<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 28, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DUKE REALTY INVESTMENTS, INC.
AND DUKE REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DUKE REALTY INVESTMENTS, INC. -- INDIANA DUKE REALTY INVESTMENTS, INC. -- 35-1740409
DUKE REALTY LIMITED PARTNERSHIP -- INDIANA DUKE REALTY LIMITED PARTNERSHIP -- 35-1898425
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
</TABLE>
8888 KEYSTONE CROSSING
SUITE 1200
INDIANAPOLIS, INDIANA 46240
(317) 574-3531
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
THOMAS L. HEFNER
8888 KEYSTONE CROSSING
SUITE 1200
INDIANAPOLIS, INDIANA 46240
(317) 574-3531
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
<TABLE>
<S> <C>
DAVID A. BUTCHER, ESQ. ROBERT E. KING, JR., ESQ.
BOSE MCKINNEY & EVANS ROGERS & WELLS
135 NORTH PENNSYLVANIA STREET, SUITE 2700 200 PARK AVENUE
INDIANAPOLIS, INDIANA 46204 NEW YORK, NEW YORK 10166
(317) 684-5000 (212) 878-8000
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED (1) OFFERING PRICE (2) REGISTRATION FEE
<S> <C> <C>
Common Stock, $.01 par value...................................................
Preferred Stock, $.01 par value................................................
Depositary Shares..............................................................
Debt Securities................................................................
Guarantees (3).................................................................
Total........................................................................ $360,000,000 $124,137.93
</TABLE>
(1) This Registration Statement also covers contracts which may be issued by the
Registrants under which the counterparty may be required to purchase Debt
Securities, Preferred Stock, Depositary Shares or Common Stock covered
hereby.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Debt Securities issued by Duke Realty Limited Partnership may be accompanied
by a Guaranty to be issued by Duke Realty Investments, Inc. None of the
proceeds will be received by Duke Realty Investments, Inc. for the
Guarantees.
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 28, 1995
PROSPECTUS
$360,000,000
DUKE REALTY INVESTMENTS, INC.
COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES AND GUARANTEES
DUKE REALTY LIMITED PARTNERSHIP
DEBT SECURITIES
Duke Realty Investments, Inc. (the "Company") may from time to time offer in
one or more series (i) shares of Common Stock, $.01 par value ("Common Stock"),
(ii) shares of preferred stock, $.01 par value ("Preferred Stock"), (iii) shares
of Preferred Stock represented by depositary shares (the "Depositary Shares")
and (iv) unconditional and irrevocable guarantees ("Guarantees") of unsecured
debt securities ("Debt Securities") issued by Duke Realty Limited Partnership
(the "Operating Partnership"), with an aggregate public offering price of up to
$360,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale) in amounts, at prices and on terms to be determined at the
time of offering. The Operating Partnership may from time to time offer in one
or more series unsecured Debt Securities. If any Debt Securities are rated below
investment grade at the time of issuance, such Debt Securities will be
guaranteed by the Company. The Common Stock, Preferred Stock, Depositary Shares,
Guarantees and Debt Securities, (collectively, the "Securities") may be offered,
separately or together, in separate series in amounts, at prices and on terms to
be set forth in one or more supplements to this Prospectus (each a "Prospectus
Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable: (i) in the case of Common Stock, any initial
public offering price or, if applicable, information regarding the exchange of
units of partnership interest ("Units") of the Operating Partnership for Common
Stock; (ii) in the case of Preferred Stock, the specific title and stated value,
any dividend, liquidation, redemption, conversion, voting and other rights, and
any initial public offering price; (iii) in the case of Depositary Shares, the
fractional share of Preferred Stock represented by each such Depositary Share;
and (iv) in the case of Debt Securities, the specific title, aggregate principal
amount, currency, form (which may be registered or bearer, or certificated or
global), authorized denominations, maturity, rate (or manner of calculation
thereof) and time of payment of interest, terms for redemption at the option of
the Operating Partnership or repayment at the option of the holder, terms for
sinking fund payments, covenants, applicability of any Guarantees and any
initial public offering price. In addition, such specific terms may include
limitations on direct or beneficial ownership and restrictions on transfer of
the Securities, in each case as may be appropriate to preserve the status of the
Company as a real estate investment trust ("REIT") for federal income tax
purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities covered
by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by the Company or the Operating Partnership, or to or through
underwriters or dealers. If any agents or underwriters are involved in the sale
of any of the Securities, their names, and any applicable purchase price, fee,
commission or discount arrangement between or among them, will be set forth, or
will be calculable from the information set forth, in an accompanying Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of a Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is , 1995.
<PAGE>
AVAILABLE INFORMATION
The Company and the Operating Partnership are subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, the Company files reports, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"), and the Operating Partnership files reports with the Commission.
Such reports, proxy statements and other information can be inspected and copied
at the Public Reference Section maintained by the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549; Chicago Regional Office, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and New York Regional
Office, 7 World Trade Center, New York, New York 10048. Such reports, proxy
statements and other information concerning the Company can also be inspected at
the offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
The Company and the Operating Partnership will provide without charge to
each person to whom a copy of this Prospectus is delivered, upon their written
or oral request, a copy of any or all of the documents incorporated herein by
reference (other than exhibits to such documents). Written requests for such
copies should be addressed to 8888 Keystone Crossing, Suite 1200, Indianapolis,
Indiana 46240, Attn: Investor Relations, telephone number (317) 574-3531.
The Company and the Operating Partnership have filed with the Commission a
registration statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933 as amended (the "Securities Act"), with respect to the
Securities offered hereby. For further information with respect to the Company,
the Operating Partnership and the Securities offered hereby, reference is made
to the Registration Statement and exhibits thereto. Statements contained in this
Prospectus as to the contents of any contract or other documents are not
necessarily complete, and in each instance, reference is made to the copy of
such contract or documents filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company under the Exchange Act with the
Commission are incorporated in this Prospectus by reference and are made a part
hereof:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1994.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995.
3. The Company's Current Reports on Form 8-K dated May 15, 1995, June 6,
1995 and July 27, 1995.
Each document filed by the Company or the Operating Partnership subsequent
to the date of this Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act and prior to termination of the offering of all Securities to
which this Prospectus relates shall be deemed to be incorporated by reference in
this Prospectus and shall be part hereof from the date of filing of such
document. Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus (in the case of a statement in a previously-filed
document incorporated or deemed to be incorporated by reference herein), in any
accompanying Prospectus Supplement relating to a specific offering of Securities
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated by reference herein, modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus or any
accompanying Prospectus Supplement. Subject to the foregoing, all information
appearing in this Prospectus and each accompanying Prospectus Supplement is
qualified in its entirety by the information appearing in the documents
incorporated by reference.
2
<PAGE>
THE COMPANY AND THE OPERATING PARTNERSHIP
The Company is a self-administered and self-managed real estate investment
trust that began operations through a predecessor in 1972. At June 30, 1995, the
Company owned direct or indirect interests in a portfolio of 144 in-service
industrial, office and retail properties (the "Properties"), together with
approximately 900 acres of land (the "Land") for future development. The
Properties consist of industrial, office and retail properties, located in
Indiana, Ohio, Illinois, Kentucky, Michigan, Missouri, Tennessee and Wisconsin.
As of June 30, 1995, the Properties consisted of approximately 15.2 million
square feet, which were approximately 95.3% leased to approximately 1,200
tenants.
All of the Company's interests in the Properties and Land are held by, and
substantially all of its operations relating to the Properties and Land are
conducted through, the Operating Partnership. The Operating Partnership holds a
100% interest in all but 21 of the Properties and substantially all of the Land.
The Company controls the Operating Partnership as the sole general partner and
owner, as of June 30, 1995, of approximately 85.29% of the outstanding Units.
Each Unit may be exchanged by the holder thereof for one share (subject to
certain adjustments) of the Common Stock. With each such exchange, the number of
Units owned by the Company and, therefore, the Company's percentage interest in
the Operating Partnership, will increase.
In addition to owning the Properties and the Land, the Operating Partnership
also provides services associated with leasing, property management, real estate
development, construction and miscellaneous tenant services (the "Related
Businesses") for the Properties. The Company also provides services associated
with the Related Businesses to third parties and owners of indirectly owned
Properties through Duke Realty Services Limited Partnership on a fee basis.
The Company's experienced staff provides a full range of real estate
services from executive offices headquartered in Indianapolis, and from six
regional offices located in the Cincinnati, Columbus, Decatur, Detroit,
Nashville and St. Louis metropolitan areas.
The Company is an Indiana corporation that was originally incorporated in
the State of Delaware in 1985, and reincorporated in the State of Indiana in
1992. The Operating Partnership is an Indiana limited partnership that was
formed in 1993. The Company's and the Operating Partnership's executive offices
are located at 8888 Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240,
and their telephone number is (317) 574-3531.
USE OF PROCEEDS
The Company is required, by the terms of the partnership agreement of the
Operating Partnership, to invest the net proceeds of any sale of Common Stock,
Preferred Stock or Depositary Shares in the Operating Partnership in exchange
for additional Units or preferred Units, as the case may be. Unless otherwise
specified in the applicable Prospectus Supplement, the Company and the Operating
Partnership intend to use the net proceeds from the sale of Securities for
general corporate purposes, including the development and acquisition of
additional properties and other acquisition transactions, the payment of certain
outstanding debt, and improvements to certain properties in the Company's
portfolio.
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's and the Operating Partnership's ratios of earnings to fixed
charges for the six months ended June 30, 1995 were 2.48 and for the year ended
December 31, 1994 were 2.33. The ratio of earnings to fixed charges for the
Company for the year ended December 31, 1993 was 1.58, and for the Operating
Partnership from its formation on October 4, 1993 to December 31, 1993 was 2.51.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges, excluding capitalized interest, to income (loss) before
gains or losses on property sales and (if applicable) minority interest in the
Operating Partnership. Fixed charges consist (if applicable) of interest costs,
whether expensed or capitalized, the interest component of rental expense and
amortization of debt issuance costs.
3
<PAGE>
Prior to completion of the Company's reorganization in October, 1993, the
Company operated in a highly leveraged manner. As a result, although the
original properties have historically generated positive net cash flow, the
financial statements of the Company show net losses for the fiscal years ended
December 31, 1992, 1991 and 1990. Consequently, the computation of the ratio of
earnings to fixed charges for such periods indicates that earnings were
inadequate to cover fixed charges by approximately $0.7 million, $1.8 million
and $1.7 million for the fiscal years ended December 31, 1992, 1991 and 1990,
respectively.
The recapitalization of the Company effected in connection with the
reorganization permitted the Company to significantly deleverage, resulting in
an improved ratio of earnings to fixed charges for periods subsequent to the
reorganization.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under one or more indentures (an
"Indenture"), in each case among the Operating Partnership, the Company, as
guarantor (if applicable), and a trustee (a "Trustee"). The Indentures will be
subject to, and governed by, the Trust Indenture Act of 1939, as amended (the
"TIA"). The statements made hereunder relating to any Indenture and the Debt
Securities to be issued thereunder are summaries of the anticipated provisions
thereof and do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all provisions of the Indentures and such
Debt Securities.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Operating
Partnership and will either rank equally with all other unsecured and
unsubordinated indebtedness of the Operating Partnership ("Senior Securities")
or, if provided in the applicable Prospectus Supplement, be subordinated in
right of payment to the prior payment in full of the Senior Debt (as defined
below) of the Operating Partnership as described under "-- Subordination"
("Subordinated Securities"). The Debt Securities may be issued without limit as
to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company as sole general partner of
the Operating Partnership or as established in one or more indentures
supplemental to the applicable Indenture. All Debt Securities of one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series.
If any Debt Securities issued by the Operating Partnership are rated below
investment grade at the time of issuance, such Debt Securities will be
unconditionally guaranteed by the Company as to payment of principal, premium,
if any, and interest.
It is anticipated that any Indenture will provide that there may be more
than one Trustee thereunder, each with respect to one or more series of Debt
Securities. Any Trustee under an Indenture may resign or be removed with respect
to one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series. In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a trustee of a trust under the applicable
Indenture separate and apart from the trust administered by any other Trustee,
and, except as otherwise indicated herein, any action described herein to be
taken by a Trustee may be taken by each such Trustee with respect to, and only
with respect to, the one or more series of Debt Securities for which it is
Trustee under the applicable Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, and of the
Guarantee, if any, relating to such Debt Securities, including:
(1) the title of such Debt Securities, whether such Debt Securities are
Senior Securities or Subordinated Securities and whether such Debt
Securities are guaranteed by a Guarantee;
(2) the aggregate principal amount of such Debt Securities and any limit on
such aggregate principal amount;
4
<PAGE>
(3) the percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(4) the date or dates, or the method for determining such date or dates, on
which the principal of such Debt Securities will be payable;
(5) the rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such Debt
Securities will bear interest, if any;
(6) the date or dates, or the method for determining such date or dates,
from which any interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment
dates, or the method by which any such date shall be determined, the
person to whom such interest shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(7) the place or places where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, such Debt
Securities may be surrendered for registration of transfer or exchange
and notices or demands to or upon the Operating Partnership and the
Company in respect of such Debt Securities, any applicable Guarantees
and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices at which and the
terms and conditions upon which such Debt Securities may be redeemed, as
a whole or in part, at the option of the Operating Partnership, if the
Operating Partnership is to have such an option;
(9) the obligation, if any, of the Operating Partnership to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) if other than U.S. dollars, the currency or currencies in which such
Debt Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating thereto;
(11) whether the amount of payments of principal of (and premium, if any) or
interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on a currency, currencies, currency
unit or units or composite currency or currencies) and the manner in
which such amounts shall be determined;
(12) the events of default or covenants of such Debt Securities, to the
extent different from or in addition to those described herein;
(13) whether such Debt Securities will be issued in certificated and/or
book-entry form;
(14) whether such Debt Securities will be in registered or bearer form and,
if in registered form, the denominations thereof if other than $1,000
and any integral multiple thereof and, if in bearer form, the
denominations thereof if other than $5,000 and terms and conditions
relating thereto;
(15) the applicability, if any, of the defeasance and covenant defeasance
provisions described herein, or any modification thereof;
(16) if such Debt Securities are to be issued upon the exercise of debt
warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered;
5
<PAGE>
(17) whether and under what circumstances the Operating Partnership will pay
additional amounts on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Operating
Partnership will have the option to redeem such Debt Securities in lieu
of making such payment; and
(18) any other terms of such Debt Securities.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). If material or applicable, special U.S.
federal income tax, accounting and other considerations applicable to Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Except as described under "Merger, Consolidation or Sale" or as may be set
forth in any Prospectus Supplement, an Indenture will not contain any other
provisions that would limit the ability of either the Operating Partnership or
the Company to incur indebtedness or that would afford holders of the Debt
Securities protection in the event of (i) a highly leveraged or similar
transaction involving the Operating Partnership or the Company, the management
of the Operating Partnership or the Company, or any affiliate of any such party,
(ii) a change of control, or (iii) a reorganization, restructuring, merger or
similar transaction involving the Operating Partnership or the Company that may
adversely affect the holders of the Debt Securities. In addition, subject to the
limitations set forth under "Merger, Consolidation or Sale," the Operating
Partnership or the Company may, in the future, enter into certain transactions,
such as the sale of all or substantially all of its assets or the merger or
consolidation of the Operating Partnership or the Company, that would increase
the amount of the Operating Partnership's or the Company's indebtedness or
substantially reduce or eliminate the Operating Partnership's assets, which may
have an adverse effect on the Operating Partnership's ability to service its
indebtedness, including the Debt Securities. In addition, restrictions on
ownership and transfers of the Company's common stock and preferred stock are
designed to preserve its status as a REIT and, therefore, may act to prevent or
hinder a change of control. See "Description of Common Stock -- Certain
Provisions Affecting Change of Control" and "Description of Preferred Stock --
Restrictions on Ownership." Reference is made to the applicable Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the events of default or covenants that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
GUARANTEES
If the Operating Partnership issues any Debt Securities that are rated below
investment grade at the time of issuance, the Company will unconditionally and
irrevocably guarantee, on a senior or subordinated basis, the due and punctual
payment of principal of, premium, if any, and interest on such Debt Securities,
and the due and punctual payment of any sinking fund payments thereon, when and
as the same shall become due and payable, whether at a maturity date, by
declaration of acceleration, call for redemption or otherwise. See "--
Subordination." The applicability and terms of any such Guarantee relating to a
series of Debt Securities will be set forth in the Prospectus Supplement
relating to such Debt Securities.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the Debt
Securities of any series which are registered securities, other than registered
securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Debt Securities which are bearer securities, other than bearer securities issued
in global form (which may be of any denomination), shall be issuable in
denominations of $5,000.
