Supplement filed with the Securities and Exchange
Commission on August 10, 1994 and September 2, 1994 respectively, both as
amended to the date hereof. In connection therewith, you have requested our
opinion with respect to the Company's continued qualification as a real estate
investment trust ("REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"). All capitalized terms used herein have their respective meanings
as set forth in the Shelf Registration Statement and Prospectus Supplement
unless otherwise stated. The Company is an Indiana corporation which has
qualified as a real estate investment trust ("REIT"), within the meaning of
Section 856(a) of the Code, for each of its taxable years from and including the
first taxable year for which it made an election to be taxed as a REIT, and
intends to continue to so qualify.
In rendering the opinion stated below, we have examined and relied,
with your consent, upon the following:
(i) The Initial Prospectus of the Company, dated September 27,
1993, the Shelf Registration Statement and the Prospectus Supplement, and all
amendments thereof to date;
(ii) The First Amended and Restated Agreement of Limited
Partnership of the Operating Partnership;
(iii) The First Amended and Restated Agreement of Limited
Partnership of the Services Partnership;
<PAGE>
(iv) Such other documents, records and instruments as we have
deemed necessary in order to enable us to render the opinion referred to in this
letter.
In our examination of the foregoing documents, we have assumed, with
your consent, that (i) all documents reviewed by us are original documents, or
true and accurate copies of original documents, and have not been subsequently
amended, (ii) the signatures on each original document are genuine, (iii) each
party who executed the document had proper authority and capacity, (iv) all
representations and statements set forth in such documents are true and correct,
(v) all obligations imposed by any such documents on the parties thereto have
been or will be performed or satisfied in accordance with their terms and (vi)
the Company, the Operating Partnership and the Services Partnership at all times
will be organized and operated in accordance with the terms of such documents.
We have further assumed the accuracy of the statements and descriptions of the
Company's, the Operating Partnership's and the Services Partnership's intended
activities as described in the Initial Prospectus, the Shelf Registration
Statement and the Prospectus Supplement.
For purposes of rendering the opinion stated below, we have also
assumed, with your consent, the accuracy of the representations contained in the
Certificate of Representations dated September 21, 1994 provided to us by the
Company, the Operating Partnership and the Services Partnership. These
representations generally relate to the classification and operation of the
Company as a REIT and the organization and operation of the Operating
Partnership and the Services Partnership. Our opinion is further conditioned
upon either (a) the Company's receipt of a ruling letter from the Internal
Revenue Service ("IRS") which concludes that either (i) the allocations of gross
income of the Services Partnership will be respected for purposes of determining
the gross income of the Operating Partnership and the Company from sources other
than those listed in Section 856(c) (2) and (3) of the Code, or (ii) the
Company's and the Operating Partnership's distributive shares of the gross
income of the Services Partnership will be in proportion to their respective
percentage shares of the capital interests of the partners of the Services
Partnership or (b) if the foregoing IRS ruling is not obtained, the Company
taking any steps necessary, including the possibility of having the Operating
Partnership return a portion of the income and cash received from the Services
Partnership to DMI, to ensure that the Operating Partnership's and DSI's pro-
rata share of the gross income of the Services
2
<PAGE>
Partnership, based on their shares of net income of the Services Partnership,
for no taxable year will be in excess of 4.5% of the gross income of the
Operating Partnership.
Based upon and subject to the foregoing, we are of the opinion that
assuming the Company was organized in conformity with and has satisfied the
requirements for qualification and taxation as a REIT under the Code for each of
its taxable years from and including the first taxable year for which the
Company made the election to be taxed as a REIT, the proposed methods of
operation of the Company, the Operating Partnership and the Services Partnership
as described in the Shelf Registration and Prospectus Supplement and as
represented by the Company, the Operating Partnership and the Services
Partnership will permit the Company to continue to qualify to be taxed as a REIT
for its current and subsequent taxable years.
The opinion set forth in this letter represents our conclusion as to
the application of federal income tax laws existing as of the date of this
letter to the transactions described herein. We can give no assurance that
legislative enactments, administrative changes or court decisions may not be
forthcoming that would modify or supersede our opinions. Moreover, there can be
no assurance that positions contrary to our opinions will not be taken by the
IRS, or that a court considering the issues would not hold contrary to such
opinions. Further, the opinion set forth above represents our conclusion based
upon the documents, facts and representations referred to above. Any material
amendments to such documents, changes in any significant facts or inaccuracy of
such representations could affect the opinions referred to herein. Although we
have made such inquiries and performed such investigations as we have deemed
necessary to fulfill our professional responsibilities as special tax counsel,
we have not undertaken an independent investigation of the facts referred to in
this letter.
We express no opinion as to any federal income tax issue or other
matter except those set forth or confirmed above.
Very truly yours,
/s/ Rogers & Wells
