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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): September 9, 1997
DUKE REALTY INVESTMENTS, INC.
(Exact name of registrant as specified in its charter)
Indiana 1-9044 35-1740409
(State or jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
8888 KEYSTONE CROSSING, SUITE 1200
INDIANAPOLIS, INDIANA 46240
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (317) 574-3531
Not applicable
(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
Exhibit
Number Exhibit
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1.1 U.S. Underwriting Agreement dated September 9, 1997, which is
being filed pursuant to Regulation S-K Item 601(b)(1) in lieu of
filing the otherwise required exhibit to the registration
statement on Form S-3 of the Registrant, file no. 333-26845,
under the Securities Act of 1933, as amended (the "Registration
Statement"), and which, as this Form 8-K filing is incorporated
by reference in the Registration Statement, is set forth in full
in the Registration Statement.
1.2 International Underwriting Agreement dated September 9, 1997,
which is being filed pursuant to Regulation S-K Item 601(b)(1) in
lieu of filing the otherwise required exhibit to the Registration
Statement, and which, as this Form 8-K filing is incorporated by
reference in the Registration Statement, is set forth in full in
the Registration Statement.
1.3 U.S. Terms Agreement dated September 9, 1997, which is being
filed pursuant to Regulation S-K Item 601(b)(1) in lieu of filing
the otherwise required exhibit to the Registration Statement, and
which, as this Form 8-K filing is incorporated by reference in
the Registration Statement, is set forth in full in the
Registration Statement.
1.4 International Terms Agreement dated September 9, 1997, which is
being filed pursuant to Regulation S-K Item 601(b)(1) in lieu of
filing the otherwise required exhibit to the Registration
Statement, and which, as this Form 8-K filing is incorporated by
reference in the Registration Statement, is set forth in full in
the Registration Statement.
8 Tax opinion of Bose McKinney & Evans, including consent, which is
being filed pursuant to Regulation S-K Item 601(b)(8) in lieu of
filing the otherwise required exhibit to the Registration
Statement and which, as this Form 8-K filing is incorporated by
reference in the Registration Statement, is set forth in full in
the Registration Statement.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DUKE REALTY INVESTMENTS, INC.
Date: September 10, 1997 By: /s/ Dennis D. Oklak
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Dennis D. Oklak
Vice President
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DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
Common Stock, Preferred Stock, Depositary Shares
and Debt Securities
U.S. UNDERWRITING AGREEMENT
September 9, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281-1305
Ladies and Gentlemen:
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 (the
"Common Stock"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock") and (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), with an aggregate public offering price of up to
$325,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). Duke Realty Limited Partnership (the "Operating
Partnership") may from time to time offer in one or more series unsecured debt
securities (the "Debt Securities"), with an aggregate principal amount of up to
$220,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares 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 Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Representatives,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable U.S. Terms Agreement (as hereinafter defined) as additional
co-managers with respect to U.S. Underwritten Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Company or the Operating Partnership determines to make
an offering of Securities through the Representatives or through an underwriting
syndicate managed by the Representatives, the Company or the Operating
Partnership, as the case may be, will enter into an agreement (the "U.S. Terms
Agreement")
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providing for the sale of such Securities (the "U.S. Underwritten
Securities") to, and the purchase and offering thereof by, the
Representatives and such other underwriters, if any, selected by the
Representatives as have authorized the Representatives to enter into such
U.S. Terms Agreement on their behalf (the "U.S. Underwriters," which term
shall include the Representatives whether acting alone in the sale of the
U.S. Underwritten Securities or as a member of an underwriting syndicate and
any U.S. Underwriter substituted pursuant to Section 10 hereof). The U.S.
Terms Agreement relating to the offering of U.S. Underwritten Securities
shall specify the amount of U.S. Underwritten Securities to be initially
issued (the "Initial U.S. Securities"), the names of the U.S. Underwriters
participating in such offering (subject to substitution as provided in
Section 10 hereof), the amount of Initial U.S. Securities which each such
U.S. Underwriter severally agrees to purchase, the names of such of the
Representatives or such other U.S. Underwriters acting as co-managers, if
any, in connection with such offering, the price at which the Initial U.S.
Securities are to be purchased by the U.S. Underwriters from the Company or
the Operating Partnership, as the case may be, the initial public offering
price, if any, of the Initial U.S. Securities, the form, time, date and place
of delivery and payment, any delayed delivery arrangements and any other
variable terms of the Initial U.S. Securities (including, but not limited to,
current ratings, designations, liquidation preferences, voting and other
rights, denominations, interest rates or formulas, interest payment dates,
maturity dates and redemption or repayment provisions applicable to the
Initial U.S. Securities). In addition, each U.S. Terms Agreement shall
specify whether the U.S. Underwriters will be granted an option to purchase
additional U.S. Underwritten Securities to cover over-allotments, if any, and
the aggregate amount of U.S. Underwritten Securities subject to such option
(the "Option Securities"). As used herein, the term "U.S. Underwritten
Securities" shall include the Initial U.S. Securities and all or any portion
of the U.S. Option Securities agreed to be purchased by the U.S. Underwriters
as provided herein, if any. The U.S. Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the
Representatives and the Company or the Operating Partnership, as the case may
be. Each offering of U.S. Underwritten Securities through the
Representatives or through an underwriting syndicate managed by the
Representatives will be governed by this Agreement, as supplemented by the
applicable U.S. Terms Agreement.
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Underwriting Agreement")
providing for the sale by the Company of Securities (the "International
Securities") through arrangements with certain underwriters outside the United
States (the "International Managers") for whom Merrill Lynch International
("MLI") and such other parties, if any, as are identified in the applicable
International Terms Agreement (as hereinafter defined) as additional co-managers
with respect to the International Securities are acting as such, and the grant
by the Company to the International Managers of an option to purchase additional
International Securities (the "Option International Securities") solely to cover
over-allotments. The initial public offering price and the purchase price with
respect to the International Securities to be initially issued (the "Initial
International Securities') are to be set forth in a separate instrument (the
"International Terms Agreement"), the form of which is to be attached to the
International Underwriting Agreement. It is understood that the Company is not
obligated to sell, and the U.S. Underwriters are not obligated to purchase, any
Initial U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The International Managers and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters." The Initial International
Securities and the Initial U.S. Securities are hereinafter collectively referred
to as the "Initial Securities." The Option International Securities and the
U.S. Option Securities are hereinafter collectively referred to as the "Option
Securities." The International Securities and the U.S. Underwritten Securities
are hereinafter collectively referred to as the "Securities."
The Company understands that the International Managers and the U.S.
Underwriters will enter into an Intersyndicate Agreement (the "Intersyndicate
Agreement") providing for the coordination of certain transactions among the
International Managers and the U.S. Underwriters under the direction of Merrill
Lynch with respect to any concurrent offering of U.S. Underwritten Securities
and International Securities. The Company further understands that, except as
otherwise may be agreed by the U.S. Underwriters and the International Managers
in connection with any particular offering of Securities, it is understood that
the U.S. Underwriters may offer and sell Securities pursuant to a U.S. Terms
Agreement outside of the United States and Canada.
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The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-26845) for the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 430A or Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company and the Operating Partnership have filed such amendments thereto
as may have been required prior to the execution of the applicable U.S. Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations), together with each prospectus supplement relating to
the offering of U.S. Underwritten Securities (the "U.S. Prospectus") or the
offering of International Securities (the "International Prospectus"), each
pursuant to Rule 415 of the 1933 Act Regulations (each, a "Prospectus
Supplement"), including all documents incorporated therein by reference, as from
time to time amended or supplemented pursuant to the 1933 Act, the Securities
Exchange Act of 1934, as amended (the "1934 Act") or otherwise, are collectively
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided that if any revised prospectus shall be provided to the
Representatives by the Company or the Operating Partnership for use in
connection with the offering of Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes effective
(whether or not such revised prospectus is required to be filed by the Company
or the Operating Partnership pursuant to Rule 424(b) of the 1933 Act
Regulations), the terms "U.S. Prospectus" and "International Prospectus" shall
refer to each such revised prospectus from and after the time it is first
provided to the U.S. Underwriters or the International Managers, as the case may
be, for such use; provided, further, that a Prospectus Supplement shall be
deemed to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates. Any registration statement (including any
supplement thereto or information which is deemed part thereof) filed by the
Company or the Operating Partnership under Rule 462(b) of the 1933 Act
Regulations (a "Rule 462(b) Registration Statement") shall be deemed to be part
of the Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in the
Rule 462(b) Registration Statement and any term sheet as contemplated by Rule
434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be part of
the Prospectus. All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and the Operating Partnership represent and warrant,
jointly and severally, to the Representatives, as of the date hereof, and to the
Representatives and each other U.S. Underwriter named in the applicable U.S.
Terms Agreement, as of the date thereof, as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below) (in
each case, a "Representation Date"), as follows:
(i) The Registration Statement and the U.S. Prospectus,
at the time the Registration Statement became effective, complied,
and as of each Representation Date will comply, in all material
respects with the requirements of the 1933 Act, the 1933 Act
Regulations and the 1939 Act and the rules
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and regulations thereunder (the "1939 Act Regulations"). The
Registration Statement, at the time the Registration Statement became
effective, did not, and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The U.S. Prospectus, as of the
date hereof does not, and as of each Representation Date (unless the
term "Prospectus" refers to a prospectus which has been provided to
you by the Company or the Operating Partnership for use in connection
with an offering of Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to you for
such use), Closing Time and Date of Delivery, if any, will not,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or U.S. Prospectus made in
reliance upon and in conformity with information furnished to the
Company or the Operating Partnership in writing by any U.S.
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility") of a Trustee under an Indenture. If a Rule 462(b)
Registration Statement is required in connection with the offering
and sale of the Securities, the Company and the Operating Partnership
have complied or will comply with the requirements of Rule 111 under
the 1933 Act Regulations relating to the payment of filing fees
therefor.
(ii) Each preliminary U.S. prospectus, U.S. Prospectus,
preliminary prospectus supplement and Prospectus Supplement filed as
part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied or will comply when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the U.S.
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time they were or hereafter are filed with the Commission, complied
and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission under the
1934 Act (the "1934 Act Regulations"), and, when read together with
the other information in the U.S. Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date or during the period specified in Section 3(f),
did not and will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) KPMG Peat Marwick LLP, the accounting firm that
audited the financial statements and supporting schedules included
in, or incorporated by reference into, the Registration Statement and
U.S. Prospectus, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(v) The financial statements included in, or
incorporated by reference into, the Registration Statement and the
U.S. Prospectus, together with the related schedules and notes,
present fairly the financial position of the respective entity or
entities presented therein at the respective dates indicated and the
results of their operations for the respective periods specified.
Except as otherwise stated in the Registration Statement and U.S.
Prospectus, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved. The supporting
schedules included or incorporated by reference in the Registration
Statement and the U.S. Prospectus present fairly the information
required to be stated therein. The Company's ratios of earnings to
fixed charges (actual and, if any, pro forma) included in the U.S.
Prospectus under the caption "Selected Consolidated Financial Data"
and in Exhibit 12 to the Registration Statement have been calculated
in compliance with Item 503(d) of Regulation S-K of the Commission.
The financial information and data included in the Registration
Statement and the U.S. Prospectus present fairly the information
included
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therein and have been prepared on a basis consistent with that of the
financial statements included or incorporated by reference in the
Registration Statement and the U.S. Prospectus and the books and
records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the U.S. Prospectus has been prepared in
accordance with the applicable requirements of the 1933 Act, the 1933
Act Regulations and guidelines of the American Institute of Certified
Public Accountants with respect to pro forma financial information
and includes all adjustments necessary to present fairly the pro
forma financial position of the Operating Partnership and the
Company, as applicable, at the respective dates indicated and the
results of operations for the respective periods specified.
(vi) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or is pending or, to
the knowledge of the Company or the Operating Partnership, threatened
by the Commission or by the state securities authority of any
jurisdiction, and any request on the part of the Commission for
additional information has been complied with. No order preventing
or suspending the use of the U.S. Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company or the Operating Partnership, threatened by the
Commission or by the state securities authority of any jurisdiction.
(vii) Since the respective dates as of which information
is given in the Registration Statement and the U.S. Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Company, the Operating Partnership and any of their respective
subsidiaries, whether or not arising in the ordinary course of
business; (B) there has been no adverse change, material to the Duke
Group (as hereinafter defined) as a whole, in the condition,
financial or otherwise, or in the earnings, assets, business affairs
or business prospects of any of the real properties owned, directly
or indirectly, by the Company, the Operating Partnership or any
subsidiary (the "Properties") or any entity wholly or partially owned
by the Company, the Operating Partnership or any subsidiary which
owns any Property (a "Property Partnership") (the Company, the
Operating Partnership, the subsidiaries and the Property Partnerships
are hereinafter jointly referred to as the "Duke Group"), whether or
not arising in the ordinary course of business; (C) no material
casualty loss or material condemnation or other material adverse
event with respect to any Property has occurred; (D) there have been
no transactions or acquisitions entered into by the Duke Group, other
than those arising in the ordinary course of business, which are
material with respect to the Duke Group as a whole; (E) neither the
Company, the Operating Partnership nor any of their respective
subsidiaries has incurred any obligation or liability, direct,
contingent or otherwise which is material to the Duke Group as a
whole; (F) there has been no material change in the short-term debt
or long-term debt of the Duke Group as a whole; (G) except for
regular quarterly dividends on the Common Stock and dividends on the
Preferred Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock; and (H) with the exception of transactions in connection with
stock option and dividend reinvestment plans, the issuance of shares
of Common Stock upon the exchange of partnership interests in the
Operating Partnership ("Units") and the issuance of Units in
connection with the acquisition of real or personal property, there
has been no change in the capital stock or in the partnership
interests, as the case may be, of the Company, the Operating
Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has
been duly formed, and is validly existing and in good standing as a
corporation or partnership under the laws of its jurisdiction of
organization, with corporate or partnership power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the U.S.
Prospectus and to enter into and perform its obligations under this
Agreement, the U.S. Terms Agreement and the Indenture.
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(ix) Each of the Company's and the Operating
Partnership's subsidiaries has been duly formed, and is validly
existing and in good standing as a corporation or partnership under
the laws of its jurisdiction of organization, with corporate or
partnership power and authority to conduct the business in which it
is engaged or proposes to engage and to own, lease and operate its
properties as described in the U.S. Prospectus.
(x) Each of the Company, the Operating Partnership,
their respective subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation in
good standing and authorized to do business in each jurisdiction in
which such qualification is required whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Duke Group
considered as a single enterprise (a "Material Adverse Effect").