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, the address of
which will be stated in the applicable Prospectus Supplement, provided that, at
the option of
6
<PAGE>
the Operating Partnership, payment of interest may be made by check mailed to
the address of the person entitled thereto as it appears in the applicable
register for such Debt Securities or by wire transfer of funds to such person at
an account maintained within the United States.
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the holder on the applicable regular record
date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the applicable
Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the Trustee referred to above.
In addition, subject to certain limitations imposed upon Debt Securities issued
in book-entry form, the Debt Securities of any series may be surrendered for
registration of transfer thereof at the corporate trust office of the Trustee
referred to above. Every Debt Security surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer. No service charge will be made for any registration of transfer or
exchange of any Debt Securities, but the Trustee or the Operating Partnership
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Trustee) initially designated
by the Operating Partnership with respect to any series of Debt Securities, the
Operating Partnership may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts, except that Operating Partnership will be required to
maintain a transfer agent in each place of payment for such series. The
Operating Partnership may at any time designate additional transfer agents with
respect to any series of Debt Securities.
Neither the Operating Partnership nor the Trustee shall be required (i) to
issue, register the transfer of or exchange any Debt Security if such Debt
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Debt Securities to be
redeemed and ending at the close of business on (A) if such Debt Securities are
issuable only as registered securities, the day of the mailing of the relevant
notice of redemption and (B) if such Debt Securities are issuable as bearer
securities, the day of the first publication of the relevant notice of
redemption or, if such Debt Securities are also issuable as registered
securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any registered
security so selected for redemption in whole or in part, except, in the case of
any registered security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any bearer security so selected for redemption
except that such a bearer security may be exchanged for a registered security of
that series and like tenor, PROVIDED that such registered security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the holder, except the portion, if any, of such Debt Security not
to be so repaid.
MERGER, CONSOLIDATION OR SALE
Either the Operating Partnership or the Company may consolidate with, or
sell, lease or convey all or substantially all of its assets to, or merge with
or into, any other entity, provided that (a) either the Operating Partnership or
the Company, as the case may be, shall be the continuing entity, or the
successor entity (if other than the Operating Partnership or the Company, as the
case may be) formed by or resulting from any such consolidation or merger or
which shall have received the transfer of such assets shall expressly assume
payment of the principal of (and premium, if any) and interest on all the Debt
Securities and the due and punctual performance and observance of all of the
covenants and conditions contained in the applicable Indenture; (b) immediately
after giving effect to such transaction and treating any indebtedness which
7
<PAGE>
becomes an obligation of the Operating Partnership, the Company or any
subsidiary as a result thereof as having been incurred by the Operating
Partnership, the Company or such subsidiary at the time of such transaction, no
event of default under the Indentures, and no event which, after notice or the
lapse of time, or both, would become such an event of default, shall have
occurred and be continuing; and (c) an officer's certificate and legal opinion
covering such conditions shall be delivered to the Trustee.
CERTAIN COVENANTS
EXISTENCE. Except as permitted under "Merger, Consolidation or Sale," each
of the Operating Partnership and the Company (if the Company has guaranteed any
Debt Securities) will be required to do or cause to be done all things necessary
to preserve and keep in full force and effect its existence, rights and
franchises; PROVIDED, HOWEVER, that each of the Operating Partnership and the
Company shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of its business and that the loss thereof is not disadvantageous in any material
respect to the holders of the Debt Securities.
MAINTENANCE OF PROPERTIES. Each of the Operating Partnership and the
Company (if the Company has guaranteed any Debt Securities) will be required to
cause all of its material properties used or useful in the conduct of its
business or the business of any subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and to cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Operating
Partnership or the Company, as the case may be, may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; PROVIDED, HOWEVER, that the Company, the Operating
Partnership and their subsidiaries shall not be prevented from selling or
otherwise disposing for value their respective properties in the ordinary course
of business.
INSURANCE. Each of the Operating Partnership and the Company (if the
Company has guaranteed any Debt Securities) will be required to, and will be
required to cause each of its subsidiaries to, keep all of its insurable
properties insured against loss or damage at least equal to their then full
insurable value with insurers of recognized responsibility and, if described in
the applicable Prospectus Supplement, having a specified rating from a
recognized insurance rating service.
PAYMENT OF TAXES AND OTHER CLAIMS. The Operating Partnership or the Company
(if the Company has guaranteed any Debt Securities), as the case may be, will be
required to pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (i) all taxes, assessments and governmental charges
levied or imposed upon it or any subsidiary or upon its income, profits or
property or that of any subsidiary, and (ii) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Operating Partnership, the Company or any subsidiary; PROVIDED,
HOWEVER, that the Operating Partnership or the Company, as the case may be,
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
PROVISION OF FINANCIAL INFORMATION. The holders of Debt Securities whose
names appear in the security register for such Debt Securities (the "Holders")
will be provided with copies of the annual reports and quarterly reports of the
Operating Partnership. Whether or not the Operating Partnership is subject to
Section 13 or 15(d) of the Exchange Act and for so long as any Debt Securities
are outstanding, the Operating Partnership will, to the extent permitted under
the Exchange Act, be required to file with the Commission the annual reports,
quarterly reports and other documents which the Operating Partnership would have
been required to file with the Commission pursuant to such Section 13 or 15(d)
(the "Financial Statements") if the Operating Partnership were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Operating Partnership would have been
required so to file such documents if the Operating Partnership were so subject.
The Operating Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders of Debt Securities, as
their names and addresses appear in the security register for such Debt
8
<PAGE>
Securities, without cost to such Holders, copies of the annual reports and
quarterly reports which the Operating Partnership would have been required to
file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if
the Operating Partnership were subject to such Sections and (ii) file with any
Trustee copies of the annual reports, quarterly reports and other documents
which the Operating Partnership would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if the Operating
Partnership were subject to such Sections and (y) if filing such documents by
the Operating Partnership with the Commission is not permitted under the
Exchange Act, promptly upon written request and payment of the reasonable cost
of duplication and delivery, supply copies of such documents to any prospective
holder.
ADDITIONAL COVENANTS. Any additional or different covenants of the Company
or the Operating Partnership with respect to any series of Debt Securities will
be set forth in the Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (a)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (b) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its maturity; (c)
default in making any sinking fund payment as required for any Debt Security of
such series; (d) default in the performance of any other covenant of the
Operating Partnership or the Company contained in the applicable Indenture
(other than a covenant added to such Indenture solely for the benefit of a
series of Debt Securities issued thereunder other than such series), such
default having continued for 60 days after written notice as provided in such
Indenture; (e) default in the payment of an aggregate principal amount exceeding
a specified amount of any evidence of indebtedness of the Operating Partnership
or the Company (if the Company has guaranteed any Debt Securities under such
Indenture) or any mortgage, indenture or other instrument under which such
indebtedness is issued or by which such indebtedness is secured, such default
having occurred after the expiration of any applicable grace period and having
resulted in the acceleration of the maturity of such indebtedness, but only if
such indebtedness is not discharged or such acceleration is not rescinded or
annulled; (f) certain events of bankruptcy, insolvency or reorganization, or
court appointment of a receiver, liquidator or trustee of the Operating
Partnership, the Company (if the Company has guaranteed any Debt Securities
under such Indenture) or any Significant Subsidiary or any of their respective
property; and (g) any other event of default provided with respect to a
particular series of Debt Securities. The term "Significant Subsidiary" means
each significant subsidiary (as defined in Regulation S-X promulgated under the
Securities Act) of the Company or the Operating Partnership, as the case may be.
If an event of default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Trustee or the holders of not less than 25% in
principal amount of the outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities or indexed securities, such portion of the principal
amount as may be specified in the terms thereof) of all of the Debt Securities
of that series to be due and payable immediately by written notice thereof to
the Company (if the Company has guaranteed any Debt Securities under such
Indenture) and the Operating Partnership (and to the applicable Trustee if given
by the holders). However, at any time after such a declaration of acceleration
with respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the holders of not less than a majority in principal amount
of outstanding Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) the Operating Partnership
shall have deposited with the applicable Trustee all required payments of the
principal of (and premium, if any) and interest on the Debt Securities of such
series (or of all Debt Securities then outstanding under any Indenture, as the
case may be), plus certain fees, expenses, disbursements and advances of the
applicable
9
<PAGE>
Trustee and (b) all events of default, other than the non-payment of accelerated
principal of (or specified portion thereof), or premium (if any) or interest on
the Debt Securities of such series (or of all Debt Securities then outstanding
under the applicable Indenture, as the case may be) have been cured or waived as
provided in the Indenture. Any Indenture will also provide that the holders of
not less than a majority in principal amount of the outstanding Debt Securities
of any series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest on any Debt Security or such
series or (y) in respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended without the consent of the holder
of each outstanding Debt Security affected thereby.
Each Trustee will be required to give notice to the holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default has been cured or waived; PROVIDED, HOWEVER, that such Trustee may
withhold notice to the holders of any series of Debt Securities of any default
with respect to such series (except a default in the payment of the principal of
(or premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if specified responsible officers of such Trustee consider such
withholding to be in the interest of such holders.
Each Indenture will provide that no holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to the
applicable Indenture or for any remedy thereunder, except in the case of failure
of the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an event of default from the
holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of Debt
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Debt Securities at the respective
due dates thereof.
Subject to provisions in each Indenture relating to its duties in case of
default, no Trustee will be under any obligation to exercise any of its rights
or powers under an Indenture at the request or direction of any holders of any
series of Debt Securities then outstanding under such Indenture, unless such
holders shall have offered to the Trustee thereunder reasonable security or
indemnity. The holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under an Indenture, as the case may be) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the applicable Trustee, or of exercising any trust or power
conferred upon such Trustee. However, a Trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve such Trustee in personal liability or which may be unduly
prejudicial to the holders of Debt Securities of such series not joining
therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership and the Company (if the Company has guaranteed any Debt Securities
under the applicable Indenture) will be required to deliver to each Trustee a
certificate, signed by one of several specified officers of the Company, stating
whether or not such officer has knowledge of any default under the applicable
Indenture and, if so, specifying each such default and the nature and status
thereof.
MODIFICATION OF THE INDENTURES
Modifications and amendments of an Indenture will be permitted to be made
only with the consent of the holders of not less than a majority in principal
amount of all outstanding Debt Securities or series of outstanding Debt
Securities which are affected by such modification or amendment; PROVIDED,
HOWEVER, that no such modification or amendment may, without the consent of the
holder of each such Debt Security affected thereby, (a) change the stated
maturity of the principal of, or premium (if any) or any installment of interest
on, any such Debt Security; (b) reduce the principal amount of, or the rate or
amount of interest on, or any premium payable on redemption of, any such Debt
Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon declaration of acceleration of the
10
<PAGE>
maturity thereof or would be provable in bankruptcy, or adversely affect any
right of repayment of the holder of any such Debt Security; (c) change the place
of payment, or the coin or currency, for payment of principal of, premium, if
any, or interest on any such Debt Security; (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any such Debt
Security; (e) reduce the above-stated percentage of outstanding Debt Securities
of any series necessary to modify or amend the applicable Indenture, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in such
Indenture; or (f) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the holder of such Debt Security.
Each Indenture will provide that the holders of not less than a majority in
principal amount of a series of outstanding Debt Securities have the right to
waive compliance by the Operating Partnership or the Company with certain
covenants relating to such series of Debt Securities in the Indenture.
Modifications and amendments of an Indenture will be permitted to be made by
the Operating Partnership and the Company (if the Company has guaranteed any
Debt Securities thereunder) and the respective Trustee thereunder without the
consent of any holder of Debt Securities for any of the following purposes: (i)
to evidence the succession of another Person to the Operating Partnership as
obligor under such Indenture; (ii) to add to the covenants of the Operating
Partnership or the Company (if the Company has guaranteed any Debt Securities
thereunder) for the benefit of the holders of all or any series of Debt
Securities or to surrender any right or power conferred upon the Operating
Partnership or the Company in such Indenture; (iii) to add events of default for
the benefit of the holders of all or any series of Securities; (iv) to add or
change any provisions of an Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in bearer form, or to permit or
facilitate the issuance of Debt Securities in uncertificated form, PROVIDED that
such action shall not adversely affect the interests of the holders of the Debt
Securities of any series in any material respect; (v) to change or eliminate any
provisions of an Indenture, PROVIDED that any such change or elimination shall
become effective only when there are no Debt Securities outstanding of any
series created prior thereto which are entitled to the benefit of such
provision; (vi) to secure the Debt Securities; (vii) to establish the form or
terms of Debt Securities of any series; (viii) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under the Indenture by more than one Trustee; (ix) to cure any ambiguity,
defect or inconsistency in an Indenture, PROVIDED that such action shall not
adversely affect the interests of holders of Debt Securities of any series in
any material respect; or (x) to supplement any of the provisions of an Indenture
to the extent necessary to permit or facilitate defeasance and discharge of any
series of such Debt Securities or of any applicable Guarantees, PROVIDED that
such action shall not adversely affect the interests of the holders of the Debt
Securities of any series in any material respect.
Each Indenture will provide that in determining whether the holders of the
requisite principal amount of outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an indexed security that shall be deemed outstanding shall
be the principal face amount of such indexed security at original issuance,
unless otherwise provided with respect to such indexed security pursuant to such
Indenture, and (iv) Debt Securities owned by the Operating Partnership or any
other obligor upon the Debt Securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded.
11
<PAGE>
Each Indenture will contain provisions for convening meetings of the holders
of Debt Securities of a series. A meeting will be permitted to be called at any
time by the Trustee, and also, upon request, by the Operating Partnership or the
holders of at least 10% in principal amount of the outstanding Debt Securities
of such series, in any such case upon notice given as provided in such
Indenture. Except for any consent that must be given by the holder of each Debt
Security affected by certain modifications and amendments of an Indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened at which
a quorum is present will be permitted to be adopted by the affirmative vote of
the holders of a majority in principal amount of the outstanding Debt Securities
of that series; PROVIDED, HOWEVER, that, except as referred to above, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that may be made, given or taken by the
holders of a specified percentage, which is less than a majority, in principal
amount of the outstanding Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding Debt Securities
of a series; PROVIDED, HOWEVER, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the outstanding Debt
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such series
will constitute a quorum.
Notwithstanding the foregoing provisions, any Indenture will provide that if
any action is to be taken at a meeting of holders of Debt Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that such Indenture expressly provides may be
made, given or taken by the holders of a specified percentage in principal
amount of all outstanding Debt Securities affected thereby, or of the holders of
such series and one or more additional series: (i) there shall be no minimum
quorum requirement for such meeting and (ii) the principal amount of the
outstanding Debt Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under such Indenture.
SUBORDINATION
Upon any distribution to creditors of the Operating Partnership in a
liquidation, dissolution or reorganization, the payment of the principal of and
interest on any Subordinated Securities will be subordinated to the extent
provided in the applicable Indenture in right of payment to the prior payment in
full of all Senior Debt (as defined below), but the obligation of the Operating
Partnership to make payment of the principal and interest on such Subordinated
Securities will not otherwise be affected. No payment of principal or interest
will be permitted to be made on Subordinated Securities at any time if a default
on Senior Debt exists that permits the holders of such Senior Debt to accelerate
its maturity and the default is the subject of judicial proceedings or the
Operating Partnership receives notice of the default. By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Operating Partnership may recover more, ratably, than
holders of Subordinated Securities.
Unless otherwise specified in the applicable Prospectus Supplement, Senior
Debt will be defined in the applicable Indenture as the principal of and
interest on, or substantially similar payments to be made by the Operating
Partnership in respect of, the following, whether outstanding at the date of
execution of the applicable Indenture or thereafter incurred, created or
assumed: (a) indebtedness of the Operating Partnership for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Operating
Partnership evidenced by notes, debentures, or bonds, or other securities issued
under the provisions of an indenture, fiscal agency agreement or other
agreement, (c) obligations of the Operating Partnership as lessee under leases
of property either made as part of any sale and leaseback transaction to which
the
12
<PAGE>
Operating Partnership is a party or otherwise, (d) indebtedness of partnerships
and joint ventures which is included in the consolidated financial statements of
the Operating Partnership, (e) indebtedness, obligations and liabilities of
others in respect of which the Operating Partnership is liable contingently or
otherwise to pay or advance money or property or as guarantor, endorser or
otherwise or which the Operating Partnership has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Operating Partnership to fund any
real estate investment or to fund any investment in any entity making such real
estate investment, in each case other than (1) any such indebtedness, obligation
or liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Subordinated Securities or ranks PARI
PASSU with the Subordinated Securities, (2) any such indebtedness, obligation or
liability which is subordinated to indebtedness of the Operating Partnership to
substantially the same extent as or to a greater extent than the Subordinated
Securities are subordinated, and (3) the Subordinated Securities. There will not
be any restrictions in an Indenture relating to Subordinated Securities upon the
creation of additional Senior Debt.
If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Debt outstanding as of the end of the Operating Partnership's
most recent fiscal quarter.