(xi) If the applicable U.S. Underwritten Securities are
issued by the Company, and if the U.S. Prospectus contains the
caption "Capitalization," the authorized, issued and outstanding
shares of capital stock of the Company as of the date specified
therein is as set forth in the column entitled "Historical" under
such caption. All the issued and outstanding shares of capital stock
of the Company have been duly authorized and are validly issued,
fully paid and non-assessable and have been offered and sold in
compliance with all applicable laws (including, without limitation,
federal, state or foreign securities laws) and none of such shares of
capital stock was issued in violation of preemptive or other similar
rights of any securityholder of the Company.
(xii) If the applicable U.S. Underwritten Securities are
issued by the Operating Partnership, and if the U.S. Prospectus
contains the caption "Capitalization," the partner's equity of the
Operating Partnership is as set forth in the column entitled
"Historical" under such caption. All the issued and outstanding
Units have been duly authorized and are validly issued, fully paid
and non-assessable, except as provided under Indiana Code Section
23-16-7-8, and have been offered and sold or exchanged in compliance
with all applicable laws (including, without limitation, federal,
state or foreign securities laws).
(xiii) All of the issued and outstanding shares of capital
stock and partnership interests, as the case may be, of each
subsidiary have been validly issued and fully paid and, other than
the Property Partnerships, Duke Realty Services Limited Partnership
(the "Services Partnership") and Duke Construction Limited
Partnership (the "Construction Partnership"), are owned by the
Company, the Operating Partnership or a subsidiary, in each case free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity
other than the subsidiaries and the Property Partnerships, except for
such interests as, in the aggregate, are not material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered as a
single enterprise. Duke Services, Inc. is the sole general partner
and a 1% owner of the Services Partnership, and the Operating
Partnership and DMI Partnership are the sole limited partners and 9%
and 90% owners, respectively, of the Services Partnership. The
Services Partnership is the sole general partner and a 1% owner of
the Construction Partnership. The 99% limited partnership interest
of the Construction Partnership is owned by Duke Realty Construction,
Inc., an Indiana corporation which is owned 4.04% by the Services
Partnership and 95.96% by DMI Partnership.
(xiv) Except for transactions described in the U.S.
Prospectus and transactions in connection with dividend reinvestment
plans, and stock option and other employee benefit plans, there are
no outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings
with respect to the sale or issuance of, any shares of capital stock
of or
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partnership or other equity interest in the Company, the Operating
Partnership or any subsidiary except for the shares of Common Stock
which may be issued in exchange for Units.
(xv) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the case
may be, and is validly existing and in good standing as a partnership
or limited liability company under the laws of its jurisdiction of
organization and, if formed under the laws of a jurisdiction other
than the State of Indiana, in good standing under the laws of such
jurisdiction; each of the Property Partnerships has the requisite
power and authority to own, lease and operate its properties, to
conduct the business in which it is engaged and to enter into and
perform its respective obligations under the agreements, to which it
is a party. Each of the partnership or operating agreements, as the
case may be, of the Property Partnerships is in full force and effect.
(xvi) The applicable U.S. Underwritten Securities, if such
U.S. Underwritten Securities are either Common Stock, Preferred Stock
or Depositary Shares, have been duly authorized by the Company for
issuance and sale to the U.S. Underwriters pursuant to this Agreement,
and, when issued and delivered by the Company pursuant to this
Agreement and the applicable U.S. Terms Agreement against payment of
the consideration set forth in the U.S. Terms Agreement or any Delayed
Delivery Contract (as defined in Section 2 hereof), will be validly
issued, fully paid and non-assessable. Upon payment of the purchase
price and delivery of such U.S. Underwritten Securities in accordance
herewith, each of the U.S. Underwriters will receive good, valid and
marketable title to such U.S. Underwritten Securities, free and clear
of all security interests, mortgages, pledges, liens, encumbrances,
claims and equities. The terms of such applicable U.S. Underwritten
Securities conform to all statements and descriptions related thereto
contained in the U.S. Prospectus. The form of stock or depositary
certificate to be used to evidence the applicable U.S. Underwritten
Securities will be in due and proper form and will comply with all
applicable legal requirements. The issuance of such applicable U.S.
Underwritten Securities is not subject to any preemptive or other
similar rights.
(xvii) The applicable U.S. Underwritten Securities, if such
U.S. Underwritten Securities are Debt Securities, are in the form
contemplated by the Indenture, have been duly authorized by the
Operating Partnership for issuance and sale to the U.S. Underwriters
pursuant to this Agreement and, when executed, authenticated, issued
and delivered in the manner provided for in this Agreement, any U.S.
Terms Agreement and the applicable Indenture, against payment of the
consideration therefor specified in the applicable U.S. Terms
Agreement or any Delayed Delivery Contract (as defined in Section 2
hereof), such Debt Securities will constitute valid and legally
binding obligations of the Operating Partnership, entitled to the
benefits of the Indenture and such Debt Securities will be enforceable
against the Operating Partnership in accordance with their terms.
Upon payment of the purchase price and delivery of such U.S.
Underwritten Securities in accordance herewith, each of the U.S.
Underwriters will receive good, valid and marketable title to such
U.S. Underwritten Securities, free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities. The terms of such applicable U.S. Underwritten Securities
conform to all statements and descriptions related thereto in the U.S.
Prospectus. Such U.S. Underwritten Securities rank and will rank on a
parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Operating Partnership that is outstanding on the
Representation Date or that may be incurred thereafter, and senior to
all subordinated indebtedness of the Operating Partnership that is
outstanding on the Representation Date or that may be incurred
thereafter, except that such U.S. Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xviii) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred Stock
represented by Depositary Shares) will have been duly and validly
authorized and reserved for issuance upon such conversion or exercise
by all necessary action and such stock, when issued upon such
conversion or exercise, will be duly and validly issued, fully paid
and non-assessable, and the issuance of such stock upon such
conversion or exercise will not be subject to
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preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating thereto
contained in the U.S. Prospectus.
(xix) The U.S. Underwritten Securities being sold pursuant
to the applicable U.S. Terms Agreement will conform in all material
respects to the statements relating thereto contained in the U.S.
Prospectus and will be in substantially the form filed or incorporated
by reference, as the case may be, as an exhibit to the Registration
Statement.
(xx) There are no contracts or documents which are
required to be described in the Registration Statement, the U.S.
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and/or
filed as required and the descriptions thereof or references thereto
are correct in all material respects and no material defaults exist in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any such contract or
document.
(xxi) None of the entities comprising the Duke Group is in
violation of its charter, by-laws, certificate of limited partnership
or partnership agreement, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity is a
party or by which such entity may be bound, or to which any of its
property or assets is subject, which default separately or in the
aggregate would have a Material Adverse Effect.
(xxii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company and the Operating
Partnership, and, assuming due authorization, execution and delivery
by the Representatives, constitutes a valid and binding obligation of
the Company and the Operating Partnership, enforceable in accordance
with its terms, and (B) at the Representation Date, the U.S. Terms
Agreement and the Delayed Delivery Contracts (as defined in Section 2
hereof), if any, will have been duly and validly authorized, executed
and delivered by the Company and the Operating Partnership, as the
case may be, and, assuming due authorization, execution and delivery
by the Representatives will be valid and binding agreements,
enforceable in accordance with its or their terms.
(xxiii) If applicable, the Indenture (A) has been duly
qualified under the 1939 Act, has been duly and validly authorized,
executed and delivered by the Operating Partnership, and when executed
and delivered by the Trustee, will constitute a valid and binding
obligation of the Operating Partnership, enforceable in accordance
with its terms, and (B) conforms in all material respects to the
description thereof in the U.S. Prospectus.
(xxiv) Each of the partnership agreements to which any of
the Company, the Operating Partnership or their respective
subsidiaries is a party has been duly authorized, executed and
delivered by such party and constitutes a valid and binding obligation
thereof, enforceable in accordance with its terms.
(xxv) The execution and delivery of this Agreement, the
applicable U.S. Terms Agreement, any Indenture and any deposit
agreement and the issuance of the U.S. Underwritten Securities, the
performance of the obligations set forth herein or therein, and the
consummation of the transactions contemplated hereby and thereby or in
the U.S. Prospectus by the Company and the Operating Partnership, will
not conflict with or constitute a breach or violation by the Company
or the Operating Partnership of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
Property or assets of the Duke Group pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which the
Company, the Operating Partnership or any subsidiary is a party or by
which they, either of them, any of their respective properties or
other assets or any Property may be bound or subject which is material
to the Duke Group as a whole; nor will such action conflict with or
constitute a breach or violation by the Company or the
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Operating Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as the
case may be, of the Company, the Operating Partnership or any
subsidiary or (B) to the extent it is material, any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xxvi) No labor dispute with the employees of the Duke
Group exists or, to the knowledge of the Company or the Operating
Partnership, is imminent; and neither the Company nor the Operating
Partnership is aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or
contractors which might be expected to have a Material Adverse Effect.
(xxvii) There is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or the Operating
Partnership, threatened against or affecting any entity belonging to
the Duke Group, any Properties or any officer or director of the
Company, which is material to the Duke Group as a whole and is
required to be disclosed in the Registration Statement or the U.S.
Prospectus (other than as disclosed therein), or that, if determined
adversely to any entity belonging to the Duke Group or any Property,
or any such officer or director, will or could reasonably be expected
to result in any Material Adverse Effect, or which might materially
and adversely affect the Properties or assets of the Duke Group or
which might materially and adversely affect the consummation of this
Agreement, the applicable U.S. Terms Agreement, the Indenture, if any,
or the transactions contemplated herein and therein. There are no
pending legal or governmental proceedings to which any entity
belonging to the Duke Group is a party or of which they or any of
their respective properties or assets or any Property or Property
Partnership is the subject, including ordinary routine litigation
incidental to the business, that are, considered in the aggregate,
material to the condition, financial or otherwise, or the earnings,
assets, business affairs or business prospects of the Duke Group as a
whole. There are no statutes or contracts or documents of the
entities comprising the Duke Group which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xxviii) No authorization, approval, consent or order of any
court or governmental authority or agency is required that has not
been obtained in connection with the consummation by the Company, the
Operating Partnership or both, as the case may be, of the transactions
contemplated by this Agreement, the applicable U.S. Terms Agreement,
or the applicable Indenture, if any, except such as may be required
under the 1933 Act or the 1933 Act Regulations or the 1939 Act or the
1939 Act Regulations or state or foreign securities laws or real
estate syndication laws or such as have been received prior to the
date of this Agreement.
(xxix) At all times since February 13, 1986, the Company
has been, and upon the sale of the applicable U.S. Underwritten
Securities, the Company will continue to be, organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended
(the "Code"), and its proposed method of operation will enable it to
continue to meet the requirements for taxation as a real estate
investment trust under the Code.
(xxx) None of the entities comprising the Duke Group is
required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act"), or is or will become a "holding company" or
a "subsidiary company" of a "registered holding company" as defined in
the Public Utility Holding Company Act of 1935, as amended.
(xxxi) None of the entities comprising the Duke Group is
required to own or possess any trademarks, service marks, trade names
or copyrights not now lawfully owned, possessed or licensed in order
to conduct the business now operated by such entity.
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(xxxii) Each entity belonging to the Duke Group possesses
such material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by it, or proposed to
be conducted by it, and none of the entities comprising the Duke Group
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(xxxiii) Except as disclosed in the U.S. Prospectus and
except for persons who received Units in connection with transactions
with the Operating Partnership, there are no persons with registration
or other similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the Company or
the Operating Partnership under the 1933 Act.
(xxxiv) The Common Stock will be listed on the New York
Stock Exchange on the applicable Representation Date and at the
applicable Closing Time. Unless otherwise agreed upon with reference
to Preferred Stock, as of the applicable Representation Date the
Preferred Stock will have been approved for listing on the New York
Stock Exchange upon notice of issuance.
(xxxv) The Debt Securities will have an investment grade
rating from one or more nationally recognized statistical rating
organizations at the Representation Date and at the applicable Closing
Time.
(xxxvi) (A) With respect to the Properties, the Company or
the Operating Partnership and the Property Partnerships have good and
marketable title to all items of real property (and improvements
thereon), leasehold interests and general and limited partnership
interests, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, except such as are (i)
described in the U.S. Prospectus or the Company's Annual Report on
Form 10-K for the most recently ended fiscal year, (ii) referred to in
the title policies of such Properties, (iii) serving as security for
loans described in the U.S. Prospectus, and (iv) nonmaterial and
placed on a Property in connection with such Property's development;
(B) all contracts of the Operating Partnership and any subsidiary to
provide leasing, property management and construction management
services, general contractor services for third parties, and real
estate development, construction and miscellaneous tenant services
businesses (the "Related Businesses"), are enforceable by and in the
name of the Operating Partnership and the applicable subsidiary, as
the case may be; (C) all liens, charges, encumbrances, claims, or
restrictions on or affecting any of the Properties or Related
Businesses and the assets of the entities comprising the Duke Group
which are required to be disclosed in the U.S. Prospectus are
disclosed therein; (D) neither the Operating Partnership, any Property
Partnership nor any tenant of any of the Properties is in default
under any of the ground leases (as lessee) or space leases (as lessor)
relating to, or any of the mortgages or other security documents or
other agreements encumbering or otherwise recorded against, the
Properties, and none of the entities comprising the Duke Group knows
of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
documents or agreements, other than such defaults that would not have
a Material Adverse Effect; (E) no tenant under any of the leases,
pursuant to which the Operating Partnership or any Property
Partnership, as lessor, leases its Property, has an option or right of
first refusal to purchase the premises demised under such lease, the
exercise of which would have a Material Adverse Effect; (F) each of
the Properties complies with all applicable codes, laws and
regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to the Properties),
except for such failures to comply that would not individually or in
the aggregate have a Material Adverse Effect; and (G) neither the
Company nor the Operating Partnership has knowledge of any pending or
threatened condemnation proceedings, zoning change, or other
proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on or access to the Properties,
except such proceedings or actions that would not have a Material
Adverse Effect.
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(xxxvii) Immediately following the application of the
proceeds of the sale of the U.S. Underwritten Securities in the manner
set forth in the U.S. Prospectus, the mortgages and deeds of trust
encumbering the Properties and assets described in the U.S. Prospectus
will not be convertible and none of the Property Partnerships nor any
person related to or affiliated with the Property Partnerships will
hold a participating interest therein and said mortgages and deeds of
trust will not be cross-defaulted or cross-collateralized with any
property not owned by the Operating Partnership.
(xxxviii) Each of the Company, the Operating Partnership and
their respective subsidiaries is insured by insurers of recognized
financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they
are engaged; and none of the Company, the Operating Partnership and
their respective subsidiaries has any reason to believe that it or any
of its subsidiaries will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
businesses at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Registration Statement
and the U.S. Prospectus.