In the event that Subordinated Securities are issued by the Operating
Partnership, any related Guarantees issued by the Company will be subordinate
and junior in right of payment to Senior Debt of the Company on substantially
the same terms and conditions as the obligations of the Operating Partnership
under such Subordinated Securities are subordinate and junior in right of
payment to Senior Debt.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Operating Partnership or the Company (if the Company has guaranteed any
Debt Securities under the applicable Indenture) may be permitted under the
applicable Indenture to discharge certain obligations to holders of any series
of Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in which
such Debt Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and premium, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the stated maturity or redemption date, as the
case may be.
An Indenture may provide that, if certain provisions thereof are made
applicable to the Debt Securities of or within any series pursuant to such
Indenture, each of the Operating Partnership and the Company (if the Company has
guaranteed any Debt Securities under the applicable Indenture) may elect either
(a) to defease and be discharged from any and all obligations with respect to
such Debt Securities (except for the obligation to pay additional amounts, if
any, upon the occurrence of certain events of tax, assessment or governmental
charge with respect to payments on such Debt Securities and the obligations to
register the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of such Debt Securities and to hold moneys for payment in
trust) ("defeasance") or (b) to be released from its obligations with respect to
such Debt Securities under certain sections, of such Indenture (including the
restrictions described under "Certain Covenants") and, if provided pursuant to
such Indenture, its obligations with respect to any other covenant, and any
omission to comply with such obligations shall not constitute a default or an
event of default with respect to such Debt Securities ("covenant defeasance"),
in either case upon the irrevocable deposit by the Operating Partnership or the
Company, as the case may be, with the Trustee, in trust, of an amount, in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable at stated maturity, or
Government Obligations (as defined below), or both, applicable
13
<PAGE>
to such Debt Securities which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Debt Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership or the Company, as the case may be, has
delivered to the Trustee an opinion of counsel (as specified in the applicable
Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such opinion of counsel, in the case of defeasance, must refer to
and be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
applicable Indenture.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the foreign
currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Operating Partnership or the Company, as the case may be, has deposited
funds and/or Government Obligations to effect defeasance or covenant defeasance
with respect to Debt Securities of any series, (a) the holder of a Debt Security
of such series is entitled to, and does, elect pursuant to the applicable
Indenture or the terms of such Debt Security to receive payment in a currency,
currency unit or composite currency other than that in which such deposit has
been made in respect of such Debt Security, or (b) a Conversion Event (as
defined below) occurs in respect of the currency, currency unit or composite
currency in which such deposit has been made, the indebtedness represented by
such Debt Security shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium, if any) and
interest on such Debt Security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt Security into the
currency, currency unit or composite currency in which such Debt Security
becomes payable as a result of such election or such Conversion Event based on
the applicable market exchange rate. "Conversion Event" means the cessation of
use of (i) a currency, currency unit or composite currency both by the
government of the country which issued such currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Community or (iii) any currency unit or composite currency
other than the ECU for the purposes for which it was established. Unless
otherwise provided in the applicable Prospectus Supplement, all payments of
principal of (and premium, if any) and interest on any Debt Security that is
payable in a foreign currency that ceases to be used by its government of
issuance shall be made in U.S. dollars.
14
<PAGE>
In the event the Operating Partnership or the Company, as the case may be,
effects covenant defeasance with respect to any Debt Securities and such Debt
Securities are declared due and payable because of the occurrence of any event
of default other than the event of default described in clause (d) under "Events
of Default, Notice and Waiver" with respect to specified sections of the
Indenture (which sections would no longer be applicable to such Debt Securities)
or described in clause (g) under "Events of Default, Notice and Waiver" with
respect to any other covenant as to which there has been covenant defeasance,
the amount in such currency, currency unit or composite currency in which such
Debt Securities are payable, and Government Obligations on deposit with the
applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their stated maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration resulting
from such event of default. However, the Operating Partnership and the Company
(if the Company has guaranteed such Debt Securities) would remain liable to make
payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
NO CONVERSION RIGHTS
The Debt Securities will not be convertible into or exchangeable for any
capital stock of the Company or equity interest in the Operating Partnership.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series.
DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 5,000,000 shares of preferred stock, $.01
par value per share, of which no Preferred Stock was outstanding at June 30,
1995.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's Amended and Restated Articles of
Incorporation (the "Articles of Incorporation") and Bylaws and any applicable
amendment to the Articles of Incorporation designating terms of a series of
Preferred Stock (a "Designating Amendment").
TERMS
Subject to the limitations prescribed by the Articles of Incorporation, the
board of directors is authorized to fix the number of shares constituting each
series of Preferred Stock and the designations and powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof, including such provisions as may be desired
concerning voting, redemption, dividends, dissolution or the distribution of
assets, conversion or exchange, and such other subjects or matters as may be
fixed by resolution of the board of directors. The Preferred Stock will, when
issued, be fully paid and nonassessable by the Company (except as described
under "-- Shareholder Liability" below) and will have no preemptive rights.
15
<PAGE>
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Stock;
(2) The number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall accumulate,
if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred Stock;
(7) The provision for redemption, if applicable, of such Preferred Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred Stock
will be convertible into Common Stock of the Company, including the
conversion price (or manner of calculation thereof);
(10) Whether interests in such Preferred Stock will be represented by
Depositary Shares;
(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(12) A discussion of federal income tax considerations applicable to such
Preferred Stock;
(13) The relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company;
(14) Any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up
of the affairs of the Company; and
(15) Any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of
the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred Stock
will, with respect to dividend rights and rights upon liquidation, dissolution
or winding up of the Company, rank (i) senior to all classes or series of Common
Stock of the Company, and to all equity securities ranking junior to such
Preferred Stock; (ii) on a parity with all equity securities issued by the
Company the terms of which specifically provide that such equity securities rank
on a parity with the Preferred Stock; and (iii) junior to all equity securities
issued by the Company the terms of which specifically provide that such equity
securities rank senior to the Preferred Stock. The term "equity securities" does
not include convertible debt securities.
DIVIDENDS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the board of directors of the Company, out of assets
of the Company legally available for payment, cash dividends at such rates and
on such dates as will be set forth in the applicable Prospectus Supplement. Each
such dividend shall be payable to holders of record as they appear on the share
transfer books of the Company on such record dates as shall be fixed by the
board of directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the board of directors of the Company fails
to declare a
16
<PAGE>
dividend payable on a dividend payment date on any series of the Preferred Stock
for which dividends are non-cumulative, then the holders of such series of the
Preferred Stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and the Company will have
no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
date.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company of
any other series ranking, as to dividends, on a parity with or junior to the
Preferred Stock of such series for any period unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series for all past dividend periods and the then current dividend period or
(ii) if such series of Preferred Stock does not have a cumulative dividend, full
dividends for the then current dividend period have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Preferred Stock of such series. When dividends
are not paid in full (or a sum sufficient for such full payment is not so set
apart) upon Preferred Stock of any series and the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Preferred Stock of
such series, all dividends declared upon Preferred Stock of such series and any
other series of Preferred Stock ranking on a parity as to dividends with such
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Preferred Stock of such series and such other series of
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Preferred Stock of such series (which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend) and such
other series of Preferred Stock bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current dividend
period, no dividends (other than in shares of Common Stock or other capital
shares ranking junior to the Preferred Stock of such series as to dividends and
upon liquidation) shall be declared or paid or set aside for payment or other
distribution shall be declared or made upon the Common Stock, or any other
capital shares of the Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or upon liquidation, nor shall
any shares of Common Stock, or any other capital shares of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to dividends
or upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such shares) by the Company (except by conversion into or
exchange for other capital shares of the Company ranking junior to the Preferred
Stock of such series as to dividends and upon liquidation).
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of the
Company, as a whole or in part, in each case upon the terms, at the times and at
the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be
17
<PAGE>
specified, together with an amount equal to all accrued and unpaid dividends
thereon (which shall not, if such Preferred Stock does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be payable
in cash or other property, as specified in the applicable Prospectus Supplement.
If the redemption price for Preferred Stock of any series is payable only from
the net proceeds of the issuance of capital shares of the Company, the terms of
such Preferred Stock may provide that, if no such capital shares shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into the applicable capital shares of
the Company pursuant to conversion provisions specified in the applicable
Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred Stock
has a cumulative dividend, full cumulative dividends on all shares of any series
of Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, and (ii) if such
series of Preferred Stock does not have a cumulative dividend, full dividends of
the Preferred Stock of any series have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
payment for the then current dividend period, no shares of any series of
Preferred Stock shall be redeemed unless all outstanding Preferred Stock of such
series is simultaneously redeemed; PROVIDED, HOWEVER, that the foregoing shall
not prevent the purchase or acquisition of Preferred Stock of such series to
preserve the REIT status of the Company or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Preferred Stock of
such series. In addition, unless (i) if such series of Preferred Stock has a
cumulative dividend, full cumulative dividends on all outstanding shares of any
series of Preferred Stock have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set apart for payment
for all past dividends periods and the then current dividend period, and (ii) if
such series of Preferred Stock does not have a cumulative dividend, full
dividends on the Preferred Stock of any series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for the then current dividend period, the Company shall
not purchase or otherwise acquire directly or indirectly any shares of Preferred
Stock of such series (except by conversion into or exchange for capital shares
of the Company ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation); PROVIDED, HOWEVER, that the foregoing shall not
prevent the purchase or acquisition of Preferred Stock of such series to
preserve the REIT status of the Company or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Preferred Stock of
such series.
If fewer than all of the outstanding shares of Preferred Stock of any series
are to be redeemed, the number of shares to be redeemed will be determined by
the Company and such shares may be redeemed pro rata from the holders of record
of such shares in proportion to the number of such shares held or for which
redemption is requested by such holder (with adjustments to avoid redemption of
fractional shares) or by lot in a manner determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the share transfer books of
the Company. Each notice shall state: (i) the redemption date; (ii) the number
of shares and series of the Preferred Stock to be redeemed; (iii) the redemption
price; (iv) the place or places where certificates for such Preferred Stock are
to be surrendered for payment of the redemption price; (v) that dividends on the
shares to be redeemed will cease to accrue on such redemption date; and (vi) the
date upon which the holder's conversion rights, if any, as to such shares shall
terminate. If fewer than all the shares of Preferred Stock of any series are to
be redeemed, the notice mailed to each such holder thereof shall also specify
the number of shares of Preferred Stock to be redeemed from each such holder. If
notice of
18
<PAGE>
redemption of any Preferred Stock has been given and if the funds necessary for
such redemption have been set aside by the Company in trust for the benefit of
the holders of any Preferred Stock so called for redemption, then from and after
the redemption date dividends will cease to accrue on such Preferred Stock, and
all rights of the holders of such shares will terminate, except the right to
receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Stock or any other class or series of capital
shares of the Company ranking junior to the Preferred Stock in the distribution
of assets upon any liquidation, dissolution or winding up of the Company, the
holders of each series of Preferred Stock shall be entitled to receive out of
assets of the Company legally available for distribution to shareholders
liquidating distributions in the amount of the liquidation preference per share
(set forth in the applicable Prospectus Supplement), plus an amount equal to all
dividends accrued and unpaid thereon (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such Preferred
Stock does not have a cumulative dividend). After payment of the full amount of
the liquidating distributions to which they are entitled, the holders of
Preferred Stock will have no right or claim to any of the remaining assets of
the Company. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding Preferred Stock and the corresponding amounts payable on all shares
of other classes or series of capital shares of the Company ranking on a parity
with the Preferred Stock in the distribution of assets, then the holders of the
Preferred Stock and all other such classes or series of capital shares shall
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital shares ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, trust or entity, or the sale,
lease or conveyance of all or substantially all of the property or business of
the Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any shares of Preferred Stock shall be in arrears for
six or more consecutive quarterly periods, the holders of such shares of
Preferred Stock (voting separately as a class with all other series of preferred
stock upon which like voting rights have been conferred and are exercisable)
will be entitled to vote for the election of two additional directors of the
Company at a special meeting called by the holders of record of at least ten
percent (10%) of any series of Preferred stock so in arrears (unless such
request is received less than 90 days before the date fixed for the next annual
or special meeting of the stockholders) or at the next annual meeting of
stockholders, and at each subsequent annual meeting until (i) if such series of
Preferred Stock has a cumulative dividend, all dividends accumulated on such
shares of Preferred Stock for the past dividend periods and the then current
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment or (ii) if such series of Preferred
Stock does not have a cumulative dividend, four consecutive quarterly dividends
shall have been fully paid or declared and a sum sufficient for the payment
thereof set aside for payment. In such case, the entire board of directors of
the Company will be increased by two directors.
Unless provided otherwise for any series of Preferred Stock, so long as any
shares of Preferred Stock remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of at least two-thirds of the shares
of each series of Preferred Stock outstanding at the time, given in person or by
proxy,
19
<PAGE>
either in writing or at a meeting (such series voting separately as a class),
(i) authorize or create, or increase the authorized or issued amount of, any
class or series of capital stock ranking prior to such series of Preferred Stock
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up or reclassify any authorized capital
stock of the Company into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares; or (ii) amend, alter or repeal the provisions of the Company's
Articles of Incorporation or the Designating Amendment for such series of
Preferred Stock, whether by merger, consolidation or otherwise (an "Event"), so
as to materially and adversely affect any right, preference, privilege or voting
power of such series of Preferred Stock or the holders thereof; PROVIDED,
HOWEVER, with respect to the occurrence of any of the Events set forth in (ii)
above, so long as the Preferred Stock remains outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of an Event,
the Company may not be the surviving entity, the occurrence of any such Event
shall not be deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of Preferred Stock and provided further
that (x) any increase in the amount of the authorized Preferred Stock or the
creation or issuance of any other series of Preferred Stock, or (y) any increase
in the amount of authorized shares of such series or any other series of
Preferred Stock, in each case ranking on a parity with or junior to the
Preferred Stock of such series with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall have
been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
Under Indiana law, notwithstanding anything to the contrary set forth above,
holders of each series of Preferred Stock will be entitled to vote as a class
upon any proposed amendment to the Articles of Incorporation, whether or not
entitled to vote thereon by the Articles of Incorporation, if the amendment
would (i) increase or decrease the aggregate number of authorized shares of such
series; (ii) effect an exchange or reclassification of all or part of the shares
of the series into shares of another series; (iii) effect an exchange or
reclassification, or create the right of exchange, of all or part of the shares
of another class or series into shares of the series; (iv) change the
designation, rights, preferences or limitations of all or a part of the shares
of the series; (v) change the shares of all or part of the series into a
different number of shares of the same series; (vi) create a new series having
rights or preferences with respect to distributions or dissolution that are
prior, superior or substantially equal to the shares of the series; (vii)
increase the rights, preferences or number of authorized shares of any class or
series that, after giving effect to the amendment, have rights or preferences
with respect to distributions or to dissolution that are prior, superior or
substantially equal to the shares of the series; (viii) limit or deny an
existing preemptive right of all or part of the shares of the series; or (ix)
cancel or otherwise affect rights to distributions or dividends that have
accumulated but have not yet been declared on all or part of the shares of the
series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into shares of Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Common Stock into which the shares of Preferred Stock are convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
20
<PAGE>
SHAREHOLDER LIABILITY
As discussed below under "Description of Common Stock -- General,"
applicable Indiana law provides that no shareholder, including holders of
Preferred Stock, shall be personally liable for the acts and obligations of the
Company and that the funds and property of the Company shall be the only
recourse for such acts or obligations.
RESTRICTIONS ON OWNERSHIP
As discussed below under "Description of Common Stock -- Certain Provisions
Affecting Change of Control," for the Company to qualify as a REIT under the
Internal Revenue Code of 1986, as amended (the "Code"), not more than 50% in
value of its outstanding capital shares may be owned, directly or indirectly, by
five or fewer individuals (as defined in the Code to include certain entities)
during the last half of a taxable year. To assist the Company in meeting this
requirement, the Company may take certain actions to limit the beneficial
ownership, directly or indirectly, by a single person of the Company's
outstanding equity securities, including any Preferred Stock of the Company.
Therefore, the Designating Amendment for each series of Preferred Stock may
contain provisions restricting the ownership and transfer of the Preferred
Stock. The applicable Prospectus Supplement will specify any additional
ownership limitation relating to a series of Preferred Stock.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Preferred Stock will be set forth
in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable Prospectus
Supplement. Shares of Preferred Stock of each series represented by Depositary
Shares will be deposited under a separate deposit agreement (each, a "Deposit
Agreement") among the Company, the depositary named therein (a "Preferred Stock
Depositary") and the holders from time to time of the Depositary Receipts.