(xxxix) The Company and the Operating Partnership have not
taken and will not take, directly or indirectly, any action prohibited
by Regulation M under the 1934 Act.
(xl) The assets of the Company do not constitute "plan
assets" under the Employee Retirement Income Security Act of 1974, as
amended.
(xli) Except as disclosed in the U.S. Prospectus, and,
with respect to clauses (A), (B) and (C) below, except for activities,
conditions, circumstances or matters that would not have a Material
Adverse Effect, (A) each Property, including, without limitation, the
Environment (as defined below) associated with such Property, is free
of any Hazardous Substance (as defined below), (B) neither the Company
nor the Operating Partnership nor any Property Partnership has caused
or suffered to occur any Release (as defined below) of any Hazardous
Substance into the Environment on, in, under or from any Property, and
no condition exists on, in, under or from any Property, to the
knowledge of the Company or the Operating Partnership, that could
result in the incurrence of material liabilities or any material
violations of any Environmental Law (as defined below), give rise to
the imposition of any Lien (as defined below) under any Environmental
Law, or cause or constitute a health, safety or environmental hazard
to any property, person or entity; (C) neither the Company, the
Operating Partnership nor any Property Partnership is engaged in or
intends to engage in any manufacturing or any other operations at the
Properties that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance or (2)
require permits or are otherwise regulated pursuant to any
Environmental Law, other than permits which have been obtained; (D)
neither the Company nor the Operating Partnership nor any Property
Partnership has received any notice of a claim material to the Duke
Group as a whole under or pursuant to any Environmental Law or under
common law pertaining to Hazardous Substances on or originating from
any Property; (E) neither the Company nor the Operating Partnership
nor any Property Partnership has received any notice from any
Governmental Authority (as defined below) claiming any violation of
any Environmental Law; and (F) no Property is included or, to the
knowledge of the Company or the Operating Partnership, proposed for
inclusion on the National Priorities List issued pursuant to CERCLA
(as defined below) by the United States Environmental Protection
Agency (the "EPA") or, with the exception of one Property, in respect
to which the EPA has advised the Company that no further remedial
action is planned, on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by
the EPA, and has not otherwise been identified by the EPA as a
potential CERCLA removal, remedial or response site or included or, to
the knowledge of the Company or the Operating Partnership, proposed
for inclusion on, any similar list of potentially contaminated sites
pursuant to any other Environmental Law.
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Excluding such customary amounts as may be lawfully generated,
stored, used, treated, disposed of, or otherwise handled or located at
any Property, as used herein "Hazardous Substance" shall include,
without limitation, any hazardous substance, hazardous waste, toxic or
dangerous substance, pollutant, toxic waste or similarly designated
materials, including, without limitation, oil, petroleum or any
petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, pesticides, explosives, radioactive materials,
dioxins, urea formaldehyde insulation or any constituent of any such
substance, pollutant or waste, including any such substance, pollutant
or waste identified or regulated under any Environmental Law
(including, without limitation, materials listed in the United States
Department of Transportation Optional Hazardous Material Table, 49
C.F.R. Section 172.101, as the same may now or hereafter be amended,
or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 3202, as the same may now or hereafter be
amended); "Environment" shall mean any surface water, drinking water,
ground water, land surface, subsurface strata, river sediment,
buildings, structures, and ambient, workplace and indoor and outdoor
air; "Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.) ("CERCLA"), the Resource Conservation
and Recovery Act of 1976, as amended (42 U.S.C. Section 6901, et
seq.), the Clean Air Act, as amended (42 U.S.C. Section 7401, et
seq.), the Clean Water Act, as amended (33 U.S.C. Section 1251, et
seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Section
2601, et seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Section 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. Section 1801, et seq.), and
all other federal, state and local laws, ordinances, regulations,
rules, orders, decisions and permits relating to the protection of the
environments or of human health from environmental effects;
"Governmental Authority" shall mean any federal, state or local
governmental office, agency or authority having the duty or authority
to promulgate, implement or enforce any Environmental Law; "Lien"
shall mean, with respect to any Property, any mortgage, deed of trust,
pledge, security interest, lien, encumbrance, penalty, fine, charge,
assessment, judgment or other liability in, on or affecting such
Property; and "Release" shall mean any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance
into the Environment, including, without limitation, the abandonment
or discard of barrels, containers, tanks (including, without
limitation, underground storage tanks) or other receptacles containing
or previously containing any Hazardous Substance or any release,
emission, discharge or similar term, as those terms are defined or
used in any Environmental Law.
(xlii) Each of the Company, the Operating Partnership and
their subsidiaries has obtained title insurance on all of the
properties owned by each of them in an amount at least equal to (A)
the cost to acquire land and improvements in the case of an
acquisition of improved property or (B) the cost to acquire land in
the case of an acquisition of unimproved property and in each case
such title insurance is in full force and effect.
(xliii) Each of the Company and the Operating Partnership
has filed all federal, state, local and foreign income tax returns
which have been required to be filed (except in any case in which the
failure to so file would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of such entity) and has paid all taxes
required to be paid and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except, in all cases, for any such tax, assessment, fine or
penalty that is being contested in good faith.
(b) Any certificate signed by any officer of the Company,
the Operating Partnership or of any of their respective subsidiaries
and delivered to the Representatives or to counsel for the U.S.
Underwriters shall be deemed a representation and warranty by such
entity to each U.S. Underwriter as to the matters covered thereby.
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SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING.
(a) The several commitments of the U.S. Underwriters to purchase the
U.S. Underwritten Securities pursuant to the applicable U.S. Terms Agreement
shall be deemed to have been made on the basis of the representations and
warranties herein contained and shall be subject to the terms and conditions set
forth herein or in the applicable U.S. Terms Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company or the Operating Partnership, as the case may be, may grant, if so
provided in the applicable U.S. Terms Agreement relating to the Initial U.S.
Securities, an option to the U.S. Underwriters named in such U.S. Terms
Agreement, severally and not jointly, to purchase up to the number of U.S.
Option Securities set forth therein at the same price per U.S. Option Security
as is applicable to the Initial U.S. Securities, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial U.S. Securities but not payable on the Option Securities. Such option,
if granted, will expire 30 days (or such lesser number of days as may be
specified in the applicable U.S. Terms Agreement) after the Representation Date
relating to the Initial U.S. Securities, and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial U.S.
Securities upon notice by the Representatives to the Company or the Operating
Partnership, as the case may be, setting forth the number of U.S. Option
Securities as to which the several U.S. Underwriters are then exercising the
option and the time, date and place of payment and delivery for such Option
Securities. Any such time, date and place of delivery (a "Date of Delivery")
shall be determined by the Representatives, but shall not be later than seven
full business days nor earlier than two full business days after the exercise of
said option, nor in any event prior to the Closing Time, unless otherwise agreed
upon by the Representatives and the Company or the Operating Partnership, as the
case may be. If the option is exercised as to all or any portion of the Option
Securities, each of the U.S. Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of U.S. Option Securities then
being purchased which the number of Initial U.S. Securities each such U.S.
Underwriter has severally agreed to purchase as set forth in the applicable U.S.
Terms Agreement bears to the total number of Initial U.S. Securities (except as
otherwise provided in the applicable U.S. Terms Agreement), subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional U.S. Underwritten Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial U.S. Securities to be purchased by the U.S. Underwriters shall
be made at the offices of Rogers & Wells, 200 Park Avenue, New York, New York
10166, or at such other place as shall be agreed upon by the Representatives and
the Company or the Operating Partnership, as the case may be, at 10:00 A.M. on
the fourth business day (or the third business day if required under Rule 15c6-1
of the 1934 Act, or unless postponed in accordance with the provisions of
Section 10) following the date of the applicable U.S. Terms Agreement or at such
other time as shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called the "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices of Rogers & Wells, or at such other place as shall be
agreed upon by the Representatives and the Company or the Operating Partnership,
as the case may be, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
Payment shall be made to the Company or the Operating Partnership, as
the case may be, by wire transfer of immediately available funds to a bank
account designated by the Company or the Operating Partnership, as the case may
be, against delivery to the Representatives for the respective accounts of the
U.S. Underwriters of the U.S. Underwritten Securities to be purchased by them.
Certificates for the U.S. Underwritten Securities and the Option Securities, if
any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least two business days before the
Closing Time or the relevant Date of Delivery, as the case may be. It is
understood that each U.S. Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the U.S. Underwritten Securities and
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the Option Securities, if any, which it has agreed to purchase. The
Representatives, individually and not as representatives of the U.S.
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the U.S. Underwritten Securities or the Option Securities,
if any, to be purchased by any U.S. Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case
may be, but any such payment shall not relieve such U.S. Underwriter from its
obligations hereunder. The certificates for the Initial U.S. Securities and
the Option Securities, if any, will be made available for examination and
packaging by the Representatives not later than 10:00 A.M. on the last
business day prior to the Closing Time or the relevant Date of Delivery, as
the case may be, in New York, New York.
If authorized by the applicable U.S. Terms Agreement, the U.S.
Underwriters named therein may solicit offers to purchase U.S. Underwritten
Securities from the Company or the Operating Partnership, as the case may be,
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company or the Operating Partnership, as the case may be, may approve. As
compensation for arranging Delayed Delivery Contracts, the Company or the
Operating Partnership, as the case may be, will pay to the Representatives at
Closing Time, for the respective accounts of the U.S. Underwriters, a fee equal
to that percentage of the amount of U.S. Underwritten Securities for which
Delayed Delivery contracts are made at the applicable Closing Time as is
specified in the applicable U.S. Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types described in the
U.S. Prospectus. At the applicable Closing Time, the Company or the Operating
Partnership, as the case may be, will enter into Delayed Delivery Contracts (for
not less than the minimum amount of U.S. Underwritten Securities per Delayed
Delivery Contract specified in the applicable U.S. Terms Agreement) with all
purchasers proposed by the U.S. Underwriters and previously approved by the
Company or the Operating Partnership, as the case may be, as provided below, but
not for an aggregate principal amount of U.S. Underwritten Securities in excess
of that specified in the applicable U.S. Terms Agreement. The U.S. Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
The Representatives shall submit to the Company or the Operating
Partnership, as the case may be, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company or the Operating Partnership, as the case may be,
will enter into Delayed Delivery Contracts and the amount of U.S. Underwritten
Securities to be purchased by each of them, and the Company or the Operating
Partnership, as the case may be, will advise the Representatives at least two
business days prior to the applicable Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company or the Operating Partnership, as the case may be, and the amount of
U.S. Underwritten Securities to be covered by each such Delayed Delivery
Contract.
The amount of U.S. Underwritten Securities agreed to be purchased by
the several U.S. Underwriters pursuant to the applicable U.S. Terms Agreement
shall be reduced by the amount of U.S. Underwritten Securities covered by
Delayed Delivery Contracts, as to each U.S. Underwriter as set forth in a
written notice delivered by the Representatives to the Company or the Operating
Partnership, as the case may be; provided, however, that the total amount of
U.S. Underwritten Securities to be purchased by all U.S. Underwriters shall be
the total amount of U.S. Underwritten Securities covered by the applicable U.S.
Terms Agreement, less the amount of U.S. Underwritten Securities covered by
Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each
of the Company and the Operating Partnership covenants with the Representatives,
and with each U.S. Underwriter participating in the offering of U.S.
Underwritten Securities, as follows:
(a) In respect to each offering of U.S. Underwritten Securities,
the Company or the Operating Partnership, as the case may be, will
prepare a Prospectus Supplement setting forth the number of U.S.
Underwritten Securities covered thereby and their terms not otherwise
specified in the U.S. Prospectus pursuant to which the U.S.
Underwritten Securities are being issued, the names of the U.S.
Underwriters participating in the offering and the number of U.S.
Underwritten Securities which each severally has
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agreed to purchase, the names of the U.S. Underwriters acting as
co-managers in connection with the offering, the price at which the
U.S. Underwritten Securities are to be purchased by the U.S.
Underwriters from the Company or the Operating Partnership, as the
case may be, the initial public offering price, if any, the selling
concession and reallowance, if any, and such other information as the
Representatives and the Company or the Operating Partnership, as the
case may be, deem appropriate in connection with the offering of the
U.S. Underwritten Securities; and the Company or the Operating
Partnership, as the case may be, will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations and will furnish to the U.S.
Underwriters named therein as many copies of the U.S. Prospectus
(including such Prospectus Supplement) as the Representatives shall
reasonably request.
(b) If, at the time the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule
430A of the 1933 Act Regulations, then immediately following the
execution of the U.S. Terms Agreement, the Company and the Operating
Partnership will prepare, and file or transmit for filing with the
Commission in accordance with such Rule 430A and Rule 424(b) of the
1933 Act Regulations, a copy of an amended U.S. Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the
Registration Statement (including amended U.S. Prospectuses),
containing all information so omitted. If required, the Company and
the Operating Partnership will prepare and file or transmit for filing
a Rule 462(b) Registration Statement not later than the date of
execution of the U.S. Terms Agreement. If a Rule 462(b) Registration
Statement is filed, the Company and the Operating Partnership shall
make payment of, or arrange for payment of, the additional
registration fee owing to the Commission required by Rule 111 of the
1933 Act Regulations.
(c) The Company and the Operating Partnership will notify the
Representatives immediately, and confirm such notice in writing, of
(i) the effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the U.S. Prospectus to
be filed pursuant to the 1933 Act, (iii) the receipt of any comments
from the Commission, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the U.S. Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; and the Company and the Operating
Partnership will make every reasonable effort to prevent the issuance
of any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(d) At any time when the U.S. Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales
of the U.S. Underwritten Securities, the Company and the Operating
Partnership will give the Representatives notice of its intention to
file or prepare any amendment to the Registration Statement or any
amendment or supplement to the U.S. Prospectus, whether pursuant to
the 1933 Act, 1934 Act or otherwise, will furnish the Representatives
with copies of any such amendment or supplement a reasonable amount of
time prior to such proposed filing and, unless required by law, will
not file or use any such amendment or supplement or other documents in
a form to which the Representatives or counsel for the U.S.
Underwriters shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the
Representatives as soon as possible as many signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference therein) as
the Representatives may reasonably request and will also deliver to
the Representatives as many conformed copies of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated by reference into the U.S. Prospectus) as the
Representatives may reasonably request.
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(f) The Company and the Operating Partnership will furnish to each
U.S. Underwriter, from time to time during the period when the U.S.
Prospectus is required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the U.S. Prospectus (as amended or
supplemented) as such U.S. Underwriter may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission
thereunder.
(g) If any event shall occur as a result of which it is necessary,
in the reasonable opinion of counsel for the U.S. Underwriters, to
amend or supplement the U.S. Prospectus in order to make the U.S.
Prospectus not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, the Company and the
Operating Partnership will forthwith amend or supplement the U.S.
Prospectus (in form and substance reasonably satisfactory to counsel
for the U.S. Underwriters) so that, as so amended or supplemented, the
U.S. Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the
time it is delivered to a purchaser, not misleading, and the Company
and the Operating Partnership will furnish to the U.S. Underwriters a
reasonable number of copies of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in
cooperation with the U.S. Underwriters, to qualify the U.S.
Underwritten Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and
other jurisdictions as the Representatives may designate. In each
jurisdiction in which the U.S. Underwritten Securities have been so
qualified, the Company and the Operating Partnership will file such
statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for so long as
may be required for the distribution of the U.S. Underwritten
Securities.
(i) With respect to each sale of U.S. Underwritten Securities, the
Company and the Operating Partnership will make generally available to
its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings
statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in said Rule 158) of the
Registration Statement.
(j) Each of the Company and the Operating Partnership will use the
net proceeds received by it from the sale of the U.S. Underwritten
Securities in the manner specified in the U.S. Prospectus under "Use
of Proceeds."
(k) The Company and the Operating Partnership, if applicable,
during the period when the U.S. Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of
companies that have securities listed on such exchange and, unless
otherwise agreed upon with respect to Preferred Stock, Depository
Shares and Debt Securities, will use its best efforts to maintain the
listing of any U.S. Underwritten Securities listed on the New York
Stock Exchange.
(m) In respect to each offering of Debt Securities, the Operating
Partnership will qualify an Indenture under the 1939 Act and will
endeavor to have a Statement of Eligibility submitted on behalf of the
Trustee.
(n) The Company and the Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's Corporation
("S&P"), Moody's Investors Service, Inc. ("Moody's") or any other
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nationally recognized statistical rating organization to provide their
respective credit ratings of any U.S. Underwritten Securities, if
applicable.
(o) During a period of 90 days from the date of any Prospectus
Supplement relating to U.S. Underwritten Securities, the Company and
the Operating Partnership will not, without the prior written consent
of the Representatives, directly or indirectly, sell, offer to sell,
grant any option for the sale of, enter into any agreement to sell, or
otherwise dispose of, (i) any securities of the same class or series
or ranking on a parity with any U.S. Underwritten Securities (other
than the U.S. Underwritten Securities covered by such Prospectus
Supplement or the International Securities covered by a related
Prospectus Supplement) or any security convertible into or
exchangeable for shares of such U.S. Underwritten Securities and (ii)
if such Prospectus Supplement relates to Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common Stock or
Units or any security convertible into or exchangeable for shares of
Common Stock. This transfer restriction does not apply to (i) the
possible issuance of shares of Common Stock upon the exchange of Units
by holders of Units other than DMI Partnership (except as to Units
exchanged by DMI Partnership pursuant to a Unit bonus plan for
employees of the Company and its subsidiaries) and the directors and
executive officers of the Company; (ii) grants of options, and the
issuance of shares in respect of such options, pursuant to a stock
option plan; (iii) the issuance of shares pursuant to a dividend
reinvestment plan; and (iv) the issuance of shares of Common Stock, or
any security convertible into or exchangeable or exercisable for
Common Stock, in connection with the acquisition of real property or
an interest or interests in real property, if the recipient of such
shares or other securities agrees in writing to not, without the prior
written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") and the Company and the Operating Partnership,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of any of such securities until the
expiration of a 90-day period from the date of any Prospectus
Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of
preemptive rights and other similar rights, a sufficient number of
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue such Common Stock upon conversion of
the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the Common Stock on the New
York Stock Exchange.
(r) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the
Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company and the Operating Partnership will
deliver to the Representatives, (i) promptly upon their becoming
available, copies of all current, regular and periodic reports of the
Company mailed to its stockholders or filed with any securities
exchange or with the Commission or any governmental authority
succeeding to any of the Commission's functions, and (ii) such other
information concerning the Company and the Operating Partnership as
the Representatives may reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating
Partnership will pay all expenses incident to the performance of its
obligations under this Agreement and the applicable Terms Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto; (ii) the cost of printing, or
reproducing, and distributing to the U.S. Underwriters copies of this
Agreement and the applicable U.S. Terms Agreement; (iii) the preparation,
issuance and delivery of the U.S. Underwritten Securities to the
U.S. Underwriters, including capital duties, stamp duties and stock transfer
taxes, if any, payable upon issuance of any of the U.S. Underwritten
Securities, the sale of the U.S. Underwritten Securities to the
U.S. Underwriters, their transfer between the U.S. Underwriters pursuant to
an agreement between such U.S. Underwriters and the fees and expenses of the
transfer agent for the U.S. Underwritten Securities; (iv) the fees and
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disbursements of the Company's and the Operating Partnership's counsel and
accountants; (v) the qualification of the U.S. Underwritten Securities and the
Common Stock issuable upon conversion of Preferred Stock, if any, under
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the fees and
disbursements of counsel for the U.S. Underwriters in connection therewith and
in connection with the preparation of the Blue Sky Survey; (vi) the printing and
delivery to the U.S. Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of each preliminary prospectus,
and of the U.S. Prospectus and any amendments or supplements thereto; (vii) the
cost of printing, or reproducing, and delivering to the U.S. Underwriters copies
of the Blue Sky Survey; (viii) the fee of the National Association of Securities
Dealers, Inc., if any; (ix) the fees and expenses incurred in connection with
the listing of the U.S. Underwritten Securities and the Common Stock issuable
upon conversion of Preferred Stock, if any, on the New York Stock Exchange, any
other national securities exchange or quotation system; (x) any fees charged by
nationally recognized statistical rating organizations for the rating of the
Debt Securities, if any; (xi) the printing and delivery to the U.S. Underwriters
of copies of the Indenture; (xii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in
connection with the Indenture and the U.S. Underwritten Securities, (xiii) the
preparation, issuance and delivery to the Depository Trust Company for credit to
the accounts of the respective U.S. Underwriters of any global note registered
in the name of Cede & Co., as nominee for the Depository Trust Company; and
(xiv) any transfer taxes imposed on the sale of the U.S. Underwritten Securities
to the several U.S. Underwriters.
If this Agreement is cancelled or terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i), Section 9(a)(iv)
or Section 9(a)(v) hereof, the Company and the Operating Partnership shall
reimburse the U.S. Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the U.S.
Underwriters.
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The
obligations of the U.S. Underwriters hereunder are subject to the accuracy,
as of the date hereof and at Closing Time, of the representations and
warranties of the Company and the Operating Partnership herein contained, to
the performance by the Company and the Operating Partnership of their
respective obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission; (ii) if the Company or the Operating Partnership, as
the case may be, has elected to rely upon Rule 430A of the 1933 Act
Regulations, the public offering price of and the interest rate on the
U.S. Underwritten Securities, as the case may be, and any
price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of
the 1933 Act Regulations within the prescribed time period, and prior
to the applicable Closing Time, the Company or the Operating
Partnership, as the case may be, shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations; (iii) if
Preferred Stock is being offered, the rating assigned by any
nationally recognized statistical rating organization as of the date
of the applicable U.S. Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly
announced that it has placed the Preferred Stock on what is commonly
termed a "watch list" for possible downgrading; (iv) the rating
assigned by any nationally recognized statistical rating organization
to any long-term debt securities of the Operating Partnership as of
the date of the applicable U.S. Terms Agreement shall not have been
lowered since such date nor shall any such rating organization have
publicly announced that it has placed any long-term debt securities of
the Operating Partnership on what is commonly termed a "watch list"
for possible downgrading; and (v) there shall not have come to the
attention of the Representatives any facts that would cause the
Representatives to believe that the U.S. Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the U.S. Underwritten Securities, included
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of
the circumstances
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existing at such time, not misleading. If a Rule 462(b) Registration
Statement is required, such Rule 462(b) Registration Statement shall
have been transmitted to the Commission for filing and have become
effective within the prescribed time period, and, prior to Closing
Time, the Company and the Operating Partnership shall have provided to
the U.S. Underwriters evidence of such filing and effectiveness in
accordance with Rule 462(b) of the 1933 Act Regulations.
(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of Closing Time, of Bose
McKinney & Evans, counsel for each of the Company and the Operating
Partnership and their respective subsidiaries in form and substance
reasonably satisfactory to counsel for the U.S. Underwriters, to the
effect that:
(i) The Company is a corporation duly organized and
existing under and by virtue of the laws of the State of
Indiana, has filed its most recent annual report required by
law with the Secretary of State of Indiana or is not yet
required to file such annual report, and has not filed
Articles of Dissolution. The Company has corporate power and
authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its
properties as described in the U.S. Prospectus and to enter
into and perform its obligations under this Agreement and the
other agreements to which it is a party. The Company is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or
the earnings, assets, business affairs or business prospects
of the Company or any Property.
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue of
the laws of the State of Indiana. The Operating Partnership
has partnership power and authority to conduct the business in
which it is engaged and proposes to engage and to own, lease
and operate its properties as described in the U.S. Prospectus
and to enter into and perform its obligations under this
Agreement and the other agreements to which it is a party.
The Operating Partnership is duly qualified or registered as a
foreign partnership and is in good standing in each
jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify or register would not have a material adverse
effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of
the Operating Partnership or any Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property
Partnerships) has been duly formed, and is validly existing
and in good standing as a corporation or partnership under the
laws of its jurisdiction of organization, with partnership or
corporate power and authority to conduct the business in which
it is engaged or proposes to engage and to own, lease and
operate its properties as described in the U.S. Prospectus.
(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is
duly qualified or registered as a foreign partnership or
corporation in good standing and authorized to do business in
each jurisdiction in which such qualification is required
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify
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would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Duke Group considered as
a single enterprise.
(v) If the applicable U.S. Underwritten Securities
are issued by the Company, and if the U.S. Prospectus contains
the caption "Capitalization," the capital stock of the Company
is as set forth in the column entitled "Historical" under such
caption. All the issued and outstanding shares of capital
stock have been duly authorized and are validly issued, fully
paid and non-assessable. To the best of such counsel's
knowledge, after due inquiry, no shares of capital stock of
the Company are reserved for any purpose except in connection
with stock option and dividend reinvestment plans and the
possible issuance of shares of Common Stock upon the exchange
of Units. To the best of such counsel's knowledge after due
inquiry, except for Units, there are no outstanding securities
convertible into or exchangeable for any capital stock of the
Company, and except for options under a stock option plan,
there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or to subscribe for shares
of such stock or any other securities of the Company.
(vi) All the issued and outstanding Units have been
duly authorized and are validly issued, fully paid and
non-assessable, except as provided under Indiana Code Section
23-16-7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be,
of each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and all such
shares and partnership interests, as the case may be, that are
owned by the Company, the Operating Partnership or a
subsidiary, are in each case owned free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(viii) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the
case may be, and is validly existing and in good standing as a
partnership or a limited liability company under of the laws
of its jurisdiction of organization; each Property Partnership
has all requisite power and authority to own, lease and
operate the Properties, to conduct the business in which it is
engaged and to enter into and perform its respective
obligations under the agreements to which it is a party. Each
of the partnership or operating agreements, as the case may
be, of the Property Partnerships is in full force and effect.
(ix) The applicable U.S. Underwritten Securities, if
such U.S. Underwritten Securities are Common Stock, Preferred
Stock or Depositary Shares, have been duly authorized by the
Company for issuance and sale to the U.S. Underwriters pursuant
to this Agreement, and, when issued and delivered by the Company,
pursuant to this Agreement and the applicable U.S. Terms
Agreement against payment of the consideration set forth in
the U.S. Terms Agreement or any Delayed Delivery Contract,
will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of such U.S.
Underwritten Securities in accordance herewith, each of the
U.S. Underwriters will receive good, valid and marketable
title to such U.S. Underwritten Securities, which to such
counsel's knowledge, after due inquiry, are free and clear of
all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the applicable
U.S. Underwritten Securities conform to all statements and
descriptions related thereto contained in the U.S. Prospectus.
The form of stock or depositary certificate to be used to
evidence the applicable U.S. Underwritten
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Securities is in due and proper form and complies with all
applicable legal requirements. The issuance of the applicable
U.S. Underwritten Securities is not subject to any preemptive
or other similar rights.
(x) The applicable U.S. Underwritten Securities, if
such U.S. Underwritten Securities are Debt Securities, are in
the form contemplated in the Indenture, have been duly
authorized by the Operating Partnership for issuance and sale
to the U.S. Underwriters pursuant to this Agreement and, when
executed, authenticated, issued and delivered in the manner
provided for in this Agreement, the applicable U.S. Terms
Agreement and the applicable Indenture, against payment of the
consideration therefor specified in the applicable U.S. Terms
Agreement or any Delayed Delivery Contract, such Debt
Securities will constitute valid and legally binding
obligations of the Operating Partnership entitled to the
benefits of the Indenture and such Debt Securities will be
enforceable against the Operating Partnership in accordance
with their terms, except as such enforceability may be (1)
limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium or other similar laws affecting the
rights and remedies of creditors generally and (2) subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). Upon payment of the purchase price and delivery of such
U.S. Underwritten Securities in accordance herewith, each of
the U.S. Underwriters will receive good, valid and marketable
title to such U.S. Underwritten Securities, which to such
counsel's knowledge, after due inquiry, are free and clear of
all security interests, mortgages, pledges, liens,
encumbrances, claims and equities. The terms of the
applicable U.S. Underwritten Securities conform to all
statements and descriptions related thereto in the U.S.
Prospectus. Such U.S. Underwritten Securities rank and will
rank on a parity with all unsecured indebtedness (other than
subordinated indebtedness of the Operating Partnership that is
outstanding on the Representation Date or that may be incurred
thereafter) and senior to all subordinated indebtedness of the
Operating Partnership that is outstanding on the
Representation Date or that may be incurred thereafter, except
that such U.S. Underwritten Securities will be effectively
subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's
mortgage.
(xi) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have been duly
and validly authorized and reserved for issuance upon such
conversion or exercise by all necessary action and such stock,
when issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the
issuance of such stock upon such conversion or exercise will
not be subject to preemptive or other similar rights; the
Common Stock so issuable conforms in all material respects to
all statements relating thereto contained in the U.S.
Prospectus.
(xii) To the best knowledge of such counsel, none of
the entities comprising the Duke Group is in violation of its
charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which such entity is a party or by which such entity may be
bound, or to which any of the property or assets of such
entity is subject, except for defaults which are not material
to the Duke Group as a whole.
(xiii) Each of this Agreement, the applicable U.S.