Subject to the terms of the applicable Deposit Agreement, each owner of a
Depositary Receipt will be entitled, in proportion to the fractional interest of
a share of a particular series of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipt, to all the rights and preferences
of the Preferred Stock represented by such Depositary Shares (including
dividend, voting, conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to a Preferred Stock
Depositary, the Company will cause such Preferred Stock Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request, and the statements made hereunder relating to Deposit Agreements and
the Depositary Receipts to be issued thereunder are summaries of certain
anticipated provisions thereof and do not purport to be complete and are subject
to, and qualified in their entirety by reference to, all of the provisions of
the applicable Deposit Agreement and related Depositary Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
A Preferred Stock Depositary will be required to distribute all cash
dividends or other cash distributions received in respect of the applicable
Preferred Stock to the record holders of Depositary Receipts evidencing the
related Depositary Shares in proportion to the number of such Depositary
Receipts owned by such holders, subject to certain obligations of holders to
file proofs, certificates and other information and to pay certain charges and
expenses to such Preferred Stock Depositary.
21
<PAGE>
In the event of a distribution other than in cash, a Preferred Stock
Depositary will be required to distribute property received by it to the record
holders of Depositary Receipts entitled thereto, subject to certain obligations
of holders to file proofs, certificates and other information and to pay certain
charges and expenses to such Preferred Stock Depositary, unless such Preferred
Stock Depositary determines that it is not feasible to make such distribution,
in which case such Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any Preferred Stock which has been converted or
exchanged.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the applicable Preferred Stock Depositary (unless the related Depositary Shares
have previously been called for redemption or converted), the holders thereof
will be entitled to delivery at such office, to or upon each such holder's
order, of the number of whole or fractional shares of the applicable Preferred
Stock and any money or other property represented by the Depositary Shares
evidenced by such Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related Preferred Stock on
the basis of the proportion of Preferred Stock represented by each Depositary
Share as specified in the applicable Prospectus Supplement, but holders of such
shares of Preferred Stock will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the holder evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of shares of Preferred Stock to be withdrawn, the
applicable Preferred Stock Depositary will be required to deliver to such holder
at the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by a Preferred
Stock Depositary, such Preferred Stock Depositary will be required to redeem as
of the same redemption date the number of Depositary Shares representing shares
of the Preferred Stock so redeemed, provided the Company shall have paid in full
to such Preferred Stock Depositary the redemption price of the Preferred Stock
to be redeemed plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption. The redemption price per Depositary Share will
be equal to the redemption price and any other amounts per share payable with
respect to the Preferred Stock. If fewer than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company that preserves the REIT
status of the Company.
From and after the date fixed for redemption, all dividends in respect of
the shares of Preferred Stock so called for redemption will cease to accrue, the
Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
the Depositary Shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or other property
to which the holders of such Depositary Receipts were entitled upon such
redemption upon surrender thereof to the applicable Preferred Stock Depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the applicable
Preferred Stock are entitled to vote, a Preferred Stock Depositary will be
required to mail the information contained in such notice of meeting to the
record holders of the Depositary Receipts evidencing the Depositary Shares which
represent such Preferred Stock. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be the same date as
the record date for the Preferred Stock) will be entitled to instruct such
Preferred Stock Depositary as to the exercise of the voting rights pertaining to
the amount of Preferred Stock represented by such holder's Depositary Shares.
Such Preferred Stock Depositary will be required to vote the amount of Preferred
Stock represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all reasonable action which may
be deemed necessary
22
<PAGE>
by such Preferred Stock Depositary in order to enable such Preferred Stock
Depositary to do so. Such Preferred Stock Depositary will be required to abstain
from voting the amount of Preferred Stock represented by such Depositary Shares
to the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing such Depositary Shares. A Preferred Stock
Depositary will not be responsible for any failure to carry out any instruction
to vote, or for the manner or effect of any such vote made, as long as any such
action or non-action is in good faith and does not result from negligence or
willful misconduct of such Preferred Stock Depositary.
LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each Depositary Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depositary Share evidenced by such Depositary
Receipt, as set forth in the applicable Prospectus Supplement.
CONVERSION OF PREFERRED STOCK
The Depositary Shares, as such, will not be convertible into Common Stock or
any other securities or property of the Company. Nevertheless, if so specified
in the applicable Prospectus Supplement relating to an offering of Depositary
Shares, the Depositary Receipts may be surrendered by holders thereof to the
applicable Preferred Stock Depositary with written instructions to such
Preferred Stock Depositary to instruct the Company to cause conversion of the
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into whole shares of Common Stock, other shares of Preferred
Stock of the Company or other shares of stock, and the Company will agree that
upon receipt of such instructions and any amounts payable in respect thereof, it
will cause the conversion thereof utilizing the same procedures as those
provided for delivery of Preferred Stock to effect such conversion. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock will be issued
upon conversion, and if such conversion will result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
AMENDMENT AND TERMINATION OF A DEPOSIT AGREEMENT
Any form of Depositary Receipt evidencing Depositary Shares which will
represent Preferred Stock and any provision of a Deposit Agreement will be
permitted at any time to be amended by agreement between the Company and the
applicable Preferred Stock Depositary. However, any amendment that materially
and adversely alters the rights of the holders of Depositary Receipts or that
would be materially and adversely inconsistent with the rights granted to the
holders of the related Preferred Stock will not be effective unless such
amendment has been approved by the existing holders of at least two-thirds of
the applicable Depositary Shares evidenced by the applicable Depositary Receipts
then outstanding. No amendment shall impair the right, subject to certain
anticipated exceptions in the Deposit Agreements, of any holder of Depositary
Receipts to surrender any Depositary Receipt with instructions to deliver to the
holder the related Preferred Stock and all money and other property, if any,
represented thereby, except in order to comply with law. Every holder of an
outstanding Depositary Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Depositary Receipt, to consent and
agree to such amendment and to be bound by the applicable Deposit Agreement as
amended thereby.
A Deposit Agreement will be permitted to be terminated by the Company upon
not less than 30 days' prior written notice to the applicable Preferred Stock
Depositary if (i) such termination is necessary to preserve the Company's status
as a REIT or (ii) a majority of each series of Preferred Stock affected by such
termination consents to such termination, whereupon such Preferred Stock
Depositary will be required to deliver or make available to each holder of
Depositary Receipts, upon surrender of the Depositary Receipts held by such
holder, such number of whole or fractional shares of Preferred Stock as are
represented by the Depositary Shares evidenced by such Depositary Receipts
together with any other property held by such
23
<PAGE>
Preferred Stock Depositary with respect to such Depositary Receipts. The Company
will agree that if a Deposit Agreement is terminated to preserve the Company's
status as a REIT, then the Company will use its best efforts to list the
Preferred Stock issued upon surrender of the related Depositary Shares on a
national securities exchange. In addition, a Deposit Agreement will
automatically terminate if (i) all outstanding Depositary Shares thereunder
shall have been redeemed, (ii) there shall have been a final distribution in
respect of the related Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Receipts evidencing the Depositary
Shares representing such Preferred Stock or (iii) each share of the related
Preferred Stock shall have been converted into stock of the Company not so
represented by Depositary Shares.
CHARGES OF A PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of a Deposit Agreement. In addition, the
Company will pay the fees and expenses of a Preferred Stock Depositary in
connection with the performance of its duties under a Deposit Agreement.
However, holders of Depositary Receipts will pay the fees and expenses of a
Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the applicable
Deposit Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
A Preferred Stock Depositary will be permitted to resign at any time by
delivering to the Company notice of its election to do so, and the Company will
be permitted at any time to remove a Preferred Stock Depositary, any such
resignation or removal to take effect upon the appointment of a successor
Preferred Stock Depositary. A successor Preferred Stock Depositary will be
required to be appointed within 60 days after delivery of the notice of
resignation or removal and will be required to be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
A Preferred Stock Depositary will be required to forward to holders of
Depositary Receipts any reports and communications from the Company which are
received by such Preferred Stock Depositary with respect to the related
Preferred Stock.
Neither a Preferred Stock Depositary nor the Company will be liable if it is
prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under a Deposit Agreement. The obligations of the
Company and a Preferred Stock Depositary under a Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Stock represented by the applicable Depositary Shares), gross negligence or
willful misconduct, and neither the Company nor any applicable Preferred Stock
Depositary will be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts. Depositary Shares or shares of Preferred
Stock represented thereby unless satisfactory indemnity is furnished. The
Company and any Preferred Stock Depositary will be permitted to rely on written
advice of counsel or accountants, or information provided by persons presenting
shares of Preferred Stock represented thereby for deposit, holders of Depositary
Receipts or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event a Preferred Stock Depositary shall receive conflicting claims,
requests or instructions from any holders of Depositary Receipts, on the one
hand, and the Company, on the other hand, such Preferred Stock Depositary shall
be entitled to act on such claims, requests or instructions received from the
Company.
24
<PAGE>
DESCRIPTION OF COMMON STOCK
GENERAL
The authorized capital stock of the Company includes 45,000,000 shares of
Common Stock, $.01 par value per share. Each outstanding share of Common Stock
entitles the holder to one vote on all matters presented to shareholders for a
vote. Holders of Common Stock have no preemptive rights. At June 30, 1995, there
were 24,134,745 shares of Common Stock outstanding and 4,163,459 shares reserved
for issuance upon exchange of outstanding Units.
Shares of Common Stock currently outstanding are listed for trading on the
New York Stock Exchange (the "NYSE"). The Company will apply to the NYSE to list
the additional shares of Common Stock to be sold pursuant to any Prospectus
Supplement, and the Company anticipates that such shares will be so listed.
The Articles of Incorporation of the Company provide for the board of
directors to be divided into three classes of directors, each class to consist
as nearly as possible of one-third of the directors. At each annual meeting of
shareholders, the class of directors to be elected at such meeting will be
elected for a three-year term and the directors in the other two classes will
continue in office. The overall effect of the provisions in the Articles of
Incorporation with respect to the classified board may be to render more
difficult a change of control of the Company or removal of incumbent management.
Holders of Common Stock have no right to cumulative voting for the election of
directors. Consequently, at each annual meeting of shareholders, the holders of
a plurality of the shares of Common Stock are able to elect all of the
successors of the class of directors whose term expires at that meeting.
Directors may be removed only for cause and only with the affirmative vote of
the holders of a majority of the shares of Common Stock entitled to vote in the
election of directors.
All shares of Common Stock issued will be duly authorized, fully paid, and
non-assessable. Distributions may be paid to the holders of Common Stock if and
when declared by the board of directors of the Company out of funds legally
available therefor. The Company intends to continue to pay quarterly dividends.
Under Indiana law, shareholders are generally not liable for the Company's
debts or obligations. If the Company is liquidated, subject to the right of any
holders of preferred stock, if any, to receive preferential distributions, each
outstanding share of Common Stock will be entitled to participate pro rata in
the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company.
CERTAIN PROVISIONS AFFECTING CHANGE OF CONTROL
GENERAL. Pursuant to Indiana law, the Company cannot merge with or sell all
or substantially all of the assets of the Company, except pursuant to a
resolution approved by shareholders holding a majority of the shares voting on
the resolution. The Company's Articles of Incorporation also contain provisions
which may discourage certain types of transactions involving an actual or
threatened change of control of the Company, including: (i) a requirement that,
in the case of certain mergers, sales of assets, liquidations or dissolutions,
or reclassifications or recapitalizations involving persons owning 10% or more
of the capital stock of the Company, such transactions be approved by a vote of
the holders of 80% of the issued and outstanding shares of capital stock of the
Company or three-fourths of the continuing directors, or provide for payment of
a price to affected shareholders for their shares not less than as specified in
the Articles of Incorporation; (ii) a requirement that any amendment or
alteration of certain provisions of the Articles of Incorporation affecting
change of control be approved by the holders of 80% of the issued and
outstanding capital stock of the Company; and (iii) a staggered board of
directors and a limitation on removal of directors to removal for cause as
described above.
The partnership agreement for the Operating Partnership also contains
provisions which could discourage transactions involving an actual or threatened
change of control of the Company, including (i) a requirement that holders of at
least 90% of the outstanding Units held by the Company and other Unit holders
approve any voluntary sale, exchange or other disposition, including merger or
consolidation (other than a disposition occurring upon a financing or
refinancing of the Operating Partnership), of all or
25
<PAGE>
substantially all of the assets of the Operating Partnership in a single
transaction or a series of related transactions; (ii) a restriction against any
assignment or transfer by the Company of its interest in the Operating
Partnership; and (iii) a requirement that holders of more than 90% of the Units
approve any merger, consolidation or other combination of the Company with or
into another entity, or sale of all or substantially all of the Company's
assets, or any reclassification or recapitalization or change of outstanding
shares of Common Stock (other than certain changes in par value, stock splits,
stock dividends or combinations) unless after the transaction substantially all
of the assets of the surviving entity are contributed to the Operating
Partnership in exchange for Units. On these matters, the Company's Units will be
voted at the discretion of the directors of the Company who are not officers or
employees of the Company and do not hold Units.
OWNERSHIP LIMITS. For the Company to qualify as a REIT under the Code, no
more than 50% in value of its outstanding capital shares may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year or during a
proportionate part of a shorter taxable year. The Common Stock must also be
beneficially owned by 100 or more persons during at least 335 days of a taxable
year or during a proportionate part of a shorter taxable year. Because the
Company expects to continue to qualify as a REIT, the Articles of Incorporation
of the Company contain restrictions on the acquisition of Common Stock intended
to ensure compliance with these requirements.
The Articles of Incorporation contain a restriction which authorizes, but
does not require, the board of directors to refuse to give effect to a transfer
of Common Stock which, in its opinion, might jeopardize the status of the
Company as a REIT. This provision also renders null and void any purported
acquisition of shares which would result in the disqualification of the Company
as a REIT. The provision also gives the board of directors the authority to take
such actions as it deems advisable to enforce the provision. Such actions might
include, but are not limited to, refusing to give effect to, or seeking to
enjoin, a transfer which might jeopardize the Company's status as a REIT. The
provision also requires any shareholder to provide the Company such information
regarding his direct and indirect ownership of Common Stock as the Company may
reasonably require.
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Common Stock is American Stock
Transfer & Trust Company, New York, New York.
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell Securities to or through
underwriters, and also may sell Securities directly to other purchasers or
through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Common Stock may also be
issued to certain holders of Units in exchange for their Units pursuant to the
partnership agreement of the Operating Partnership.
In connection with the sale of Securities, underwriters may receive
compensation from the Company, from the Operating Partnership or from purchasers
of Securities, for whom they may act as agents, in the form of discounts,
concessions, or commissions. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions, or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers, and agents
that participate in the distribution of Securities may be deemed to be
underwriters, and any discounts or commissions they receive from the Company or
the Operating Partnership, and any profit on the resale of Securities they
realize may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company or the Operating Partnership will be
described, in the Prospectus Supplement.
26
<PAGE>
Unless otherwise specified in the related Prospectus Supplement, each series
of Securities will be a new issue with no established trading market, other than
the Common Stock which is listed on the NYSE. Any shares of Common Stock sold
pursuant to a Prospectus Supplement will be listed on such exchange, subject to
official notice of issuance. The Company or the Operating Partnership may elect
to list any series of Debt Securities, Preferred Stock or Depositary Shares on
an exchange, but neither is obligated to do so. It is possible that one or more
underwriters may make a market in a series of Securities, but will not be
obligated to do so and may discontinue any market making at any time without
notice. Therefore, no assurance can be given as to the liquidity of the trading
market for the Securities.
Under agreements the Company and the Operating Partnership may enter into,
underwriters, dealers, and agents who participate in the distribution of
Securities may be entitled to indemnification by the Company or the Operating
Partnership against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, or be customers of, the Company or the Operating Partnership in
the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company or the
Operating Partnership, as the case may be, will authorize underwriters or other
persons acting as the Company's or the Operating Partnership's agents to solicit
offers by certain institutions to purchase Securities from the Company or the
Operating Partnership pursuant to contracts providing for payment and delivery
on a future date. Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in all cases
such institutions must be approved by the Company or the Operating Partnership,
as the case may be. The obligations of any purchaser under any such contract
will be subject to the condition that the purchase of the Securities shall not
at the time of delivery be prohibited under the laws of the jurisdiction to
which such purchaser is subject. The underwriters and such other agents will not
have any responsibility in respect of the validity or performance of such
contracts.
LEGAL OPINIONS
The legality of the Securities offered hereby is being passed upon for the
Company by Bose McKinney & Evans, Indianapolis, Indiana. John W. Wynne and
Darell E. Zink, Jr., officers and directors of the Company, were partners in
Bose McKinney & Evans through 1987 and 1982, respectively, and were of counsel
to that firm until December, 1990. The spouse of Dayle M. Eby, an officer and
shareholder of the Company, is a partner in Bose McKinney & Evans. Rogers &
Wells, New York, New York will act as counsel to any underwriters, dealers or
agents.