Terms Agreement and the Delayed Delivery Contracts, if any,
were duly and validly authorized, executed
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and delivered by the Company and the Operating Partnership, as
applicable, and the Company and the Operating Partnership have
the power and authority to perform their obligations hereunder
and thereunder.
(xiv) The Indenture has been duly qualified under the
1939 Act and has been duly and validly authorized, executed
and delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the Operating
Partnership, enforceable in accordance with its terms, except
as such enforceability may be (1) limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium or other
similar laws affecting the rights and remedies of creditors
generally and (2) subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law). The Indenture conforms in
all material respects to the descriptions thereof contained in
the U.S. Prospectus.
(xv) Each of the partnership agreements to which any
of the Company, the Operating Partnership or their respective
subsidiaries identified in an exhibit to such counsel's
opinion is a party has been duly authorized, executed and
delivered by such party and constitutes a valid and binding
obligation thereof, enforceable in accordance with its terms,
except as such enforceability may be (1) limited by
bankruptcy, insolvency, reorganization, liquidation,
moratorium or other similar laws affecting the rights and
remedies of creditors generally and (2) subject to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(xvi) The execution and delivery of this Agreement,
the applicable U.S. Terms Agreement, any Indenture and the
U.S. Underwritten Securities, the performance of the
obligations set forth herein or therein, and the consummation
of the transactions contemplated hereby and thereby or in the
U.S. Prospectus by the Company and the Operating Partnership,
will not conflict with or constitute a breach or violation by
the Company or the Operating Partnership of, or default under,
or result in the creation of imposition of any lien, charge or
encumbrance upon any Property or assets of the Duke Group
pursuant to any contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement or other
instrument or agreement known to such counsel, after due
inquiry, to which the Company, the Operating Partnership or
any subsidiary is a party or by which they, either of them,
any of their respective properties or other assets or any
Property may be bound or subject which is material to the Duke
Group as a whole; nor will such action conflict with or
constitute a breach or violation by the Company or the
Operating Partnership of, or default under, (A) the charter,
by-laws, certificate of limited partnership or partnership
agreement, as the case may be, of the Company, the Operating
Partnership or any subsidiary or (B) to the extent it is
material, any applicable law, rule, order, administrative
regulation or administrative or court decree.
(xvii) Assuming the Company was organized in
conformity with and has satisfied the requirements for
qualification and taxation as a "real estate investment trust"
under the Code for each of its taxable years from and
including the first taxable year for which the Company made
the election to be taxed as a "real estate investment trust",
the proposed methods of operation of the Company, the
Operating Partnership and the Services Partnership as described
in the Registration Statement and the Prospectus Supplement
and as represented by the Company, the Operating Partnership
and the
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Services Partnership will permit the Company to continue to
qualify to be taxed as a "real estate investment trust" for
its current and subsequent taxable years.
(xviii) None of the entities comprising the Duke Group
is required to be registered under the 1940 Act or is or will
become a "holding company" or a "subsidiary company" of a
"registered holding company" as defined in the Public Utility
Holding Company Act of 1935, as amended.
(xix) To such counsel's knowledge, after due inquiry,
(i) each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it,
or proposed to be conducted by it, and (ii) none of the
entities comprising the Duke Group has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect on the
condition, financial or otherwise, or the earnings, assets,
business affairs or business prospects of the Duke Group
considered as a single enterprise.
(xx) No authorization, approval, consent or order
of any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the
applicable U.S. Underwritten Securities to the U.S.
Underwriters hereunder, except such as may be required under
the 1933 Act or the 1933 Act Regulations or the 1939 Act or
the 1939 Act Regulations or state or foreign securities laws,
as to which such counsel need express no opinion, or real
estate syndication laws or such as have been received prior to
the date of this Agreement.
(xxi) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under
the 1933 Act, complied when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations thereunder.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the U.S. Prospectus pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied and will comply as to form
in all material respects with the requirements of the 1934 Act
and the 1934 Act Regulations.
(xxiii) The Registration Statement is effective under
the 1933 Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(xxiv) At the time the Registration Statement became
effective and at each of the Representation Dates, the
Registration Statement and the U.S. Prospectus, excluding the
documents incorporated by reference therein, and each
amendment or supplement to the Registration Statement and U.S.
Prospectus, excluding the documents incorporated by reference
therein (other than the financial statements and supporting
schedules and other financial data included therein, as to
which no opinion need be
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rendered), complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
(xxv) There are no legal or governmental proceedings
pending or, to the best of their knowledge and information,
threatened which are required to be disclosed in the
Registration Statement or the U.S. Prospectus, other than
those disclosed therein, and all pending legal or governmental
proceedings to which any of the entities comprising the Duke
Group is a party or to which any of their properties is
subject which are not described in the Registration Statement
or the U.S. Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate,
not material.
(xxvi) The information in the U.S. Prospectus under
"The Company and the Operating Partnership," "Description of
Debt Securities," "Description of Preferred Stock,"
"Description of Depositary Shares," "Description of Common
Stock," and the information in the applicable Prospectus
Supplement under similar sections and, if applicable, "The
Company" or "The Operating Partnership," as the case may be,
to the extent that it constitutes matters of law, summaries of
legal matters, documents or proceedings, or legal conclusions,
has been reviewed by them and is correct and presents fairly
the information required to be disclosed therein.
(xxvii) There are no statutes, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct,
and, to the best knowledge of such counsel, no material
default exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so described,
referred to or filed.
(xxviii) To the best knowledge of such counsel, except
as disclosed in the U.S. Prospectus and except for persons who
received Units in connection with transactions with the
Operating Partnership, there are no persons with registration
or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered
by the Company or the Operating Partnership under the 1933 Act.
(xxix) The Company and the Operating Partnership each
satisfy all conditions and requirements for filing the
Registration Statement on Form S-3 under the 1933 Act and 1933
Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Rogers & Wells, counsel for the U.S. Underwriters, (A) with respect
to the matters set forth in Section 5(b)(1)(i) (with respect to the
Company only and with respect to the first sentence only), Section
5(b)(1)(ix), (with respect to the first and last sentences only) or
5(b)(1)(x) (with respect to the first sentence only), as
applicable, Section 5(b)(1)(xiii) (with respect to the first clause
only), Section 5(b)(1)(xiv) and Section 5(b)(1)(xxiv) and (B)
containing a statement similar to the statement referred to in the
first paragraph of Section 5(b)(3).
(3) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Bose McKinney & Evans and
Rogers & Wells shall additionally state that such counsel has
participated in conferences with officers and other representatives
of the Company or the Operating Partnership, as the case may be,
and the independent public accountants for the
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Company or the Operating Partnership, as the case may be, at which the
contents of the Registration Statement and the U.S. Prospectus and
related matters were discussed and in the preparation of the
Registration Statement and the U.S. Prospectus and, on the basis of
the foregoing, nothing has come to their attention that would lead
them to believe that either the Registration Statement or any
amendment thereto (excluding the financial statements and financial
schedules included or incorporated by reference therein or the
Statement of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an Annual
Report on Form 10-K was filed by the Company and the Operating
Partnership with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the U.S. Prospectus or any amendment or supplement thereto
(excluding the financial statements or financial schedules included
or incorporated by reference therein or the Statement of
Eligibility, as to which such counsel need express no belief), at
the Representation Date or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke
Group and (B) as to the qualification and good standing of each of
the entities comprising the Duke Group to do business in any
jurisdiction, certificates of appropriate government officials or
opinions of counsel in such jurisdictions, and (C) in respect to
the opinion by Rogers & Wells only, as to certain matters of
Indiana law, the opinion of Bose McKinney & Evans given pursuant to
Section 5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law or
in equity shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against any entity belonging to the
Duke Group which would be required to be set forth in the U.S.
Prospectus other than as set forth therein; (ii) there shall not have
been, since the date of the applicable U.S. Terms Agreement or since
the respective dates as of which information is given in the
Registration Statement and the U.S. Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of any entity belonging
to the Duke Group, whether or not arising in the ordinary course of
business; (iii) no proceedings shall be pending or threatened against
such entity or any Property before or by any federal, state or other
commission, board or administrative agency wherein an unfavorable
decision, ruling or finding might result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of any entity belonging
to the Duke Group or any Property, as the case may be, other than as
set forth in the U.S. Prospectus; (iv) no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened by the Commission or by the state securities
authority of any jurisdiction; and (v) the Representatives shall have
received a certificate of the President or a Vice President of the
Company and the Operating Partnership and of the chief financial or
chief accounting officer of each such entity, dated as of the Closing
Time, evidencing compliance with the provisions of this subsection (c)
and stating that the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time.
(d) At the time of the execution of the applicable U.S. Terms
Agreement, the Representatives shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent public accountants with respect to the Company and the
Operating Partnership as required by the 1933 Act and the 1933 Act
Regulations; (ii) it is their opinion that the financial statements
and supporting schedules included in the
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Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail
in such letter, including a reading of the latest available interim
financial statements of the Company and the Operating Partnership, a
reading of the minute books of the Company and the Operating
Partnership, inquiries of officials of the Company and the Operating
Partnership responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing has come to their attention which causes them to believe that
(A) the unaudited financial statements of the Company and the
Operating Partnership included in the Registration Statement, or
incorporated by reference therein, do not comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934
Act Regulations, or material modifications are required for them to be
presented in conformity with generally accepted accounting principles,
(B) the operating data and balance sheet data set forth in the U.S.
Prospectus under the caption "Selected Consolidated Financial Data"
were not determined on a basis substantially consistent with that used
in determining the corresponding amounts in the audited financial
statements included or incorporated by reference in the Registration
Statement, (C) the pro forma financial information included or
incorporated by reference in the Registration Statement was not
determined on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement or (D) at a specified date not more than
five days prior to the date of the applicable U.S. Terms Agreement,
there has been any change in the capital stock or the number of
partnership interests of the Company, the Operating Partnership or
their subsidiaries, as the case may be, or any increase in the debt of
the Company, the Operating Partnership or their subsidiaries or any
decrease in the net assets of the Company, the Operating Partnership
or their subsidiaries, as compared with the amounts shown in the most
recent consolidated balance sheet of the Company, the Operating
Partnership and their subsidiaries, included in the Registration
Statement or incorporated by reference therein, or, during the period
from the date of the most recent consolidated statement of operations
included in the Registration Statement or incorporated by reference
therein to a specified date not more than five days prior to the date
of the applicable U.S. Terms Agreement, there were any decreases, as
compared with the corresponding period in the preceding year, in
revenues, net income or funds from operations of the Company, the
Operating Partnership and their subsidiaries, except in all instances
for changes, increases or decreases which the Registration Statement
and the U.S. Prospectus disclose have occurred or may occur; and (iv)
in addition to the audit referred to in their opinions and the limited
procedures referred to in clause (iii) above, they have carried out
certain specified procedures, not constituting an audit, with respect
to certain amounts, percentages and financial information which are
included in the Registration Statement and U.S. Prospectus and which
are specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company, the
Operating Partnership and their subsidiaries identified in such letter.
(e) At Closing Time, the Representatives shall have received from
KPMG Peat Marwick LLP a letter, dated the Closing Time, to the effect
that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the "specified
date" referred to shall be a date not more than five days prior to
Closing Time.
(f) At Closing Time, the U.S. Underwritten Securities, if such
U.S. Underwritten Securities are Debt Securities, shall be rated
investment grade by one or more nationally recognized statistical
rating organizations and the Operating Partnership shall have
delivered to the Representatives a letter, dated the Closing Time,
from each such rating organization, or other evidence satisfactory to
the Representatives, confirming that such U.S. Underwritten Securities
have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to such U.S.
Underwritten Securities or any of the Operating Partnership's other
debt securities by any nationally recognized securities rating
organization, and no such securities rating organization shall have
publicly announced that it has under
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surveillance or review, with possible negative implications, its rating
of such U.S. Underwritten Securities or any of the Operating
Partnership's other debt securities.
(g) At Closing Time and at each Date of Delivery, if any, counsel
for the U.S. Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the applicable U.S.
Underwritten Securities as contemplated herein, or in order to
evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company or the Operating Partnership, as the
case may be, in connection with the issuance and sale of the
applicable U.S. Underwritten Securities as herein contemplated shall
be reasonably satisfactory in form and substance to the
Representatives and counsel for the U.S. Underwriters.
(h) At Closing Time, the Representatives shall have received a
letter agreement from DMI Partnership and from each director and
executive officer of the Company and the Operating Partnership,
wherein DMI Partnership and each such director or executive officer
shall agree that during the period of 90 days from the date of any
Prospectus Supplement they will not, without the prior written consent
of Merrill Lynch, the Company and the Operating Partnership (which
consent, in the case of the Company and the Operating Partnership,
will be subject to the approval of the Company's unaffiliated
directors), directly or indirectly, sell, offer to sell, grant any
option for the sale of, enter into any agreement to sell, or otherwise
dispose of, (i) any securities of the same class or series or ranking
on a parity with any U.S. Underwritten Securities or any security
convertible into or exchangeable for shares of such U.S. Underwritten
Securities, and (ii) if such Prospectus Supplement relates to
Preferred Stock that is convertible into or exchangeable for Common
Stock, any Common Stock or Units or any security convertible into or
exchangeable for shares of Common Stock. Such transfer restrictions
do not apply to Units exchanged by DMI Partnership pursuant to a Unit
bonus plan for employees of the Company and its subsidiaries. Such
transfer restrictions do not apply to transfers to members of the
family of such director or executive officer (or an entity for their
benefit), or to the granting of a bona fide security interest to a
secured party. Any transferees of such shares, Units or other
securities will be likewise prohibited from making any transfer of
shares, Units or other securities.
(i) In the event that the U.S. Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
and the Operating Partnership contained herein and the statements in
any certificates furnished by the Company and the Operating
Partnership hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(1) A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and the Operating
Partnership and of the chief financial or chief accounting officer
of each such entity confirming that their respective certificates
delivered at Closing Time pursuant to Section 5(c) hereof remain
true and correct as of such Date of Delivery.
(2) The favorable opinion of Bose McKinney & Evans, counsel for
the Company, the Operating Partnership and their respective
subsidiaries, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(1) hereof.
(3) The favorable opinion of Rogers & Wells, counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section
5(b)(2) hereof.
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(4) A letter from KPMG Peat Marwick, in form and substance
satisfactory to the Representatives and dated such Date of
Delivery, substantially the same in form and substance as the
letter furnished to the Representatives pursuant to Section 5(e)
hereof, except that the "specified date" in the letter furnished
pursuant to this Section 5(i)(4) shall be a date not more than five
days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company and the Operating Partnership,
at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each U.S. Underwriter and each
person, if any, who controls any U.S. Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, U.S. Prospectus, preliminary prospectus
supplement or Prospectus Supplement (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this indemnity agreement shall
not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company or the
Operating Partnership by any U.S. Underwriter through Merrill Lynch
expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the U.S. Prospectus (or
any amendment or supplement thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever for which
indemnification is provided under subsection (i) above if such
settlement is effected with the written consent of the indemnifying
party; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever
for which indemnification is provided under subsection (i) above,
to the extent that any such expense is not paid under (i) or (ii)
above.
(b) Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company and the Operating Partnership and each person, if any, who
controls the Company and the Operating Partnership within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with written information furnished to the Company or the
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Operating Partnership by such U.S. Underwriter through Merrill Lynch expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. CONTRIBUTION. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Operating Partnership, on the one hand, and the U.S.
Underwriters, on the other hand, from the offering of the U.S. Underwritten
Securities pursuant to the applicable U.S. Terms Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
and the Operating Partnership, on the one hand, and of the U.S. Underwriters,
on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the U.S. Underwriters, on the other hand,
in connection with the offering of the U.S. Underwritten Securities pursuant
to the applicable U.S. Terms Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
U.S. Underwritten Securities (before deducting expenses) received by the
Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus,
or, if Rule 434 is used, the corresponding location on the Term Sheet, bear
to the aggregate initial public offering price of such U.S. Underwritten
Securities as set forth on such cover.
The relative fault of the Company and the Operating Partnership, on the
one hand, and the U.S. Underwriters, on the other hand, shall be determined
by reference to, among other things, whether any such untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Operating Partnership or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Operating Partnership and the U.S. Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental
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agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Underwritten Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or the Operating Partnership, as the case may be.
The U.S. Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial U.S. Securities set
forth opposite their respective names in the applicable U.S. Terms Agreement and
not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
the applicable U.S. Terms Agreement, or contained in certificates of the
officers of the Company or the Operating Partnership submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
termination of the applicable U.S. Terms Agreement, or any investigation made by
or on behalf of any U.S. Underwriter or controlling person, or by or on behalf
of the Company or the Operating Partnership and shall survive delivery of the
U.S. Underwritten Securities to the U.S. Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate the applicable U.S. Terms
Agreement, by notice to the Company, at any time at or prior to Closing Time
(i) if there has been, since the date of such U.S. Terms Agreement or since
the respective dates as of which information is given in the U.S. Prospectus,
any material adverse change, affecting the Duke Group as a whole, in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of any entity belonging to the Duke Group or of
any Property, whether or not arising in the ordinary course of business; or
(ii) if there has occurred any material adverse change in the financial
markets in the United States or internationally or any outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets of the United States or
internationally is such as to make it, in the judgment of the
Representatives, impracticable to market the U.S. Underwritten Securities or
to enforce contracts for the sale of the U.S. Underwritten Securities; or
(iii) if trading in the Common Stock has been suspended by the Commission or
if trading generally on either the New York Stock Exchange or the American
Stock Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said Exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium has been declared by
either Federal, New York or Indiana authorities; (iv) if Preferred Stock is
being offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company as of
the date of the applicable U.S. Terms Agreement shall have been lowered since
such date or if any such rating organization shall have publicly announced
that it has placed any preferred shares or debt securities of the Company on
what is commonly termed a "watch list" for possible downgrading; or (v) if
the rating assigned by any nationally recognized statistical rating
organization to any long-term debt securities of the Operating Partnership as
of the date of the applicable U.S. Terms Agreement shall have been lowered
since such date or if any such rating organization shall
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have publicly announced that it has placed any long-term debt securities of
the Operating Partnership on what is commonly termed a "watch list" for
possible downgrading. As used in this Section 9(a), the term "U.S.
Prospectus" means the U.S. Prospectus in the form first used to confirm sales
of the U.S. Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated U.S. Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of U.S. Underwritten Securities shall remain in effect
so long as any U.S. Underwriter owns any such U.S. Underwritten Securities
purchased from the Company or the Operating Partnership, as the case may be,
pursuant to the applicable U.S. Terms Agreement and (y) the covenant set forth
in Section 3(i) hereof, the provisions of Section 4 hereof, the indemnity and
contribution agreements set forth in Sections 6 and 7 hereof, and the provisions
of Sections 8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. If one or
more of the U.S. Underwriters shall fail at Closing Time to purchase the U.S.
Underwritten Securities which it or they are obligated to purchase under the
applicable U.S. Terms Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting U.S. Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the U.S. Underwritten Securities to be purchased pursuant to such U.S.
Terms Agreement, each of the non-defaulting U.S. Underwriters named in
such U.S. Terms Agreement shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the U.S.
Underwritten Securities to be purchased pursuant to such U.S. Terms
Agreement, the applicable U.S. Terms Agreement shall terminate without
liability on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default under this
Agreement and the applicable U.S. Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable U.S. Terms Agreement, each of the Representatives or the
Company shall have the right to postpone Closing Time for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or the U.S. Prospectus or in any other documents or
arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the Representatives at Merrill Lynch & Co.,
Merrill Lynch, Pierce Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1201,
attention of Martin J. Cicco; notices to the Company and the Operating
Partnership shall be directed to any of them at 8888 Keystone Crossing, Suite
1200, Indianapolis, Indiana, 46240, attention of Darell E. Zink, Jr.
SECTION 12. PARTIES. This Agreement and the applicable U.S. Terms
Agreement shall each inure to the benefit of and be binding upon the parties
hereto and their respective successors. Nothing expressed or mentioned in
this Agreement or the applicable U.S. Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than those referred
to in Sections 6 and 7 and their heirs and legal representatives, any legal
or equitable right, remedy or claim under or in respect of this Agreement or
the applicable U.S. Terms Agreement or any provision herein or therein
contained. This Agreement and the applicable U.S. Terms Agreement
31
<PAGE>
and all conditions and provisions hereof and thereof are intended to be for
the sole and exclusive benefit of the parties hereto and thereto and their
respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of U.S. Underwritten
Securities from any U.S. Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the U.S. Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
32
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the U.S. Underwriters, the Company and the Operating
Partnership in accordance with its terms.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ Darell E. Zink, Jr.
-----------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
General Partner
By: /s/ Darell E. Zink, Jr.
---------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Martin J. Cicco
--------------------------------
Name: Martin J. Cicco
Title: Managing Director
33
<PAGE>
EXHIBIT A
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[NUMBER AND TITLE OF SECURITIES]
U.S. TERMS AGREEMENT
Dated: [________], 199[__]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that [Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell [__________]
of its [shares of common stock (the "Common Stock")] [shares of preferred
stock (the "Preferred Stock")] [shares of Preferred Stock represented by
depositary shares (the "Depositary Shares")] [Duke Realty Limited Partnership,
an Indiana limited partnership (the "Operating Partnership"), proposes to issue
and sell $[________] aggregate principal amount of its unsecured debt
securities (the "Debt Securities")] (such [Common Stock], [Preferred Stock]
[Depositary Shares]and [Debt Securities] being collectively hereinafter
referred to as the "U.S. Underwritten Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the underwriters
named below (the "U.S. Underwriters") offer to purchase, severally and not
jointly, the respective numbers of Initial U.S. Securities (as defined in the
U.S. Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of U.S. Option Securities (as
defined in the Underwriting Agreement referred to below) to the extent any
are purchased, at the purchase price set forth below.
A-1
<PAGE>
[Number of Shares]
[Principal Amount]
Of Initial
U.S. UNDERWRITER U.S. UNDERWRITTEN SECURITIES
______________
Total $
==============
The U.S. Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option Securities, if any, that may be purchased by the U.S.
Underwriters:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
The U.S. Underwritten Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option Securities, if any, that may be purchased by
the U.S. Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
A-2
<PAGE>
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership --
Common Stock, Preferred Stock, Depositary Shares and Debt Securities - U.S.
Underwriting Agreement" are incorporated by reference in their entirety herein
and shall be deemed to be a part of this U.S. Terms Agreement to the same extent
as if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-3
<PAGE>
Please accept this offer no later than [_____] o'clock P.M. (New York City
time) on [_____] by signing a copy of this U.S. Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
[OTHER REPRESENTATIVES]
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ___________________________________________________
For themselves and as Representatives of the
other named U.S. Underwriters.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:__________________________
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
General Partner
By:__________________________
Name:
Title:
A-4
<PAGE>
EXHIBIT B
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
Dated: [__________], 199[_]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from [Duke Realty
Investments, Inc. (the "Company")] [Duke Realty Limited Partnership (the
"Operating Partnership")], and the [Company][Operating Partnership] agrees to
sell to the undersigned on [__________], 19[__] (the "Delivery Date"),
$[__________] amount of the [Company][Operating Partnership]'s [insert title of
security] (the "Securities"), offered by the [Company][Operating Partnership]'s
U.S. Prospectus dated [__________], 19[__], as supplemented by its Prospectus
Supplement dated [__________], 19[__], receipt of which is hereby acknowledged,
at a purchase price of $[_____ per share] [_____% of the principal amount
thereof, plus accrued interest from [__________], 19[__], to the Delivery Date],
and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the [Company][Operating
Partnership] or its order by [certified or official bank check in New York
Clearing House] [same day] funds at the office of [__________], on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the [Company][Operating Partnership] not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the [Company][Operating Partnership], on or
before [__________], 19[__], shall have sold to the U.S. Underwriters of the
Securities (the "U.S. Underwriters") such amount of the Securities as is to be
sold to them pursuant to the U.S. Terms Agreement dated [__________], 19[__]
between the [Company][Operating Partnership] and the U.S. Underwriters. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
B-1
<PAGE>
Promptly after completion of the sale to the U.S. Underwriters, the
[Company][Operating Partnership] will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinions of counsel for the [Company][Operating Partnership] delivered to the
U.S. Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the [Company][Operating Partnership] that all necessary corporate action for the
due execution and delivery of this contract and the payment for and purchase of
the Securities has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
[Company][Operating Partnership] and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the [Company][Operating Partnership] will not
accept Delayed Delivery Contracts for an aggregate amount of Securities in
excess of $[__________] and that the acceptance of any Delayed Delivery Contract
is in the [Company][Operating Partnership]'s sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the [Company][Operating Partnership], it is
requested that the [Company][Operating Partnership] sign the form of acceptance
on a copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
[Company][Operating Partnership] and the undersigned when such copy is so mailed
or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_______________________________
(Name of Purchaser)
By: ___________________________
(Title)
_______________________________
_______________________________
(Address)
Accepted as of the date first above written.
[DUKE REALTY INVESTMENTS, INC.
By:___________________________
Name:
Title:]
[DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
By: _________________________
Name:
Title:
B-2
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please Print.)
Telephone No.
NAME (INCLUDING AREA CODE)
B-3
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
Common Stock, Preferred Stock, Depositary Shares
and Debt Securities
INTERNATIONAL UNDERWRITING AGREEMENT
September 9, 1997
MERRILL LYNCH INTERNATIONAL
20 Farringdon Road
London EC1M 3NH
England
Ladies and Gentlemen:
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 (the
"Common Stock"), (ii) shares of preferred stock, $.01 par value (the "Preferred
Stock") and (iii) shares of Preferred Stock represented by depositary shares
(the "Depositary Shares"), with an aggregate public offering price of up to
$325,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). Duke Realty Limited Partnership (the "Operating
Partnership") may from time to time offer in one or more series unsecured debt
securities (the "Debt Securities"), with an aggregate principal amount of up to
$220,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale). The Common Stock, Preferred Stock, Depositary Shares 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 Prospectus Supplements as hereinafter defined. The Debt
Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Operating Partnership and a
trustee (a "Trustee"). Each series of Debt Securities may vary, as applicable,
as to aggregate principal amount, maturity date, interest rate or formula and
timing of payments thereof, redemption or repayment provisions, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time. As used herein, "the Lead Managers,"
unless the context otherwise requires, shall mean the parties to whom this
Agreement is addressed together with the other parties, if any, identified in
the applicable International Terms Agreement (as hereinafter defined) as
additional co-managers with respect to International Securities (as hereinafter
defined) purchased pursuant thereto.
Whenever the Company or the Operating Partnership determines to make
an offering of Securities through the Lead Managers or through an underwriting
syndicate managed by the Lead Managers, the Company or the Operating
Partnership, as the case may be, will enter into an agreement (the
"International Terms Agreement") providing for the sale of such Securities (the
"International Securities") to, and the purchase and offering thereof by, the
Lead Managers and such other underwriters, if any, selected by the Lead Managers
as have authorized the Lead Managers to enter into such International Terms
Agreement on their behalf (the "International
<PAGE>
Managers," which term shall include the Lead Managers whether acting alone in
the sale of the International Securities or as a member of an underwriting
syndicate and any International Manager substituted pursuant to Section 10
hereof). The International Terms Agreement relating to the offering of
International Securities shall specify the amount of International Securities
to be initially issued (the "Initial International Securities"), the names of
the International Managers participating in such offering (subject to
substitution as provided in Section 10 hereof), the amount of Initial
International Securities which each such International Manager severally
agrees to purchase, the names of such of the Lead Managers or such other
International Managers acting as co-managers, if any, in connection with such
offering, the price at which the Initial International Securities are to be
purchased by the International Managers from the Company or the Operating
Partnership, as the case may be, the initial public offering price, if any,
of the Initial International Securities, the form, time, date and place of
delivery and payment, any delayed delivery arrangements and any other
variable terms of the Initial International Securities (including, but not
limited to, current ratings, designations, liquidation preferences, voting
and other rights, denominations, interest rates or formulas, interest payment
dates, maturity dates and redemption or repayment provisions applicable to
the Initial International Securities). In addition, each International Terms
Agreement shall specify whether the International Managers will be granted an
option to purchase additional International Securities to cover
over-allotments, if any, and the aggregate amount of International Securities
subject to such option (the "Option International Securities"). As used
herein, the term "International Securities" shall include the Initial
International Securities and all or any portion of the Option International
Securities agreed to be purchased by the International Managers as provided
herein, if any. The International Terms Agreement, which shall be
substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Lead
Managers and the Company or the Operating Partnership, as the case may be.
Each offering of International Securities through the Lead Managers or
through an underwriting syndicate managed by the Lead Managers will be
governed by this Agreement, as supplemented by the applicable International
Terms Agreement.