EXPERTS
The Consolidated Financial Statements and Schedules of the Company as of
December 31, 1994 and 1993, and for each of the years in the three-year period
ended December 31, 1994, and the Consolidated Financial Statements of the
Operating Partnership as of December 31, 1994 and 1993, and for each of the
years in the three-year period ended December 31, 1994, each incorporated herein
by reference have been incorporated herein in reliance on the reports of KPMG
Peat Marwick LLP, independent auditors, also incorporated by reference herein,
and upon the authority of said firm as experts in accounting and auditing.
27
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fee.................................................. $ 124,138
NYSE Listing Fee.................................................. 25,000
Fees of Rating Agencies........................................... 60,000
Printing and Engraving Expenses................................... 200,000
Legal Fees and Expenses........................................... 125,000
Accounting Fees and Expenses...................................... 40,000
Blue Sky Fees and Expenses........................................ 20,000
Miscellaneous..................................................... 30,862
---------
Total......................................................... $ 625,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Indiana corporation. The Company's officers and directors
are and will be indemnified under Indiana law, the Articles of Incorporation of
the Company, and the partnership agreements of the Operating Partnership and
Duke Realty Services Limited Partnership against certain liabilities. Chapter 37
of The Indiana Business Corporation Law (the "IBCL") requires a corporation,
unless its articles of incorporation provide otherwise, to indemnify a director
or an officer of the corporation who is wholly successful, on the merits or
otherwise, in the defense of any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative and
whether formal or informal, against reasonable expenses, including counsel fees,
incurred in connection with the proceeding. The Company's Articles of
Incorporation do not contain any provision prohibiting such indemnification.
The IBCL also permits a corporation to indemnify a director, officer,
employee or agent who is made a party to a proceeding because the person was a
director, officer, employee or agent of the corporation against liability
incurred in the proceeding if (i) the individual's conduct was in good faith and
(ii) the individual reasonably believed (A) in the case of conduct in the
individual's official capacity with the corporation that the conduct was in the
corporation's best interests and (B) in all other cases that the individual's
conduct was at least not opposed to the corporation's best interests and (iii)
in the case of a criminal proceeding, the individual either (A) had reasonable
cause to believe the individual's conduct was lawful or (B) had no reasonable
cause to believe the individual's conduct was unlawful. The IBCL also permits a
corporation to pay for or reimburse reasonable expenses incurred before the
final disposition of the proceeding and permits a court of competent
jurisdiction to order a corporation to indemnify a director or officer if the
court determines that the person is fairly and reasonably entitled to
indemnification in view or all the relevant circumstances, whether or not the
person met the standards for indemnification otherwise provided in the IBCL.
The Company's Articles of Incorporation provide for certain additional
limitations of liability and indemnification. Section 13.01 of the Articles of
Incorporation provides that a director shall not be personally liable to the
Company or its shareholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) for voting for or assenting to an unlawful distribution, or (iv) for
any transaction from which the director derived an improper personal benefit.
Section 13.02 of the Articles of Incorporation generally provides that any
director or officer of the Company or any person who is serving at the request
of the Company as a director, officer, employee or agent of another entity shall
be indemnified and held harmless by the Company to the fullest extent authorized
by the IBCL against all expense, liability and loss (including attorneys' fees,
judgments, fines certain employee benefits excise taxes or penalties and
II-1
<PAGE>
amounts paid or to be paid in settlement) reasonably incurred or suffered in
connection with a civil, criminal, administrative or investigative action, suit
or proceeding to which such person is a party by reason of the person's service
with or at the request of the Company. Section 13.02 of the Articles of
Incorporation also provides such persons with certain rights to be paid by the
Company the expenses incurred in defending any such proceeding in advance of the
final disposition and the right to enforce indemnification claims against the
Company by bringing suit against the Company.
The Company's Articles of Incorporation authorize the Company to maintain
insurance to protect itself and any director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against expense, liability or loss, whether or not the Company would
have the power to indemnify such person against such expense, liability or loss
under the IBCL.
Each of the partnership agreements for the Operating Partnership and Duke
Realty Services Limited Partnership also provides for indemnification of the
Company and its officers and directors to substantially the same extent provided
to officers and directors of the Company in its Articles of Incorporation, and
limits the liability of the Company and its officers and directors to the
Operating Partnership and its partners and to Duke Realty Services Limited
Partnership and its partners, respectively, to substantially the same extent
limited under the Company's Articles of Incorporation.
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
<TABLE>
<S> <C>
3.1 Amended and Restated Articles of Incorporation of Duke Realty Investments, Inc.
3.2 Amended and Restated Bylaws of Duke Realty Investments, Inc.
5 Opinion and consent of Bose McKinney & Evans regarding legality of the securities being
registered.
12.1 Calculation of Ratios of Earnings to Fixed Charges.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Bose McKinney & Evans (included in Exhibit 5).
24 Powers of Attorney (filed as part of the signature page to the Registration Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 15 above, or otherwise, such
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrants of expenses
incurred or paid by a director, officer or controlling person of the Registrants
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-2
<PAGE>
The undersigned Registrants hereby further undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (Section 230.424(b) of 17 C.F.R.) if,
in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrants pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrants hereby further undertake that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrants' annual reports pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
The undersigned Registrants further undertake that:
(a) For purposes of determining any liability under the Securities Act
of 1933, as amended (the "Act"), the information omitted from the form of
Prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in the form of prospectus filed by the Registrants
pursuant to Rule 424(b)(l) or (4) or 497(h) under the Act shall be deemed to
be part of the Registration Statement as of the time it was declared
effective.
(b) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on July 27, 1995.
Duke Realty Investments, Inc.
By: /s/ Thomas L. Hefner
-----------------------------------
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Duke Realty Limited Partnership
By: Duke Realty Investments, Inc.
General Partner
By: /s/ Thomas L. Hefner
-----------------------------------
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears below
hereby appoints Thomas L. Hefner, Darell E. Zink, Jr., and Dennis D. Oklak, and
each of them, as his attorneys-in-fact, with full power of substitution and
resubstitution, to execute in the name and on behalf of such person,
individually and in the capacity stated below, and to file all amendments and
post-effective amendments to this Registration Statement, which amendment or
amendments may make such changes in and additions to this Registration Statement
as such attorneys-in-fact may deem necessary or appropriate, and any
registration statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as amended.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------- ----------------
<C> <S> <C>
/s/ John W. Wynne
- ----------------------------------- Director and Chairman of July 27, 1995
John W. Wynne the Board
Director and President
/s/ Thomas L. Hefner and Chief Executive
- ----------------------------------- Officer (Principal July 27, 1995
Thomas L. Hefner Executive Officer)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------- ------------------------- ----------------
<C> <S> <C>
Director and Executive
/s/ Daniel C. Staton Vice President and Chief
- ----------------------------------- Operating Officer July 27, 1995
Daniel C. Staton (Principal Operating
Officer)
Director and Executive
Vice President, Chief
/s/ Darell E. Zink, Jr. Financial Officer and
- ----------------------------------- Assistant Secretary July 27, 1995
Darell E. Zink, Jr. (Principal Accounting
Officer)
/s/ Geoffrey Button
- ----------------------------------- Director July 27, 1995
Geoffrey Button
/s/ Ngaire E. Cuneo
- ----------------------------------- Director July 27, 1995
Ngaire E. Cuneo
/s/ Howard L. Feinsand
- ----------------------------------- Director July 27, 1995
Howard L. Feinsand
/s/ John D. Peterson
- ----------------------------------- Director July 27, 1995
John D. Peterson
/s/ James E. Rogers
- ----------------------------------- Director July 27, 1995
James E. Rogers
- ----------------------------------- Director
Lee Stanfield
/s/ Jay J. Strauss
- ----------------------------------- Director July 27, 1995
Jay J. Strauss
</TABLE>
II-5
<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DUKE REALTY INVESTMENTS, INC.
ARTICLE I
IDENTIFICATION
SECTION 1.01. NAME. The name of the Corporation is Duke Realty
Investments, Inc.
ARTICLE II
DEFINITIONS
SECTION 2.01. CERTAIN DEFINITIONS. The following terms when used herein
shall have the meanings set forth below:
(a) ACT. The "Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(b) AFFILIATE. "Affiliate" shall mean, as to any Person, (i) any other
Person directly or indirectly controlling, controlled by or under common control
with such Person, (ii) any other Person that owns beneficially, directly or
indirectly, five percent (5%) or more of the outstanding capital stock, shares
or equity interests of such Person, or (iii) any officer, director, employee,
general partner or trustee of such Person or of any Person controlling,
controlled by or under common control with such Person (excluding trustees and
Persons serving in similar capacities who are not otherwise an Affiliate of such
Person), and shall have the meaning ascribed thereto in the Act.
(c) ARTICLES. "Articles" shall mean the Articles of Incorporation of the
Corporation, filed with the Indiana Secretary of State, as amended from time to
time.
(d) BUSINESS COMBINATION. "Business Combination" shall have the meaning
set forth in Section 9.01.
(e) BY-LAWS. "By-Laws" shall mean the By-Laws of the Corporation, as
amended from time to time.
(f) CODE. "Code" shall mean the Internal Revenue Code of 1986, as amended
or supplemented from time to time.
(g) CONTINUING DIRECTOR. The term "Continuing Director" shall mean a
Person who was a member of the Board of Directors of the Corporation immediately
prior to the date as of which the Substantial Shareholder in question became a
Substantial
<PAGE>
Shareholder, or, following such date, a Person designated (before his initial
election or appointment as a director) as a Continuing Director by a majority
of the Whole Board, but only if a majority of the Whole Board shall then consist
of Continuing Directors, or, if a majority of the Whole Board shall not then
consist of Continuing Directors, by a majority of the then Continuing Directors.
(h) CORPORATION. The "Corporation" shall mean Duke Realty Investments,
Inc.
(i) DIRECTOR. "Director" shall mean a member of the Corporation's Board
of Directors.
(j) GENDER AND NUMBER. As used herein the masculine and feminine gender
and the singular and plural number shall be interchangeable, as the context
requires.
(k) OWNER. A Person is the "Owner" of Shares he has the right to acquire
either immediately or at some future date pursuant to any agreement, or upon
exercise of conversion rights, warrants or options or otherwise. A Person is
also the Owner of any Shares whose ownership is attributed to him by reason of
the ownership provisions of sections 542 and 544 of the Code, and any Shares he
beneficially owns under Rule 13d-3 promulgated under the Act.
(l) PERSON. "Person" shall mean an individual, partnership, trust,
corporation, or any other entity.
(m) REAL PROPERTY. "Real Property" shall mean land, leasehold interests
(including, but not limited to interests of lessor or lessee therein), rights
and interests in land, and any buildings, structures, improvements, furnishings,
fixtures and equipment used on or in connection with land, leasehold interests
or rights in land or interests therein.
(n) REIT. "REIT" or "real estate investment trust" shall mean a real
estate investment trust meeting all the qualifications in the Code.
(o) SECURITIES. "Securities" shall mean any stock, shares, voting trust
certificates, bonds, debentures, notes or other evidences of indebtedness or in
general any instruments commonly known as "securities" or any certificates of
interest, shares or participations in, temporary or interim certificates for,
receipts for, guarantees of, or warrants, options or rights to subscribe to,
purchase or acquire any of the foregoing.
(p) SHAREHOLDERS. "Shareholders" shall mean as of any particular time all
holders of record of outstanding Shares at such time.
-2-
<PAGE>
(q) SHARES. "Shares" shall mean the capital stock of the Corporation.
(r) SUBSTANTIAL SHAREHOLDER. "Substantial Shareholder" shall mean any
Person, corporation or other entity, together with any other entity with which
it or its Affiliate has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of capital stock of the
Corporation or which is its Affiliate, which immediately prior to any Business
Combination is the Owner of 10% or more of the outstanding Shares of the
Corporation.
(s) UNAFFILIATED DIRECTOR. "Unaffiliated Director" shall mean a Director
who is not an officer or employee of the Corporation or of any Affiliate of the
Corporation.
(t) WHOLE BOARD. "Whole Board" shall mean the total number of Directors
which this Corporation would have if there were no vacancies.
In connection with the foregoing and other defined terms in these Articles,
where applicable except as otherwise provided in the relevant definition,
calculations of amounts should be made in accordance with the accrual basis of
accounting.
ARTICLE III
REGISTERED OFFICE AND AGENT
The street address of the Corporation's initial registered office in the
State of Indiana is 8888 Keystone Crossing, Suite 1150, Indianapolis, Indiana
46240-2438. The name of its initial registered agent at such address is John W.
Wynne.
ARTICLE IV
PURPOSES
The purposes of the Corporation shall be:
(a) To purchase, hold, and otherwise deal in and with income-producing
interests in Real Property, and to make distributions of such income to its
Shareholders so as to qualify as a REIT at all times.
(b) To engage in any lawful act or activity for which corporations may be
organized under the Indiana Business Corporation Law, as amended from time to
time, not inconsistent with paragraph (a) above, and not otherwise specifically
prohibited in these Articles.
-3-
<PAGE>
ARTICLE V
AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation shall
have authority to issue is 50,000,000, of which 45,000,000 shall be of
non-assessable common stock having a par value of $.01 per share, and of which
5,000,000 shall be serial preferred stock having a par value of $.01 per share.
ARTICLE VI
TERMS OF AUTHORIZED SHARES
SECTION 6.01. TERMS OF STOCK. Each Share of common stock shall have the
same relative rights as and be identical in all respects with all other Shares
of common stock. The Shares of preferred stock may be issued from time to time
in one or more series. The Board of Directors of the Corporation shall have
authority to fix by resolution or resolutions the designations and the powers,
preferences and relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof, including, without
limitation, the voting rights, the dividend rate, conversion rights, redemption
price and liquidation preference, of any series of Shares of preferred stock, to
fix the number of Shares constituting any such series, and to increase or
decrease the number of Shares of any such series (but not below the number of
Shares thereof then outstanding). In case the number of Shares of any such
series shall be so decreased, the Shares constituting such decrease shall resume
the status they had prior to the adoption of the resolution or resolutions
originally fixing the number of Shares of such series. Shares shall have such
other voting powers, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as are stated below:
(a) DIVIDENDS. Whenever there shall have been paid, or declared and
set aside for payment, to the holders of the outstanding Shares of any
class of stock having preference over the common stock as to the payment of
dividends, the full amount of dividends and of sinking fund or retirement
fund or other retirement payments, if any, to which such holders are
respectively entitled in preference to the common stock, then dividends may
be paid on the common stock and on any class or series of Shares entitled
to participate therewith as to dividends, out of any assets legally
available for the payment of dividends in such form and amount as shall be
determined by the Board of Directors in accordance with the Indiana
Business Corporation Law.
-4-
<PAGE>
(b) TERMINATION. In the event of any voluntary or involuntary
liquidation, dissolution, winding up or other termination of the
Corporation, after the payment in full of the claims of creditors and after
there shall have been paid to or set aside for the holders of any class
having preference over the common stock in event of liquidation,
dissolution, winding up or other termination the full preferential amounts
to which they are respectively entitled, the remaining assets of the
Corporation available for payment and distribution to Shareholders shall be
distributed ratably among the holders of the common stock, and any class or
series of Shares entitled to participate therewith, in whole or in part, as
to the distribution of assets.
SECTION 6.02. DILUTION. The Corporation shall not increase the number of
authorized Shares without the approval of a majority of the Unaffiliated
Directors, and the affirmative vote of a majority of the Shareholders.
SECTION 6.03. LIABILITY FOR FURTHER ASSESSMENTS. The Shares, when duly
issued and paid for, will be fully paid and non-assessable by the Corporation.
SECTION 6.04. VOTING RIGHTS. Holders of Shares of common stock are
entitled to one vote per Share of common stock on all matters upon which such
holders are entitled to vote, except as otherwise specified herein. The Shares
shall not have cumulative voting rights.
ARTICLE VII
BOARD OF DIRECTORS
SECTION 7.01. NUMBER, CLASSES, TERM OF OFFICE AND QUALIFICATIONS OF
DIRECTORS. There shall be no fewer than five (5) nor more than twelve (12)
Directors. The initial Board of Directors shall consist of seven (7) members.
The number of Directors may be increased or decreased from time to time by the
Directors.
There shall be three classes of Directors, each class to be as nearly equal
in number as possible. The Directors of the first class shall hold office for a
term expiring at the annual meeting in 1993; Directors of the second class shall
hold office for a term expiring at the annual meeting in 1994; and Directors of
the third class shall hold office for a term expiring at the annual meeting in
1995. At each annual election beginning at the annual meeting of Shareholders
in 1993, the successors to the class of Directors whose term then expires shall
be elected to hold office for a term of three years. Directors may be
-5-
<PAGE>
re-elected any number of times. Election of each Director at an annual meeting
shall be by the affirmative vote of at least a majority of the Shareholders
entitled to vote thereon present in Person or by proxy at such meeting. Subject
to Section 7.03, each Director shall hold office until the election and
qualification of his successor. Directors may, but need not, own Shares or
other securities of the Corporation.
A Director shall be an individual at least twenty-one (21) years of age who
is not under legal disability. A majority of the Directors shall at all times
be Persons who are Unaffiliated Directors; PROVIDED, HOWEVER, that upon a
failure to comply with this requirement because of the resignation, removal or
death of a Director who is an Unaffiliated Director, such requirement shall not
be applicable for a period of sixty (60) days. Nominees to serve as
Unaffiliated Directors shall be nominated by the then current Unaffiliated
Directors, if any, otherwise by the remaining Directors. Unless otherwise
required by law, no Director shall be required to give bond, surety or security
in any jurisdiction for the performance of any duties or obligations hereunder.
The Directors in their capacity as Directors shall not be required to devote
their entire time to the business and affairs of the Corporation.
SECTION 7.02. RESIGNATION, REMOVAL AND DEATH OF DIRECTORS. A Director may
resign at any time by giving written notice to the remaining Directors at the
principal office of the Corporation. Such resignation shall take effect on the
date specified in such notice, without need for prior accounting. A Director
judged incompetent, or for whom a guardian or conservator has been appointed,
shall be deemed to have resigned as of the date of such adjudication or
appointment. A Director may be removed for cause by affirmative vote of at
least a majority of the total votes eligible to be cast by the Shareholders at a
duly constituted meeting of Shareholders called expressly for such purpose.
Except as may otherwise be provided by law, cause for removal shall be construed
to exist only if the Director whose removal is proposed has been judged
incompetent, convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to appeal, or has been adjudged by a court of
competent jurisdiction to be liable for gross negligence or misconduct in the
performance of his duty to the Corporation in a matter of substantial importance
to the Corporation, and such adjudication is no longer subject to direct appeal.
At least 20 days prior to such meeting of Shareholders, written notice shall be
sent to the Director or Directors whose removal will be considered at such
meeting.
SECTION 7.03. VACANCIES. Notwithstanding any of the foregoing provisions
of this Article, each Director shall serve until his successor is elected and
qualified or until his death, retirement, resignation or removal. Should a
vacancy occur or be
-6-
<PAGE>
created, whether arising through death, resignation or removal of a Director or
through an increase in the number of Directors of any class, such vacancy shall
be filled by a majority vote of the remaining Directors then in office, whether
or not a quorum. A Director so elected to fill a vacancy shall serve for the
remainder of the then present term of office of the class to which he was
elected.
SECTION 7.04. QUORUM. A quorum for all meetings of the Directors shall be
a majority of the total number of Directors; PROVIDED, HOWEVER, that, whenever
the vote of a majority of a particular group of Directors (including, but not
limited to the Unaffiliated Directors) is required at a meeting, a quorum for
such meeting shall be a majority of the total number of Directors which shall
include a majority of such group.
SECTION 7.05. COMMITTEES. The Directors may appoint from among their
number an audit committee and such other standing committees as the Directors
determine. Each standing committee shall consist of three or more members. All
members of the audit committee shall be Unaffiliated Directors. A majority of
the members of each other standing committee shall be Unaffiliated Directors;
PROVIDED, HOWEVER, that upon a failure to comply with this requirement because
of the resignation, removal or death of a Director who is an Unaffiliated
Director, such requirement shall not be applicable for a period of sixty (60)
days. Each committee shall have such powers, duties and obligations as the
Directors may deem necessary or appropriate. The standing committees shall
report their activities periodically to the Directors.
ARTICLE VIII
SHAREHOLDERS' MEETINGS
SECTION 8.01. All meetings of Shareholders to elect Directors and to
transact such other business as may properly be presented to the meeting shall
be held at such place, either within or without the State of Indiana, as may be
authorized in the By-Laws and specified in the respective notices of any such
meetings.
SECTION 8.02. Special meetings of the Shareholders may be called at any
time by the Chairman of the Board of Directors, a majority of the Board of
Directors, a majority of the Unaffiliated Directors, the President of the
Corporation, or at the request, in writing, of Shareholders owning ten percent
(10%) of the aggregate number of Shares of the Corporation issued and
outstanding and entitled to vote. Such meetings shall be held at such time and
place, within or without the State of Indiana, as shall be specified in the
notice thereof. Business transacted at
-7-
<PAGE>
any special meeting of Shareholders shall be limited to the purpose or purposes
stated in the notice.
SECTION 8.03. All actions permitted or required to be taken by the
Shareholders shall be taken at an annual or special meeting of the Shareholders.
The Shareholders may not act by written consent in lieu of meeting.
ARTICLE IX
BUSINESS COMBINATIONS
SECTION 9.01. Except as provided in Section 9.02 hereof, the affirmative
vote of at least 80% of the Shareholders shall be required to approve any
Business Combination involving a Substantial Shareholder. Such affirmative vote
shall be required for any Business Combination notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified by law or in
any agreement with any national securities exchange or otherwise. As used in
this Article IX, the term Business Combination shall mean:
(a) any merger or consolidation of the Corporation or any subsidiary
of the Corporation with (i) any Substantial Shareholder or (ii) any other
Person (whether or not itself a Substantial Shareholder) which is, or after
such merger or consolidation would be, a Substantial Shareholder or an
Affiliate of a Substantial Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with any
Substantial Shareholder, or any Affiliate of any Substantial Shareholder,
of any assets of the Corporation or any subsidiary having an aggregate fair
market value of $1,000,000 or more; or
(c) the issuance or transfer by the Corporation or any subsidiary (in
one transaction or a series of transactions) of any Securities of the
Corporation or any subsidiary of any Substantial Shareholder or any
Affiliate of any Substantial Shareholder in exchange for cash, Securities
or other property (or a combination thereof) having an aggregate fair
market value of $1,000,000 or more; or
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of a Substantial
Shareholder or any Affiliate of any Substantial Shareholder; or
-8-
<PAGE>
(e) any reclassification of Securities (including any reverse stock
split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any subsidiary or any other
transaction (whether or not with or into or otherwise involving a
Substantial Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding Shares or Securities
of the Corporation or any subsidiary which is directly or indirectly owned
by any Substantial Shareholder or any Affiliate of any Substantial
Shareholder.
SECTION 9.02. Section 9.01 of this Article shall not apply to a Business
Combination if (A) the Business Combination is approved by a vote of
three-fourths of the Continuing Directors, (B) the Business Combination consists
of the issuance or transfer by the Corporation of Shares of its common stock in
exchange for a partnership interest in Duke Realty Limited Partnership, an
Indiana limited partnership, or Duke Realty Services Limited Partnership, an
Indiana limited partnership, or any successor in interest to either such limited
partnership or (C) the Substantial Shareholder shall have complied with the
provisions of this Section 9.02 of this Article and all Shareholders of the
Corporation shall have been given a reasonable opportunity immediately before
the consummation of the Business Combination to receive in the Business
Combination, or the right to receive as a result of or in the Business
Combination cash, cash and other consideration or other consideration, the per
Share fair market value of which will not, at the time the Business Combination
is effected, together with any cash, be less than the greatest of: (i) the
highest price per Share (including brokerage commissions, soliciting dealers'
fees and all other expenses) paid by the Substantial Shareholder in acquiring
any of its Shares of the Corporation of the same class; (ii) the per Share book
value of the same class of the Corporation's Shares at the time the Business
Combination is effected, determined by such independent appraisal firm or their
experts as the Board of Directors deem appropriate; (iii) the highest sale or
bid price per Share for the Shares of the same class during the 24 months
immediately preceding the time the Business Combination is effected; and (iv) an
amount which bears the same or a greater percentage relationship to the market
price of the same class of the Corporation's Shares immediately prior to the
announcement of the Business Combination as the highest per Share price paid in
(i) above bore to the market price of the same class of the Corporation's Shares
immediately prior to the commencement of acquisition of the Corporation's
Shares by such Substantial Shareholder. The consideration to be received by
holders of outstanding Shares under this Section 9.02 shall be in cash or in the
same form as the Substantial Shareholder has previously paid for such Shares.
If the Substantial Shareholder has paid for Shares with varying forms of
consideration, the form of
-9-
<PAGE>
consideration for Shares acquired under this Section 9.02 shall be either cash
or the form used to acquire the largest number of Shares previously acquired by
such Substantial Shareholder.
SECTION 9.03. RESTRICTIONS ON CORPORATE ACTION. Without the approval of
three-fourths of the Continuing Directors, a Substantial Shareholder, after the
time it became such, seeking to comply with Section 9.02 of this Article shall
not have (i) made any material change in the Corporation's business or capital
structure, (ii) received the benefit directly or indirectly (except
proportionately as a Shareholder) of any loans, advances, guarantees, pledges or
other financial assistance provided by the Corporation, or (iii) made, caused or
brought about, directly or indirectly, any change in the Corporation's Articles
or By-Laws or in the membership of the Corporation's Board of Directors of any
committee thereof, or (iv) terminated the Corporation's agreement with the
Advisor.
SECTION 9.04. A majority of the Whole Board shall have the power to
determine, but only if a majority of the Whole Board shall then consist of
Continuing Directors, or, if a majority of the Whole Board shall not then
consist of Continuing Directors, a majority of the Continuing Directors shall
have the power to determine, for the purposes of this Article on the basis of
information known to them, (i) the number of Shares of the Corporation of which
any Person is the Owner, (ii) whether a Person is an Affiliate of another, and
(iii) any other factual matter relating to the applicability or effect of this
Article.
SECTION 9.05. Any determinations made by the Board of Directors, or by the
Continuing Directors, as the case may be, pursuant to this Article in good faith
and on the basis of such information and assistance as was then reasonably
available for such purpose, shall be conclusive and binding upon this
Corporation and its shareholders, including any Substantial Shareholders.
SECTION 9.06. Notwithstanding any provision of this Article IX to the
contrary, no Substantial Shareholder shall consummate any Business Combination
unless such Substantial Shareholder shall have mailed to public Shareholders of
the Corporation, at least 30 days prior to the date of such consummation, a
proxy or information statement describing the proposed Business Combination,
which statement shall comply with the Act and the Rules and Regulations
thereunder or any successor statute or regulation, whether or not such proxy or
information statement is required to be mailed pursuant to such Act, rules or
regulations or subsequent provisions.
SECTION 9.07. Nothing contained in this Article shall be construed to
relieve any Substantial Shareholder from any fiduciary obligation imposed by
law.
-10-
<PAGE>
ARTICLE X
REFUSAL TO TRANSFER SHARES, ACQUISITION
RESTRICTION AND OTHER RESTRICTIONS ON RIGHTS OF SHARES
SECTION 10.01. The Shareholders shall upon demand disclose to the
Directors in writing such information with respect to direct and indirect
ownership of the Shares as the Directors deem necessary or appropriate to comply
with the REIT provisions of the Code or to comply with the requirements of any
taxing authority or governmental agency.
SECTION 10.02. Whenever it is deemed by them to be reasonably necessary to
protect the status of the Corporation as a REIT, the Directors may require a
statement or affidavit from each Shareholder or proposed transferee of Shares
setting forth the number of Shares already owned by him and any related Person
specified in the form prescribed by the Directors for that purpose. If, in the
opinion of the Directors, which shall be conclusive upon any proposed transferee
of Shares, any proposed transfer might jeopardize the status of the Corporation
as a REIT, the Directors shall have the right, but not the duty, to refuse to
permit such transfer.
SECTION 10.03. Notwithstanding any other provision of these Articles to
the contrary, any purported acquisition of Shares of the Corporation which would
result in the disqualification of the Corporation as a REIT shall be null and
void.
SECTION 10.04. Nothing contained in these Articles shall limit the
authority of the Directors to take such other action as they deem necessary or
advisable to protect the Corporation and the interests of the Shareholders by
preservation of the Corporation's status as a REIT.
SECTION 10.05. It shall be the policy of the Directors to consult with the
appropriate officials of any stock exchange on which the relevant Shares of the
Corporation are listed as far as reasonably possible in advance of the final
exercise (at any time when the Shares are listed on such exchange) of any powers
granted by Sections 10.02 or 10.03.
SECTION 10.06. In furtherance of the provisions of this Article X, each
certificate evidencing Shares shall contain a legend imprinted thereon to the
following effect, or such other legend as the Directors may from time to time
adopt:
-11-
<PAGE>
STATEMENT OF POWERS;
PROVISIONS RELATING TO PROHIBITION OF
TRANSFER OF SHARES AND OTHER RESTRICTIONS
"If necessary to effect compliance by the Corporation with
requirements of the Internal Revenue Code relating to real estate
investment trusts, rights of the holder of the Shares represented by this
certificate may be restricted by the Corporation and/or the transfer
thereof may be prohibited upon the terms and conditions set forth in the
Articles of Incorporation. The Corporation will furnish a copy of such
terms and conditions and a statement of all the powers, designations,
participating, optional or other special rights of each class of stock
issued by the Corporation and the qualifications, limitations or
restrictions of such preferences and/or rights, to the registered holder of
this certificate upon request and without charge."
ARTICLE XI
AMENDMENT OF BY-LAWS
The Shareholders or the Directors may, by a majority vote, amend or repeal
any provision of the By-Laws.
ARTICLE XII
AMENDMENT OR REPEAL
Notwithstanding any other provision of these Articles or the By-Laws of the
Corporation (and not withstanding the fact that a lesser percentage may be
specified by these Articles or the By-Laws of the Corporation) and in addition
to any other procedure specified under Indiana law, the affirmative vote of at
least eighty percent (80%) of the issued and outstanding Shares of the
Corporation shall be required to repeal or adopt any provision inconsistent with
Articles IX, X, XI and XII, or Sections 7.01, 7.02, 7.03, and 8.03, hereof.
With respect to any other proposed amendment to or alteration of these Articles
not approved by the vote of three-quarters of the Directors, such amendment or
alteration shall require the affirmative vote of at least eighty percent (80%)
of the issued and outstanding Shares.
-12-
<PAGE>
ARTICLE XIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 13.01. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS. A Director
of the Corporation shall not be personally liable to the Corporation or its
Shareholders for monetary damages for breach of fiduciary duty as a Director,
except for liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its shareholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
IND. CODE Section 23-1-35-4, or (iv) for any transaction from which the Director
derived an improper personal benefit.
SECTION 13.02. INDEMNIFICATION AND INSURANCE.
(a) RIGHT TO INDEMNIFICATION. Each Person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a Person
of whom he or she is the legal representative, is or was a Director or officer
of the Corporation or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a Director, officer, employee or agent or in any
other capacity while serving as a Director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Indiana Business Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such Person in connection
therewith and such indemnification shall continue as to a Person who has ceased
to be a Director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators: PROVIDED, HOWEVER, that, except
as provided in paragraph (b) hereof, the Corporation shall indemnify any such
Person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such Person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section 13.02 shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition: PROVIDED,
HOWEVER, that, if the Indiana Business Corporation Law requires, the payment of
such expenses incurred by a Director or officer in his or her capacity as a
-13-
<PAGE>
Director or officer (and not in any other capacity in which service was or is
rendered by such Person while a Director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director or
officer is not entitled to be indemnified under this Section 13.02 or otherwise.
The Corporation may, by action of its Board of Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of Directors and officers.
(b) RIGHT OF CLAIMANT TO BRING SUIT. If a claim under paragraph (a) of
this Section 13.02 is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Indiana Business Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
Shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Indiana Business Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
Shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met such applicable standard of conduct.
(c) NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 13.02 shall not be exclusive of any other
right which any Person may have or hereafter acquire under any statute,
provision of these Articles, by-law, agreement, vote of Shareholders or
disinterested Directors or otherwise.
(d) INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any Director, officer,
-14-
<PAGE>
employee or agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such Person
against such expense, liability or loss under the Indiana Business Corporation
Law.
ARTICLE XIV
SEVERABILITY
In the event that any Article or Section (or portion thereof) of these
Articles shall be found to be invalid, prohibited or unenforceable for any
reason, the remaining provisions, or portion thereof, of these Articles shall be
deemed to remain in full force and effect, and shall be construed as if such
invalid, prohibited or unenforceable provision had been stricken herefrom or
otherwise rendered inapplicable, it being the intent of this Corporation and its
Shareholders that each such remaining provision (or portion thereof) of these
Articles remain, to the fullest extent permitted by law, applicable and
enforceable as to all Shareholders, including Substantial Shareholders,
notwithstanding any such findings.
ARTICLE XV
INCORPORATOR
The name and mailing address of the sole incorporator are:
John W. Wynne
8888 Keystone Crossing, Suite 1150
Indianapolis, Indiana 46240-2438
-15-
<PAGE>
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
DUKE REALTY INVESTMENTS, INC.
ARTICLE I
IDENTIFICATION
SECTION 1.01. NAME. The name of the Corporation is Duke Realty
Investments, Inc. (hereinafter referred to as the "Corporation").