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Underwriting Agreement") providing
for the sale by the Company of Securities (the "U.S. Underwritten
Securities") through arrangements with certain underwriters in the United
States (the "U.S. Underwriters") for whom Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and such other parties, if any, as are
identified in the applicable U.S. Terms Agreement (as hereinafter defined) as
additional co-managers with respect to the U.S. Underwritten Securities are
acting as such, and the grant by the Company to the U.S. Underwriters of an
option to purchase additional U.S. Underwritten Securities (the "U.S. Option
Securities") solely to cover over-allotments. The initial public offering
price and the purchase price with respect to the U.S. Underwritten Securities
to be initially issued (the "Initial U.S. Securities") are to be set forth in
a separate instrument (the "U.S. Terms Agreement"), the form of which is to
be attached to the U.S. Underwriting Agreement. It is understood that the
Company is not obligated to sell, and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters." The Initial International
Securities and the Initial U.S. Securities are hereinafter collectively referred
to as the "Initial Securities." The Option International Securities and the
U.S. Option Securities are hereinafter collectively referred to as the "Option
Securities." The International Securities and the U.S. Underwritten Securities
are hereinafter collectively referred to as the "Securities."
The Company understands that the International Managers and the U.S.
Underwriters will enter into an Intersyndicate Agreement (the "Intersyndicate
Agreement") providing for the coordination of certain transactions among the
International Managers and the U.S. Underwriters under the direction of Merrill
Lynch with respect to any concurrent offering of U.S. Underwritten Securities
and International Securities. The Company further understands that, except as
otherwise may be agreed by the U.S. Underwriters and the International Managers
in connection with any particular offering of Securities, it is understood that
the U.S. Underwriters may offer and sell Securities pursuant to a U.S. Terms
Agreement outside of the United States and Canada.
2
The Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333-26845) for the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), and the
offering thereof from time to time in accordance with Rule 430A or Rule 415
of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"), and the Company and the Operating Partnership have filed
such amendments thereto as may have been required prior to the execution of
the applicable International Terms Agreement. Such registration statement
(as amended, if applicable) has been declared effective by the Commission and
an Indenture has been qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). Such registration statement and the prospectus
constituting a part thereof (including in each case the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations), together with each prospectus supplement relating to the
offering of International Securities (the "International Prospectus") or the
offering of U.S. Underwritten Securities (the "U.S. Prospectus"), each
pursuant to Rule 415 of the 1933 Act Regulations (each, a "Prospectus
Supplement"), including all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") or otherwise,
are collectively referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided that if any revised prospectus shall be
provided to the Representatives or the Lead Managers by the Company or the
Operating Partnership for use in connection with the offering of Securities
which differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Company or the Operating
Partnership pursuant to Rule 424(b) of the 1933 Act Regulations), the terms
"International Prospectus" and "U.S. Prospectus" shall refer to each such
revised prospectus from and after the time it is first provided to the
International Managers or the U.S. Underwriters, as the case may be, for such
use; provided, further, that a Prospectus Supplement shall be deemed to have
supplemented the Prospectus only with respect to the offering of Securities
to which it relates. Any registration statement (including any supplement
thereto or information which is deemed part thereof) filed by the Company or
the Operating Partnership under Rule 462(b) of the 1933 Act Regulations (a
"Rule 462(b) Registration Statement") shall be deemed to be part of the
Registration Statement. Any prospectus (including any amendment or
supplement thereto or information which is deemed part thereof) included in
the Rule 462(b) Registration Statement and any term sheet as contemplated by
Rule 434 of the 1933 Act Regulations (a "Term Sheet") shall be deemed to be
part of the Prospectus. All references in this Agreement to financial
statements and schedules and other information which is "contained,"
"included" or "stated" in the Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is or is deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
The term "subsidiary" means a corporation or a partnership a majority
of the outstanding voting stock or partnership interests, as the case may be, of
which is owned or controlled, directly or indirectly, by the Company or the
Operating Partnership, as the case may be, or by one or more other subsidiaries
of the Company or the Operating Partnership.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
OPERATING PARTNERSHIP.
(a) The Company and the Operating Partnership represent and warrant,
jointly and severally, to the Lead Managers, as of the date hereof, and to the
Lead Managers and each other International Manager named in the applicable
International Terms Agreement, as of the date thereof, as of the Closing Time
(as defined below) and, if applicable, as of each Date of Delivery (as defined
below) (in each case, an "International Representation Date"), as follows:
(i) The Registration Statement and the International Prospectus,
at the time the Registration Statement became effective, complied, and as of
each International Representation Date will
3
<PAGE>
comply, in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations and the 1939 Act and the rules and regulations
thereunder (the "1939 Act Regulations"). The Registration Statement, at the
time the Registration Statement became effective, did not, and as of each
International Representation Date, will not, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
International Prospectus, as of the date hereof does not, and as of each
International Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to you by the Company or the Operating
Partnership for use in connection with an offering of Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it is
first provided to you for such use), Closing Time and Date of Delivery, if
any, will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or International Prospectus made in reliance upon and
in conformity with information furnished to the Company or the Operating
Partnership in writing by any International Manager through the Lead
Managers expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which shall constitute the Statement
of Eligibility on Form T-1 under the 1939 Act (the "Statement of
Eligibility") of a Trustee under an Indenture. If a Rule 462(b)
Registration Statement is required in connection with the offering and sale
of the Securities, the Company and the Operating Partnership have complied
or will comply with the requirements of Rule 111 under the 1933 Act
Regulations relating to the payment of filing fees therefor.
(ii) Each preliminary International prospectus, International
Prospectus, preliminary prospectus supplement and Prospectus Supplement
filed as part of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied or will comply when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the International Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
International Prospectus, at the time the Registration Statement became
effective and as of the applicable International Representation Date or
during the period specified in Section 3(f), did not and will not include
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(iv) KPMG Peat Marwick LLP, the accounting firm that audited the
financial statements and supporting schedules included in, or incorporated
by reference into, the Registration Statement and International Prospectus,
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(v) The financial statements included in, or incorporated by
reference into, the Registration Statement and the International Prospectus,
together with the related schedules and notes, present fairly the financial
position of the respective entity or entities presented therein at the
respective dates indicated and the results of their operations for the
respective periods specified. Except as otherwise stated in the
Registration Statement and International Prospectus, said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The supporting schedules included or incorporated by reference in
the Registration Statement and the International Prospectus present fairly
the information required to be stated
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therein. The Company's ratios of earnings to fixed charges (actual and, if
any, pro forma) included in the Prospectus under the caption "Selected
Consolidated Financial Data" and in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of the
Commission. The financial information and data included in the
Registration Statement and the International Prospectus present fairly the
information included therein and have been prepared on a basis consistent
with that of the financial statements included or incorporated by reference
in the Registration Statement and the International Prospectus and the books
and records of the respective entities presented therein. Pro forma
financial information included in or incorporated by reference in the
Registration Statement and the International Prospectus has been prepared in
accordance with the applicable requirements of the 1933 Act, the 1933 Act
Regulations and guidelines of the American Institute of Certified Public
Accountants with respect to pro forma financial information and includes all
adjustments necessary to present fairly the pro forma financial position of
the Operating Partnership and the Company, as applicable, at the respective
dates indicated and the results of operations for the respective periods
specified.
(vi) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no proceeding
for that purpose has been instituted or is pending or, to the knowledge of
the Company or the Operating Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction, and any request on the
part of the Commission for additional information has been complied with.
No order preventing or suspending the use of the International Prospectus
has been issued and no proceeding for that purpose has been instituted or,
to the knowledge of the Company or the Operating Partnership, threatened by
the Commission or by the state securities authority of any jurisdiction.
(vii) Since the respective dates as of which information is given
in the Registration Statement and the International Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Operating Partnership and
any of their respective subsidiaries, whether or not arising in the ordinary
course of business; (B) there has been no adverse change, material to the
Duke Group (as hereinafter defined) as a whole, in the condition, financial
or otherwise, or in the earnings, assets, business affairs or business
prospects of any of the real properties owned, directly or indirectly, by
the Company, the Operating Partnership or any subsidiary (the "Properties")
or any entity wholly or partially owned by the Company, the Operating
Partnership or any subsidiary which owns any Property (a "Property
Partnership") (the Company, the Operating Partnership, the subsidiaries and
the Property Partnerships are hereinafter jointly referred to as the "Duke
Group"), whether or not arising in the ordinary course of business; (C) no
material casualty loss or material condemnation or other material adverse
event with respect to any Property has occurred; (D) there have been no
transactions or acquisitions entered into by the Duke Group, other than
those arising in the ordinary course of business, which are material with
respect to the Duke Group as a whole; (E) neither the Company, the Operating
Partnership nor any of their respective subsidiaries has incurred any
obligation or liability, direct, contingent or otherwise which is material
to the Duke Group as a whole; (F) there has been no material change in the
short-term debt or long-term debt of the Duke Group as a whole; (G) except
for regular quarterly dividends on the Common Stock and dividends on the
Preferred Stock in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock; and (H) with the
exception of transactions in connection with stock option and dividend
reinvestment plans, the issuance of shares of Common Stock upon the exchange
of partnership interests in the Operating Partnership ("Units") and the
issuance of Units in connection with the acquisition of real or personal
property, there has been no change in the capital stock or in the
partnership interests, as the case may be, of the Company, the Operating
Partnership or any subsidiary.
(viii) Each of the Company and the Operating Partnership has been
duly formed, and is validly existing and in good standing as a corporation
or partnership under the laws of its jurisdiction of organization, with
corporate or partnership power and authority to conduct the business in
which it is
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engaged or proposes to engage and to own, lease and operate its
properties as described in the International Prospectus and to enter into
and perform its obligations under this Agreement, the International Terms
Agreement and the Indenture.
(ix) Each of the Company's and the Operating Partnership's
subsidiaries has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its jurisdiction
of organization, with corporate or partnership power and authority to
conduct the business in which it is engaged or proposes to engage and to
own, lease and operate its properties as described in the International
Prospectus.
(x) Each of the Company, the Operating Partnership, their
respective subsidiaries and the Property Partnerships is duly qualified or
registered as a foreign partnership or corporation in good standing and
authorized to do business in each jurisdiction in which such qualification
is required whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the Duke Group
considered as a single enterprise (a "Material Adverse Effect").
(xi) If the applicable International Securities are issued by the
Company, and if the International Prospectus contains the caption
"Capitalization," the authorized, issued and outstanding shares of capital
stock of the Company as of the date specified therein is as set forth in the
column entitled "Historical" under such caption. All the issued and
outstanding shares of capital stock of the Company have been duly authorized
and are validly issued, fully paid and non-assessable and have been offered
and sold in compliance with all applicable laws (including, without
limitation, federal, state or foreign securities laws) and none of such
shares of capital stock was issued in violation of preemptive or other
similar rights of any securityholder of the Company.
(xii) If the applicable International Securities are issued by the
Operating Partnership, and if the International Prospectus contains the
caption "Capitalization," the partner's equity of the Operating Partnership
is as set forth in the column entitled "Historical" under such caption. All
the issued and outstanding Units have been duly authorized and are validly
issued, fully paid and non-assessable, except as provided under Indiana Code
Section 23-16-7-8, and have been offered and sold or exchanged in
compliance with all applicable laws (including, without limitation, federal,
state or foreign securities laws).
(xiii) All of the issued and outstanding shares of capital stock
and partnership interests, as the case may be, of each subsidiary have been
validly issued and fully paid and, other than the Property Partnerships,
Duke Realty Services Limited Partnership (the "Services Partnership") and
Duke Construction Limited Partnership (the "Construction Partnership"), are
owned by the Company, the Operating Partnership or a subsidiary, in each
case free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. Neither the Company nor the Operating
Partnership owns any direct or indirect equity interest in any entity other
than the subsidiaries and the Property Partnerships, except for such
interests as, in the aggregate, are not material to the condition, financial
or otherwise, or the earnings, assets, business affairs or business
prospects of the Duke Group considered as a single enterprise. Duke
Services, Inc. is the sole general partner and a 1% owner of the Services
Partnership, and the Operating Partnership and DMI Partnership are the sole
limited partners and 9% and 90% owners, respectively, of the Services
Partnership. The Services Partnership is the sole general partner and a 1%
owner of the Construction Partnership. The 99% limited partnership interest
of the Construction Partnership is owned by Duke Realty Construction, Inc.,
an Indiana corporation which is owned 4.04% by the Services Partnership and
95.96% by DMI Partnership.
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<PAGE>
(xiv) Except for transactions described in the International
Prospectus and transactions in connection with dividend reinvestment plans,
and stock option and other employee benefit plans, there are no outstanding
rights, warrants or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the sale
or issuance of, any shares of capital stock of or partnership or other
equity interest in the Company, the Operating Partnership or any subsidiary
except for the shares of Common Stock which may be issued in exchange for
Units.
(xv) Each of the Property Partnerships has been duly formed as a
partnership or a limited liability company, as the case may be, and is
validly existing and in good standing as a partnership or limited liability
company under the laws of its jurisdiction of organization and, if formed
under the laws of a jurisdiction other than the State of Indiana, in good
standing under the laws of such jurisdiction; each of the Property
Partnerships has the requisite power and authority to own, lease and operate
its properties, to conduct the business in which it is engaged and to enter
into and perform its respective obligations under the agreements, to which
it is a party. Each of the partnership or operating agreements, as the case
may be, of the Property Partnerships is in full force and effect.
(xvi) The applicable International Securities, if such
International Securities are either Common Stock, Preferred Stock or
Depositary Shares, have been duly authorized by the Company for issuance and
sale to the International Managers pursuant to this Agreement, and, when
issued and delivered by the Company pursuant to this Agreement and the
applicable International Terms Agreement against payment of the
consideration set forth in the International Terms Agreement or any Delayed
Delivery Contract (as defined in Section 2 hereof), will be validly issued,
fully paid and non-assessable. Upon payment of the purchase price and
delivery of such International Securities in accordance herewith, each of
the International Managers will receive good, valid and marketable title to
such International Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The terms of
such applicable International Securities conform to all statements and
descriptions related thereto contained in the International Prospectus. The
form of stock or depositary certificate to be used to evidence the
applicable International Securities will be in due and proper form and will
comply with all applicable legal requirements. The issuance of such
applicable International Securities is not subject to any preemptive or
other similar rights.
(xvii) The applicable International Securities, if such
International Securities are Debt Securities, are in the form contemplated
by the Indenture, have been duly authorized by the Operating Partnership for
issuance and sale to the International Managers pursuant to this Agreement
and, when executed, authenticated, issued and delivered in the manner
provided for in this Agreement, any International Terms Agreement and the
applicable Indenture, against payment of the consideration therefor
specified in the applicable International Terms Agreement or any Delayed
Delivery Contract (as defined in Section 2 hereof), such Debt Securities
will constitute valid and legally binding obligations of the Operating
Partnership, entitled to the benefits of the Indenture and such Debt
Securities will be enforceable against the Operating Partnership in
accordance with their terms. Upon payment of the purchase price and
delivery of such International Securities in accordance herewith, each of
the International Managers will receive good, valid and marketable title to
such International Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The terms of
such applicable International Securities conform to all statements and
descriptions related thereto in the International Prospectus. Such
International Securities rank and will rank on a parity with all unsecured
indebtedness (other than subordinated indebtedness) of the Operating
Partnership that is outstanding on the International Representation Date or
that may be incurred thereafter, and senior to all subordinated indebtedness
of the Operating Partnership that is outstanding on the International
Representation Date or that may be incurred thereafter, except that such
International Securities will be effectively subordinated to the prior
claims of each secured mortgage lender to any specific Property which
secures such lender's mortgage.