SECTION 1.02. REGISTERED OFFICE AND REGISTERED AGENT. The street address
of the registered office of the Corporation is 8888 Keystone Crossing, Suite
1150, Indianapolis, Indiana 46240; and the name of its Registered Agent at such
address is John W. Wynne. The location of the registered office of the
Corporation or the designation of its Registered Agent or both may be changed at
any time or from time to time when authorized by the Board of Directors, by
filing a notice of change with the Secretary of State of the State of Indiana on
or before the day any such change is to take effect, or as soon as possible
after the death of the Registered Agent or other unforeseen termination of his
agency.
SECTION 1.03. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors of the Corporation.
ARTICLE II
DEFINITIONS
SECTION 2.01. CERTAIN DEFINITIONS. The following terms when used herein
shall have the meanings set forth below:
(a) AFFILIATE. "Affiliate" shall mean, as to any Person, (i) any
other Person directly or indirectly controlling, controlled by or under
common control with such Person, (ii) any other Person that owns
beneficially, directly or indirectly, five percent (5%) or more of the
outstanding capital stock, shares or equity interests of such Person, or
(iii) any officer, director, employee, general partner or trustee of such
Person or of any Person
<PAGE>
controlling, controlled by or under common control with such Person
(excluding trustees and Persons serving in similar capacities who are not
otherwise an Affiliate of such Person), and shall have the meaning
ascribed thereto in the Securities Exchange Act of 1934.
(b) ARTICLES. "Articles" shall mean the Articles of Incorporation
of the Corporation, filed with the Indiana Secretary of State, as amended
from time to time.
(c) BY-LAWS. "By-Laws" shall mean the By-Laws of the Corporation,
as amended from time to time.
(d) CODE. "Code" shall mean the Internal Revenue Code of 1986, as
amended or supplemented from time to time.
(e) CORPORATION. The "Corporation" shall mean Duke Realty
Investments, Inc.
(f) DIRECTOR. "Director" shall mean a member of the Corporation's
Board of Directors.
(g) FISCAL YEAR. "Fiscal Year" or any term describing any part
thereof (such as "fiscal quarter") shall mean the fiscal year of the
Corporation.
(h) GENDER AND NUMBER. As used herein the masculine and feminine
gender and the singular and plural number shall be interchangeable, as the
context requires.
(i) PERSON. "Person" shall mean an individual, partnership, trust,
corporation, or any other entity.
(j) REIT. "REIT" or "real estate investment trust" shall mean a
real estate investment trust meeting all the qualifications in the Code.
(k) SHAREHOLDERS. "Shareholders" shall mean as of any particular
time all holders of record of outstanding Shares at such time.
(l) SHARES. "Shares" shall mean the common stock of the
Corporation.
(m) UNAFFILIATED DIRECTOR. "Unaffiliated Director" shall mean a
Director who is not an officer or employee of the Corporation or of any
Affiliate of the Corporation.
2
<PAGE>
ARTICLE III
CAPITAL STOCK
SECTION 3.01. CERTIFICATES. Ownership of Shares shall be evidenced by
certificates. Every Shareholder shall be entitled to receive a certificate in
such form as the Directors shall from time to time approve, specifying the
number of Shares of the applicable class held by such Shareholder. Unless
otherwise determined by the Directors, such certificates shall be signed by the
Chairman or the President and the Secretary or any Assistant Secretary and shall
be countersigned by a transfer agent, and registered by a registrar, if any, and
such signatures may be facsimile signatures. There shall be filed with each
transfer agent a copy of the form of certificate so approved by the Directors,
certified by the Chairman, President, or Secretary, and such form shall continue
to be used unless and until the Directors approve some other form.
SECTION 3.02. FRACTIONAL SHARES. In connection with any issuance of
Shares, the Directors may issue fractional Shares or may provide for the
issuance of scrip including, without limitation, the time within which any scrip
must be surrendered for exchange into full Shares and the rights, if any, of
holders of scrip upon the expiration of the time so fixed, the rights, if any,
to receive proportional distributions, and the rights, if any, to redeem scrip
for cash, or the Directors may in their discretion, or if they see fit at the
option of each holder, provide in lieu of scrip for the adjustment of the
fractions in cash. The provisions of Section 3.01 hereof relative to
certificates for Shares shall apply so far as applicable to such scrip, except
that such scrip may in the discretion of the Directors be signed by a transfer
agent alone.
SECTION 3.03. SHARE RECORD; ISSUANCE AND TRANSFERABILITY OF SHARES.
Records shall be kept by or on behalf of and under the directions of the
Directors, which shall contain the names and addresses of the Shareholders, the
number of Shares held by them respectively, and the numbers of the certificates
representing the Shares, and in which there shall be recorded all transfers of
Shares. The Corporation, the Directors and the officers, employees and agents
of the Corporation shall be entitled to deem the Persons in whose names
certificates are registered on the records of the Corporation to be the absolute
owners of the Shares represented thereby for all purposes; but nothing herein
shall be deemed to preclude the Directors or officers, employees or agents of
the Corporation from inquiring as to the actual ownership of Shares. Until a
transfer is duly effected on the records of the Corporation, the Directors shall
not be affected by any notice of such transfer, either actual or constructive.
3
<PAGE>
Shares shall be transferable on the records of the Corporation only by the
record holder thereof or by his agent thereunto duly authorized in writing upon
delivery to the Directors or a transfer agent of the certificate or certificates
therefor, properly endorsed or accompanied by duly executed instruments of
transfer and accompanied by all necessary documentary stamps together with such
evidence of the genuineness of each such endorsement, execution or authorization
and of other matters as may reasonably be required by the Directors or such
transfer agent. Upon such delivery, the transfer shall be recorded in the
records of the Corporation and a new certificate for the Shares so transferred
shall be issued to the transferee and in case of a transfer of only a part of
the Shares represented by any certificate, a new certificate for the balance
shall be issued to the transferor. Any Person becoming entitled to any Shares
in consequence of the death of a Shareholder or otherwise by operation of law
shall be recorded as the holder of such Shares and shall receive a new
certificate therefor but only upon delivery to the Directors or a transfer agent
of instruments and other evidence required by the Directors or the transfer
agent to demonstrate such entitlement, the existing certificate for such Shares
and such releases from applicable governmental authorities as may be required by
the Directors or transfer agent. In case of the loss, mutilation or destruction
of any certificate for Shares, the Directors may issue or cause to be issued a
replacement certificate upon proof, satisfactory to the Directors of ownership
of such lost, mutilated or destroyed certificate. Nothing in these By-Laws
shall impose upon the Directors or a transfer agent a duty or limit their rights
to inquire into adverse claims.
SECTION 3.04. TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND REGISTER.
The Directors shall have power to employ one or more transfer agents, dividend
disbursing agents and registrars and to authorize them on behalf of the
Corporation to keep records and to hold and to disburse any dividends or
distributions.
SECTION 3.05. RECORD DATE. The Board of Directors may fix a record date,
which shall not be more than seventy (70) nor less than ten (10) days before the
date of any meeting of Shareholders. If a Shareholders' meeting is adjourned to
a date more than one hundred twenty (120) days after the date fixed for the
original meeting, a new record date must be fixed.
SECTION 3.06. REPORTS TO SHAREHOLDERS. Not later than ninety (90) days
after the close of each fiscal year of the Corporation, the Directors shall mail
a report of the business and operations of the Corporation to the Shareholders,
containing an audited balance sheet and a statement of income of the Corporation
accompanied by an opinion of an independent certified
4
<PAGE>
public accountant. A signed copy of the accountant's opinion shall be filed
with the Directors.
The Corporation will also mail to the Shareholders, within sixty-five (65)
days after the end of each fiscal quarter, quarterly reports containing
unaudited financial information for each of the first three quarters of each
fiscal year.
SECTION 3.07. REGULATIONS. The issue, transfer, conversion and
registration of certificates for Shares shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE IV
MEETINGS OF SHAREHOLDERS
SECTION 4.01. EFFECT OF QUORUM. The Shareholders present at a duly
called or held meeting at which a quorum is present may not continue to do
business after the withdrawal of enough Shareholders to leave less than a
quorum.
SECTION 4.02. PLACE OF MEETING. Meetings of the Shareholders shall be
held at the principal office of the Corporation or at such place within or
without the State of Indiana as is designated by the Directors or the Chairman
or President.
SECTION 4.03. ANNUAL MEETING. A regular annual meeting of the
Shareholders shall be called by the Chairman or President within six months
after the end of each fiscal year.
SECTION 4.04. NOTICE OF REGULAR OR SPECIAL MEETINGS. Written notice
specifying the place, day and hour of any regular or special meeting, the
purposes of the meeting, and all other matters required by law shall be given to
each Shareholder of record entitled to vote, either personally or by sending a
copy thereof by mail or telegraph, charges prepaid, to his address appearing on
the books of the Corporation or theretofore given by him to the Corporation for
the purpose of notice or, if no address appears or has been given, addressed to
the place where the principal office of the Corporation is situated. It shall
be the duty of the Secretary to give notice of each Annual Meeting of the
Shareholders at least fifteen (15) days and not more than sixty (60) days before
the date on which it is to be held, subject to any longer notice period required
by law. Whenever an officer has been duly requested to call a special meeting
of Shareholders, it shall be his duty to fix the date and hour thereof, which
date shall be not less than twenty (20) days and not more than sixty (60) days
after the receipt of such request if the request has been delivered in person or
after the date of mailing the request, as the case may be, and to give notice of
5
<PAGE>
such special meeting within ten (10) days after receipt of such request. If the
date of such special meeting is not so fixed and notice thereof given within ten
(10) days after the date of receipt of the request, the date and hour of such
meeting may be fixed by the Person or Persons calling or requesting the meeting
and notice thereof shall be given by such Person or Persons not less than twenty
20) nor more than sixty (60) days before the date on which the meeting is to be
held.
SECTION 4.05. NOTICE OF ADJOURNED MEETINGS. It shall not be necessary to
give notice of the time and place of any adjourned meeting or of the business to
be transacted thereat other than by announcement at the meeting at which such
adjournment is taken, except that when a meeting is adjourned and a new record
date is set, notice of the adjourned meeting shall be given as in the case of an
original meeting to Shareholders as of the new record date.
SECTION 4.06. PROXIES. The appointment of a proxy or proxies shall be
made by an instrument in writing executed by the Shareholder or his duly
authorized agent and filed with the Secretary of the Corporation. No proxy
shall be valid after the expiration of eleven (11) months from the date of its
execution. At a meeting of Shareholders all questions concerning the
qualification of voters, the validity of proxies, and the acceptance or
rejection of votes, shall be decided by the Secretary of the meeting unless
inspectors of election are appointed pursuant to Section 4.07 in which event
such inspectors shall pass upon all questions and shall have all other duties
specified in said section.
SECTION 4.07. INSPECTORS OF ELECTION. In advance of any meeting of
Shareholders, the Directors may appoint inspectors of election to act at the
meeting or any adjournment thereof. If inspectors of election are not so
appointed, the Chairman of any meeting of Shareholders may, and on the request
of any Shareholder or his proxy shall, appoint inspectors of election at the
meeting. The number of inspectors shall be either one or three. If appointed
at the meeting on the request of one or more Shareholders or proxies, a majority
of Shares present shall determine whether one or three inspectors are to be
appointed. In case any Person appointed as inspector fails to appear or fails
or refuses to act, the vacancy may be filled by appointment made by the
Directors in advance of the convening of the meeting or at the meeting by the
Chairman of the meeting. The inspectors of election shall determine the number
of Shares outstanding, the Shares represented at the meeting, the existence of a
quorum, and the authenticity, validity and effect of proxies, receive votes,
ballots, or consents, hear and determine all challenges and questions in any way
arising in connection with the right to vote, count and tabulate all votes or
consents, determine the results, and do such acts as may be proper to conduct
the
6
<PAGE>
election or vote with fairness to all Shareholders. If there are three
inspectors of election, the decision, act or certificate of a majority is
effective in all respects as the decision, act or certificate of all. On
request of the Chairman of the meeting or of any Shareholder or his proxy, the
inspectors shall make a report in writing of any challenge, question or matter
determined by them and execute a certificate of any facts found by them.
SECTION 4.08. QUORUM. At any meeting of the Shareholders, the holders of
a majority of the Shares entitled to vote with respect to the matter under
consideration, present in person or by proxy, shall constitute a quorum for such
purpose, unless or except to the extent that the presence of a larger number may
be required by law.
If a quorum for any purpose shall fail to attend any meeting, the Chairman
of the meeting or the holders of a majority of the Shares entitled to vote who
are present, in person or by proxy, may adjourn the meeting to another place,
date, or time.
If a notice of any adjourned special meeting of Shareholders is sent to
all Shareholders entitled to vote thereat, stating that it will be held with
those present constituting a quorum, then except as otherwise required by law,
those present at such adjourned meeting shall constitute a quorum.
ARTICLE V
THE BOARD OF DIRECTORS
SECTION 5.01. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such place or places, on such date or dates, and at
such time or times as shall have been established by the Board of Directors and
publicized among all Directors. A notice of each regular meeting shall not be
required.
SECTION 5.02. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by one-third of the Directors then in office (rounded up
to the nearest whole number), by the Chairman of the Board or by the President
and shall be held at such place, on such date, and at such time as they or he or
she shall fix. Written notice of any special meeting of the Board shall be
given to each Director at least one day prior thereto delivered personally, by
messenger or by telegram or at least five days prior thereto delivered by mail
at the last address given by the Director to the Corporation for such purpose.
Such notice shall be deemed delivered when deposited in the United States mail
so addressed, with postage thereon prepaid, if mailed, or when delivered to the
telegram company if sent by telegram. Such notice shall be deemed to be
delivered upon
7
<PAGE>
receipt by the Director if delivered personally or by messenger. Any Director
may waive notice of any meeting by a writing filed with the Secretary. The
attendance of a Director at a meeting shall constitute a waiver of notice of
such meeting, except in the event a Director attends a meeting for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any meeting of the Board need be specified in the notice or
waiver of notice of such meeting.
SECTION 5.03. COMPENSATION AND OTHER REMUNERATION. Each Director shall
be paid such director's fees and fixed sums and expenses for attendance at each
annual, regular or special meeting of the Board of Directors or committees of
the Board of Directors as the Board of Directors by resolution so determines.
The Directors and Corporation officers shall be entitled to receive remuneration
for services rendered to the Corporation in any other capacity. Such services
may include, without limitation, services as an officer of the Corporation,
legal, accounting or other professional services, or services as a broker,
transfer agent or underwriter, whether performed by a Director or any Affiliate
of a Director.
SECTION 5.04. ACTIONS BY DIRECTORS. The Directors may act with or
without a meeting. Unless specifically provided otherwise in these By-Laws or
in the Articles, any action of the Directors may be taken at a meeting by vote
of a majority of the Directors present (a quorum being present) or without a
meeting by unanimous written consent of the Directors, which consents shall be
filed with the records of meetings of the Directors. Any action or actions
permitted to be taken by the Directors in connection with the business of the
Corporation may be taken pursuant to authority granted by a meeting of the
Directors conducted by a telephone conference call, and the transaction of
Corporation business represented thereby shall be of the same authority and
validity as if transacted at a meeting of the Directors held in person or by
written consent. The minutes of the Directors' meeting held by telephone shall
be prepared in the same manner as a meeting of the Directors held in person.
SECTION 5.05. ACTIONS BY UNAFFILIATED DIRECTORS. The following actions
may only be taken by, or with approval of a majority of, the Unaffiliated
Directors:
(a) A restructuring of Duke Realty Services Limited Partnership, an
Indiana limited partnership, as provided for in Section 4.15 of the
Agreement of Limited Partnership of Duke Realty Services Limited
Partnership (the "Services Partnership Agreement").
(b) The Corporation's approval of an exercise of any option held by
Duke Realty Limited Partnership, an Indiana
8
<PAGE>
limited partnership (the "Operating Partnership"), for its purchase of
the Principal Owners' interest in any of the Excluded Businesses or any
of the twenty-five (25) specific properties (the "Excluded Properties")
or the indirect interest of the Principal Owners in such properties,
subject to certain option agreements, each of which has been denominated
"Acquisition Option" (the "Acquisition Options") with owners of the
Excluded Businesses or the Excluded Properties or the indirect interests
therein.
(c) The Corporation's consent pursuant to each of the Acquisition
Options to an increase in the mortgage debt applicable to any Excluded
Property.
(d) The Corporation's consent pursuant to Section 7.02 of the
Agreement of Limited Partnership of Duke Realty Limited Partnership (the
"Operating Partnership Agreement") to the Assignment (as defined in
Section 1.04 of the Operating Partnership Agreement) of any units of
partnership interest in the Operating Partnership ("Units") by any of
Gary A. Burk, Michael Coletta, Thomas L. Hefner, David R. Mennel, Daniel
C. Staton, John W. Wynne, and Darell E. Zink, Jr. (together, the
"Principal Owners").
(e) The Corporation's consent pursuant to Section 3(l) of a certain
Purchase Agreement by and among the Principal Owners, the Corporation and
the underwriters named therein to certain dispositions of Units or any
shares of the Corporation's Common Stock.
(f) The voting of Operating Partnership Units owned by the
Corporation in order for the Corporation to engage in any of the
activities referred to in Section 3.09(a) or Section 3.09(b) of the
Operating Partnership Agreement.
(g) The exercise of the Corporation's option to purchase the
interests of DMI Partnership, an Indiana partnership, pursuant to
Section 7.03 of the Services Partnership Agreement or any successor
provision.
(h) The Corporation's decision to enforce or to waive enforcement of
a provision of the Property Contribution Agreements, the Insider
Contribution Agreement or the Outsider Contribution Agreement.
SECTION 5.06 QUARTERLY MEETINGS. The Board of Directors shall meet
during the forty-five (45) day period immediately following the close of each
fiscal quarter of the Corporation for the purpose of (a) considering the value
of the Corporation's assets and reviewing the income of the Corporation with a
view to
9
<PAGE>
assuring the Corporation's continued qualification as a "real estate investment
trust" and (b) transacting such other business as properly may come before the
meeting. Such quarterly meeting may be combined with the annual meeting or any
special meeting of the Directors.
SECTION 5.07. CONDUCT OF COMMITTEE MEETINGS. Each committee may
determine the procedural rules for meeting and conducting its business and shall
act in accordance therewith, except as otherwise provided herein or required by
law. Adequate provision shall be made for notice to members of all meetings.
Unless otherwise specified by the Board of Directors, one-third of the members
shall constitute a quorum unless the committee shall consist of one or two
members, in which event one member shall constitute a quorum; and all matters
shall be determined by a majority vote of the members present. Action may be
taken by any committee without a meeting if all members thereof consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceedings of such committee.
SECTION 5.08. NUMBER OF DIRECTORS AND CLASSIFICATION OF BOARD OF
DIRECTORS. The number of Directors shall be eleven (11). The members of the
Board of Directors are hereby divided into three (3) classes, the members of the
first of which classes shall serve until the annual meeting of the Corporation's
Shareholders to be held in 1994 (or until their successors are duly elected and
qualified) ("Class I"), the members of the second of which classes shall serve
until the annual meeting of the Corporation's Shareholders to be held in 1995
(or until their successors are duly elected and qualified) ("Class II"), the
members of the third of which classes shall serve until the annual meeting of
the Corporation's Shareholders to be held in 1996 (or until their successors are
duly elected and qualified) ("Class III"), as follows:
CLASS I
Howard L. Feinsand
Philip A. Nicely
Daniel C. Staton
Jay J. Strauss
CLASS II
Geoffrey Button
John D. Peterson
Dr. Sydney C. Reagan
Darell E. Zink, Jr.
CLASS III
Thomas L. Hefner
Lee Stanfield
John W. Wynne
10
<PAGE>
SECTION 5.09. CONFLICT OF INTEREST. Any transaction with the
Corporation in which a Director has a direct or indirect interest is subject to
review by the disinterested directors to ensure that the terms are commensurate
with the terms for similar services or products with third parties in the market
place.
ARTICLE VI
OFFICERS OF THE CORPORATION
SECTION 6.01. ENUMERATION. The officers of the Corporation shall be a
President, a Secretary, a Treasurer, and such other officers as are elected by
the Directors including, in their discretion, a Chairman of the Board, with such
duties as are assigned to them by the Directors. Officers shall be elected by
and shall hold office at the pleasure of the Directors. When the duties do not
conflict, any two or more offices, except those of Chairman and Secretary or
President and Secretary, may be held by the same person.
SECTION 6.02. POWERS AND DUTIES OF THE CHAIRMAN. The Chairman, if there
shall be such an officer, shall, if present, preside at all meetings of the
Shareholders and the Directors and may be the chief executive officer of the
Corporation if the Directors so elect.
SECTION 6.03. POWERS AND DUTIES OF THE PRESIDENT. The President shall,
subject to the control of the Directors and the supervisory powers, if any,
given by the Directors to the Chairman, have general supervision, direction and
control of the business of the Corporation and its employees and shall exercise
such general powers of management as are usually vested in the office of
president of a corporation. In the absence of the Chairman, or if there be no
Chairman, the President shall preside at all meetings of the Shareholders and/or
Directors and shall be chief executive officer of the Corporation. He shall be,
ex officio, a member of all standing committees.
SECTION 6.04. POWERS AND DUTIES OF VICE-PRESIDENT. Each Vice-President,
if any, designated by the Directors shall be an administrative officer of the
Corporation and have such duties as are designated by the President or the
Directors. One or more Assistant Vice Presidents may be appointed and shall
have such duties as are designated by the President or the Board of Directors.
SECTION 6.05. DUTIES OF THE SECRETARY. The Secretary shall:
(a) MINUTES. Keep full and complete minutes of the meetings (or
actions in lieu thereof) of the Directors,
11
<PAGE>
any committees of the Directors and the Shareholders and give notice, as
required, of all such meetings;
(b) SEAL. Keep the seal of the Corporation and affix the same to
all instruments executed by the Corporation which require it;
(c) BOOKS AND OTHER RECORDS. Maintain custody of and keep the books
of account and other records of the Corporation except such as are in the
custody of the Treasurer;
(d) SHARE REGISTER. Maintain at the principal office of the
Corporation a share register, showing the ownership and transfers of
ownership of all shares of the Corporation, unless a transfer agent is
employed to maintain and does maintain such a share register; and
(e) GENERAL DUTIES. Generally, perform all duties which pertain to
his office and which are required by the Directors.
An Assistant Secretary or Secretaries may be appointed to act in the
absence of the Secretary.
SECTION 6.06. DUTIES OF THE TREASURER. The Treasurer shall perform all
duties which pertain to his office and which are required by the Directors,
including without limitation the receipt, deposit and disbursement of funds
belonging to the Corporation.
An Assistant Treasurer or Treasurers may be appointed to act in the
absence of the Treasurer.
ARTICLE VII
CONTRACTS, CHECKS, NOTES, ETC.
SPECIAL CORPORATE ACTS
SECTION 7.01. All contracts and agreements entered into by the
Corporation and all checks, drafts and bills of exchange, orders for the payment
of money, and deeds, mortgages, notes or bonds of the Corporation shall, unless
otherwise directed by the Board of Directors or unless otherwise required by
law, be signed by either the President, any Vice President or the Secretary,
singly.
12
<PAGE>
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. FACSIMILE SIGNATURES. Facsimile signatures of any officer
or officers of the corporation may be used whenever and as authorized by the
Board of Directors or a committee thereof.
SECTION 8.02. CORPORATE SEAL. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
the charge of the Secretary. If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 8.03. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each Director,
each member of any committee designated by the Board of Directors, and each
officer of the Corporation shall, in the performance of his duties, be protected
to the fullest possible extent in relying in good faith upon the books of
account or other records of the Corporation, including reports made to the
Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
SECTION 8.04. SEVERABILITY.
(a) The provisions of these By-Laws are severable, and if the Directors
shall determine, with the advice of counsel, that any one or more of such
provisions (the "Conflicting Provisions") are in conflict with the REIT
provisions of the Code, or with other applicable Federal laws and regulations,
the Conflicting Provisions shall be deemed never to have constituted a part of
these By-Laws.
(b) If any provision of these By-Laws shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other provision of this Declaration, and these By-Laws shall be carried out
as if any such invalid or unenforceable provision were not contained herein.
SECTION 8.05. AMENDMENT. The Shareholders or the Directors may, by a
majority vote, amend or repeal any provision of these By-Laws, except that
Section 5.05 hereof can only be amended or repealed by a majority vote of the
Shareholders or the Unaffiliated Directors.
13
<PAGE>
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
July 27, 1995
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Investments, Inc., an Indiana
corporation (the "Company"), and Duke Realty Limted Partnership, an Indiana
limited Partnership (the "Partnership"), in connection with the shelf
registration by the Company and the Partnership of $360,000,000 in maximum
aggregate offering price of (i)shares of the Company's Common Stock, par value
$.01 per share (the "Common Stock"), (ii) shares of the Company's preferred
stock ("Preferred Stock"), (iii) shares of Preferred Stock represented by
depositary shares ("Depositary Shares") and (iv) debt securities of the
Partnership ("Debt Securities") which may be guaranteed by unconditional and
irrevocable guarantees thereof by the Company ("Guarantees"). The Common Stock,
Preferred Stock, Depositary Shares, Debt Securities and Guarantees are the
subject of a Registration Statement (the "Registration Statement") filed by the
Company and the Partnership on Form S-3 under the Securities Act of 1933, as
amended.
We have examined photostatic copies of the Company's Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws and of the
Partnership's Amended and Restated Agreement of Limited Partnership, and such
other documents and instruments as we have deemed necessary to enable us to
render the opinion set forth below. We have assumed the conformity to the
originals of all documents submitted to us as photostatic copies, the
authenticity of the originals of such documents, and the genuineness of all
signatures appearing thereon.
Based upon and subject to the foregoing, it is our opinion that:
(1) The Common Stock has been duly authorized by all necessary corporate action
of the Company and when (a) the applicable provisions of the Securities Act of
<PAGE>
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
July 27, 1995
Page 2
1933 and such state "blue sky" or securities laws as may be applicable have
been complied with and (b) the shares of Common Stock have been issued,
delivered, and paid for, such shares of Common Stock will be legally issued,
fully paid, and nonassessable.
(2) The Preferred Stock has been duly authorized by all necessary corporate
action of the Company and when (a) the applicable provisions of the Securities
Act of 1933 and such state "blue sky" or securities laws as may be applicable
have been complied with, (b) the Company's board of directors has adopted and
the Company has duly filed with the Indiana Secretary of State an amendment to
its amended and restated articles of incorporation establishing the preferences,
limitations and relative voting and other rights of each series of Preferred
Stock prior to issuance thereof and (c) the shares of Preferred Stock have been
issued, delivered, and paid for, such shares of Preferred Stock will be legally
issued, fully paid, and nonassessable.
(3) The Depositary Shares have been duly authorized by all necessary corporate
action of the Company and when (a) a deposit agreement substantially as
described in the Registration Statement has been duly executed and delivered by
the Company and a depositary, (b) the depositary receipts representing the
Depositary Shares in the form contemplated and authorized by such deposit
agreement have been duly executed and delivered by such depositary and
delivered to and paid for by the purchasers thereof in the manner contemplated
by the Registration Statement and/or the applicable prospectus supplement and
(c) all corporate action necessary for the issuance of such Depositary Shares
and the underlying Preferred Stock has been taken (including but not limited to
action establishing the preferences, limitations and relative voting and other
rights of such Preferred Stock prior to issuance thereof), such Depositary
Shares will be legally issued and will entitle the holders thereof to the
rights specified in the depositary receipts and the deposit agreement relating
to such Depositary Shares.
(4) The Debt Securities have been duly authorized by all necessary partnership
action of the Partnership and the Guarantees have been duly authorized by all
necessary corporate action of the Company and when (a) the applicable
provisions of the Securities Act of 1933 and such state "blue sky" or
securities laws as may be applicable have been complied with and (b) the Debt
Securities and, if applicable, Guarantees have been issued and delivered for
value as contemplated in the Registration Statement, such Debt Securities and
Guarantees will be legally issued and will be binding obligations of the
Partnership and the Company, respectively.
To the extent that the obligations of the Company under a deposit agreement
or the obligations of the Company as guarantor and the Operating Partnership as
obligor under an indenture may be dependent upon such matters, we have assumed
for purposes of this opinion (i) that the applicable depositary or trustee, as
the case may be, is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and is duly qualified to engage in
the activities contemplated by the applicable deposit agreement or indenture,
as the case may be, (ii) that such deposit agreement or indenture, as the case
may be, has been duly authorized, executed and delivered by and constitutes the
legal, valid and binding obligation of such depositary or trustee, as the case
may be, enforceable in accordance with its respective terms, (iii) that such
depositary or trustee, as the case may be, is in compliance, generally and with
respect to acting as a depositary or trustee, respectively, under the applicable
deposit agreement or indenture, with all applicable laws and regulations and
(iv) that such depositary or trustee has the requisite organizational and legal
power and authority to perform its obligations under the applicable deposit
agreement or indenture, as the case may be.
We do not hold ourselves out as being conversant with the laws of any
jurisdiction other than those of the United States and the State of Indiana
and, therefore, this opinion is limited to the laws of those jurisdictions.
<PAGE>
Duke Realty Investments, Inc.
Duke Realty Limited Partnership
July 27, 1995
Page 3
We consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-3 filed under the Securities Act of 1933 relating to the
Common Stock, Preferred Stock, Depositary Shares, Debt Securities and
Guarantees.
Very truly yours,
BOSE McKINNEY & EVANS
<PAGE>
EXHIBIT 12.1
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
------------- ---------------------------------------------------------------------------
1995 1994 1993 1992 1991 1990
------------- ------------- ---------------- ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Company:
Consolidated net income
(loss)................... $ 15,706,000 $ 26,216,000 $ 5,013,000 $ (653,000) $ (1,607,000) $ (571,000)
Gain on property sales.... -- (2,198,000) (517,000) (66,000) (226,000) (1,143,000)
DRLP minority interest.... 3,374,000 6,751,000 1,657,000 0 0 0
Amortization of deferred
financing costs.......... 585,000 1,251,000 294,000 184,000 173,000 172,000
Interest expense.......... 10,053,000 18,920,000 10,334,000 7,582,000 7,920,000 7,519,000
------------- ------------- ---------------- ------------ ------------- -------------
Earnings before fixed
charges.................. $ 29,718,000 $ 50,940,000 $ 16,781,000 $ 7,047,000 $ 6,260,000 $ 5,977,000
------------- ------------- ---------------- ------------ ------------- -------------
------------- ------------- ---------------- ------------ ------------- -------------
Interest expense.......... $ 10,053,000 $ 18,920,000 $ 10,334,000 $ 7,582,000 $ 7,920,000 $ 7,519,000
Amortization of deferred
financing costs.......... 585,000 1,251,000 294,000 184,000 173,000 172,000
Interest costs
capitalized.............. 1,334,000 1,681,000 0 0 0 0
------------- ------------- ---------------- ------------ ------------- -------------
Total fixed charges....... $ 11,972,000 $ 21,852,000 $ 10,628,000 $ 7,766,000 $ 8,093,000 $ 7,691,000
------------- ------------- ---------------- ------------ ------------- -------------
------------- ------------- ---------------- ------------ ------------- -------------
Ratio of earnings to fixed
charges.................. 2.48 2.33 1.58 0.91 0.77 0.78
------------- ------------- ---------------- ------------ ------------- -------------
------------- ------------- ---------------- ------------ ------------- -------------
Operating Partnership:
Consolidated net income
(loss)................... $ 19,029,000 $ 32,967,000 $ 7,660,000
Gain on property sales.... -- (2,198,000) (517,000)
Amortization of deferred
financing costs.......... 585,000 1,251,000 136,000
Interest expense.......... 10,053,000 18,920,000 4,605,000
------------- ------------- ----------------
Earnings before fixed
charges.................. $ 29,667,000 $ 50,940,000 $ 11,884,000
------------- ------------- ----------------
------------- ------------- ----------------
Interest expense.......... $ 10,053,000 $ 18,920,000 $ 4,605,000
Amortization of deferred
financing costs.......... 585,000 1,251,000 136,000
Interest costs
capitalized.............. 1,334,000 1,681,000 --
------------- ------------- ----------------
Total fixed charges....... $ 11,972,000 $ 21,852,000 $ 4,741,000
------------- ------------- ----------------
------------- ------------- ----------------
Ratio of earnings to fixed
charges.................. 2.48 2.33 2.51(1)
------------- ------------- ----------------
------------- ------------- ----------------
<FN>
- ------------------------
(1) Based on the operations of the Operating Partnership from formation
(October 4, 1993) to December 31, 1993.
</TABLE>
<PAGE>
EXHIBIT 23.1
The Board of Directors
Duke Realty Investments, Inc.:
We consent to the use of our reports on the consolidated financial
statements of Duke Realty Investments, Inc. and subsidiaries and the related
financial statement schedules as of December 31, 1994 and 1993 and for each of
the years in the three-year period ended December 31, 1994, which report appears
in the annual report on Form 10-K of Duke Realty Investments, Inc. We also
consent to the use of our report on the consolidated financial statements of
Duke Realty Limited Partnership as of December 31, 1994 and 1993 and for each of
the years in the three-year period ended December 31, 1994, which report appears
in the June 6, 1995 current report on Form 8-K of Duke Realty Investments, Inc.
Each of these reports is incorporated herein by reference. We also consent to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Indianapolis, Indiana
July 26, 1995