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<PAGE>
(xviii) If applicable, the Common Stock issuable upon conversion
of any of the Preferred Stock (including Preferred Stock represented by
Depositary Shares) will have been duly and validly authorized and reserved
for issuance upon such conversion or exercise by all necessary action and
such stock, when issued upon such conversion or exercise, will be duly and
validly issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to preemptive or
other similar rights; the Common Stock so issuable conforms in all material
respects to all statements relating thereto contained in the International
Prospectus.
(xix) The International Securities being sold pursuant to the
applicable International Terms Agreement will conform in all material
respects to the statements relating thereto contained in the International
Prospectus and will be in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement, the International Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and/or filed as required and the
descriptions thereof or references thereto are correct in all material
respects and no material defaults exist in the due performance or observance
of any material obligation, agreement, covenant or condition contained in
any such contract or document.
(xxi) None of the entities comprising the Duke Group is in
violation of its charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, or in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which such entity may be
bound, or to which any of its property or assets is subject, which default
separately or in the aggregate would have a Material Adverse Effect.
(xxii) (A) This Agreement has been duly and validly authorized,
executed and delivered by the Company and the Operating Partnership, and,
assuming due authorization, execution and delivery by the Lead Managers,
constitutes a valid and binding obligation of the Company and the Operating
Partnership, enforceable in accordance with its terms, and (B) at the
International Representation Date, the International Terms Agreement and the
Delayed Delivery Contracts (as defined in Section 2 hereof), if any, will
have been duly and validly authorized, executed and delivered by the Company
and the Operating Partnership, as the case may be, and, assuming due
authorization, execution and delivery by the Lead Managers will be valid and
binding agreements, enforceable in accordance with its or their terms.
(xxiii) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, has been duly and validly authorized, executed and
delivered by the Operating Partnership, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the Operating
Partnership, enforceable in accordance with its terms, and (B) conforms in
all material respects to the description thereof in the International
Prospectus.
(xxiv) Each of the partnership agreements to which any of the
Company, the Operating Partnership or their respective subsidiaries is a
party has been duly authorized, executed and delivered by such party and
constitutes a valid and binding obligation thereof, enforceable in
accordance with its terms.
(xxv) The execution and delivery of this Agreement, the applicable
International Terms Agreement, any Indenture and any deposit agreement and
the issuance of the International Securities, the performance of the
obligations set forth herein or therein, and the consummation of the
transactions contemplated hereby and thereby or in the International
Prospectus by the Company and the Operating Partnership, will not conflict
with or constitute a breach or violation by the Company or the Operating
Partnership of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance
8
<PAGE>
upon any Property or assets of the Duke Group pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement to which the Company,
the Operating Partnership or any subsidiary is a party or by which they,
either of them, any of their respective properties or other assets or any
Property may be bound or subject which is material to the Duke Group as a
whole; nor will such action conflict with or constitute a breach or
violation by the Company or the Operating Partnership of, or default under,
(A) the charter, by-laws, certificate of limited partnership or partnership
agreement, as the case may be, of the Company, the Operating Partnership or
any subsidiary or (B) to the extent it is material, any applicable law,
rule, order, administrative regulation or administrative or court decree.
(xxvi) No labor dispute with the employees of the Duke Group
exists or, to the knowledge of the Company or the Operating Partnership, is
imminent; and neither the Company nor the Operating Partnership is aware of
any existing or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors which might be expected to
have a Material Adverse Effect.
(xxvii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Company or the Operating Partnership, threatened
against or affecting any entity belonging to the Duke Group, any Properties
or any officer or director of the Company, which is material to the Duke
Group as a whole and is required to be disclosed in the Registration
Statement or the International Prospectus (other than as disclosed therein),
or that, if determined adversely to any entity belonging to the Duke Group
or any Property, or any such officer or director, will or could reasonably
be expected to result in any Material Adverse Effect, or which might
materially and adversely affect the Properties or assets of the Duke Group
or which might materially and adversely affect the consummation of this
Agreement, the applicable International Terms Agreement, the Indenture, if
any, or the transactions contemplated herein and therein. There are no
pending legal or governmental proceedings to which any entity belonging to
the Duke Group is a party or of which they or any of their respective
properties or assets or any Property or Property Partnership is the subject,
including ordinary routine litigation incidental to the business, that are,
considered in the aggregate, material to the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of the Duke Group as a whole. There are no statutes or contracts or
documents of the entities comprising the Duke Group which are required to be
filed as exhibits to the Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed.
(xxviii) No authorization, approval, consent or order of any court
or governmental authority or agency is required that has not been obtained
in connection with the consummation by the Company, the Operating
Partnership or both, as the case may be, of the transactions contemplated by
this Agreement, the applicable International Terms Agreement, or the
applicable Indenture, if any, except such as may be required under the 1933
Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act Regulations
or state or foreign securities laws or real estate syndication laws or such
as have been received prior to the date of this Agreement.
(xxix) At all times since February 13, 1986, the Company has been,
and upon the sale of the applicable International Securities, the Company
will continue to be, organized and operated in conformity with the
requirements for qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), and its proposed
method of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxx) None of the entities comprising the Duke Group is required
to be registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), or is or will become a "holding company" or a "subsidiary
company" of a "registered holding company" as defined in the Public Utility
Holding Company Act of 1935, as amended.
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(xxxi) None of the entities comprising the Duke Group is required
to own or possess any trademarks, service marks, trade names or copyrights
not now lawfully owned, possessed or licensed in order to conduct the
business now operated by such entity.
(xxxii) Each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, or proposed to be conducted by it, and none
of the entities comprising the Duke Group has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(xxxiii) Except as disclosed in the International Prospectus and
except for persons who received Units in connection with transactions with
the Operating Partnership, there are no persons with registration or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the
Operating Partnership under the 1933 Act.
(xxxiv) The Common Stock will be listed on the New York Stock
Exchange on the applicable International Representation Date and at the
applicable Closing Time. Unless otherwise agreed upon with reference to
Preferred Stock, as of the applicable International Representation Date the
Preferred Stock will have been approved for listing on the New York Stock
Exchange upon notice of issuance.
(xxxv) The Debt Securities will have an investment grade rating
from one or more nationally recognized statistical rating organizations at
the International Representation Date and at the applicable Closing Time.
(xxxvi) (A) With respect to the Properties, the Company or the
Operating Partnership and the Property Partnerships have good and marketable
title to all items of real property (and improvements thereon), leasehold
interests and general and limited partnership interests, in each case free
and clear of all liens, encumbrances, claims, security interests and
defects, except such as are (i) described in the International Prospectus or
the Company's Annual Report on Form 10-K for the most recently ended fiscal
year, (ii) referred to in the title policies of such Properties, (iii)
serving as security for loans described in the International Prospectus, and
(iv) nonmaterial and placed on a Property in connection with such Property's
development; (B) all contracts of the Operating Partnership and any
subsidiary to provide leasing, property management and construction
management services, general contractor services for third parties, and real
estate development, construction and miscellaneous tenant services
businesses (the "Related Businesses"), are enforceable by and in the name of
the Operating Partnership and the applicable subsidiary, as the case may be;
(C) all liens, charges, encumbrances, claims, or restrictions on or
affecting any of the Properties or Related Businesses and the assets of the
entities comprising the Duke Group which are required to be disclosed in the
International Prospectus are disclosed therein; (D) neither the Operating
Partnership, any Property Partnership nor any tenant of any of the
Properties is in default under any of the ground leases (as lessee) or space
leases (as lessor) relating to, or any of the mortgages or other security
documents or other agreements encumbering or otherwise recorded against, the
Properties, and none of the entities comprising the Duke Group knows of any
event which, but for the passage of time or the giving of notice, or both,
would constitute a default under any of such documents or agreements, other
than such defaults that would not have a Material Adverse Effect; (E) no
tenant under any of the leases, pursuant to which the Operating Partnership
or any Property Partnership, as lessor, leases its Property, has an option
or right of first refusal to purchase the premises demised under such lease,
the exercise of which would have a Material Adverse Effect; (F) each of the
Properties complies with all applicable codes, laws and regulations
(including, without limitation, building and zoning codes, laws and
regulations and laws relating to access to the Properties), except for such
failures to comply that would not individually or in the aggregate have a
Material Adverse Effect; and (G) neither the Company nor the Operating
Partnership has knowledge of any pending or threatened condemnation
proceedings, zoning change, or other proceeding
10
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or action that will in any manner affect the size of, use of, improvements
on, construction on or access to the Properties, except such proceedings or
actions that would not have a Material Adverse Effect.
(xxxvii) Immediately following the application of the proceeds of
the sale of the International Securities in the manner set forth in the
International Prospectus, the mortgages and deeds of trust encumbering the
Properties and assets described in the International Prospectus will not be
convertible and none of the Property Partnerships nor any person related to
or affiliated with the Property Partnerships will hold a participating
interest therein and said mortgages and deeds of trust will not be
cross-defaulted or cross-collateralized with any property not owned by the
Operating Partnership.
(xxxviii) Each of the Company, the Operating Partnership and their
respective subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and none
of the Company, the Operating Partnership and their respective subsidiaries
has any reason to believe that it or any of its subsidiaries will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its businesses at a cost that would not have a
Material Adverse Effect, except as described in or contemplated by the
Registration Statement and the International Prospectus.
(xxxix) The Company and the Operating Partnership have not taken
and will not take, directly or indirectly, any action prohibited by
Regulation M under the 1934 Act.
(xl) The assets of the Company do not constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended.
(xli) Except as disclosed in the International Prospectus, and,
with respect to clauses (A), (B) and (C) below, except for activities,
conditions, circumstances or matters that would not have a Material Adverse
Effect, (A) each Property, including, without limitation, the Environment
(as defined below) associated with such Property, is free of any Hazardous
Substance (as defined below), (B) neither the Company nor the Operating
Partnership nor any Property Partnership has caused or suffered to occur any
Release (as defined below) of any Hazardous Substance into the Environment
on, in, under or from any Property, and no condition exists on, in, under or
from any Property, to the knowledge of the Company or the Operating
Partnership, that could result in the incurrence of material liabilities or
any material violations of any Environmental Law (as defined below), give
rise to the imposition of any Lien (as defined below) under any
Environmental Law, or cause or constitute a health, safety or environmental
hazard to any property, person or entity; (C) neither the Company, the
Operating Partnership nor any Property Partnership is engaged in or intends
to engage in any manufacturing or any other operations at the Properties
that (1) require the use, handling, transportation, storage, treatment or
disposal of any Hazardous Substance or (2) require permits or are otherwise
regulated pursuant to any Environmental Law, other than permits which have
been obtained; (D) neither the Company nor the Operating Partnership nor any
Property Partnership has received any notice of a claim material to the Duke
Group as a whole under or pursuant to any Environmental Law or under common
law pertaining to Hazardous Substances on or originating from any Property;
(E) neither the Company nor the Operating Partnership nor any Property
Partnership has received any notice from any Governmental Authority (as
defined below) claiming any violation of any Environmental Law; and (F) no
Property is included or, to the knowledge of the Company or the Operating
Partnership, proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or, with the exception of one Property, in
respect to which the EPA has advised the Company that no further remedial
action is planned, on the Comprehensive Environmental Response,
Compensation, and Liability Information System database maintained by the
EPA, and has not otherwise been identified by the EPA as a potential CERCLA
removal, remedial or response site or included or, to the knowledge of the
Company
11
<PAGE>
or the Operating Partnership, proposed for inclusion on, any similar
list of potentially contaminated sites pursuant to any other Environmental
Law.
Excluding such customary amounts as may be lawfully generated, stored,
used, treated, disposed of, or otherwise handled or located at any Property,
as used herein "Hazardous Substance" shall include, without limitation, any
hazardous substance, hazardous waste, toxic or dangerous substance,
pollutant, toxic waste or similarly designated materials, including, without
limitation, oil, petroleum or any petroleum-derived substance or waste,
asbestos or asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation or any
constituent of any such substance, pollutant or waste, including any such
substance, pollutant or waste identified or regulated under any
Environmental Law (including, without limitation, materials listed in the
United States Department of Transportation Optional Hazardous Material
Table, 49 C.F.R. Section 172.101, as the same may now or hereafter be
amended, or in the EPA's List of Hazardous Substances and Reportable
Quantities, 40 C.F.R. Part 3202, as the same may now or hereafter be
amended); "Environment" shall mean any surface water, drinking water, ground
water, land surface, subsurface strata, river sediment, buildings,
structures, and ambient, workplace and indoor and outdoor air;
"Environmental Law" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601
et seq.) ("CERCLA"), the Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. Section 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. Section 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. Section 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. Section 2601, et seq.), the Occupational Safety and Health Act
of 1970, as amended (29 U.S.C. Section 651, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Section 1801, et seq.),
and all other federal, state and local laws, ordinances, regulations, rules,
orders, decisions and permits relating to the protection of the environments
or of human health from environmental effects; "Governmental Authority"
shall mean any federal, state or local governmental office, agency or
authority having the duty or authority to promulgate, implement or enforce
any Environmental Law; "Lien" shall mean, with respect to any Property, any
mortgage, deed of trust, pledge, security interest, lien, encumbrance,
penalty, fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, emanating or disposing of any Hazardous Substance into
the Environment, including, without limitation, the abandonment or discard
of barrels, containers, tanks (including, without limitation, underground
storage tanks) or other receptacles containing or previously containing any
Hazardous Substance or any release, emission, discharge or similar term, as
those terms are defined or used in any Environmental Law.
(xlii) Each of the Company, the Operating Partnership and their
subsidiaries has obtained title insurance on all of the properties owned by
each of them in an amount at least equal to (A) the cost to acquire land and
improvements in the case of an acquisition of improved property or (B) the
cost to acquire land in the case of an acquisition of unimproved property
and in each case such title insurance is in full force and effect.
(xliii) Each of the Company and the Operating Partnership has
filed all federal, state, local and foreign income tax returns which have
been required to be filed (except in any case in which the failure to so
file would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, assets, business affairs or business prospects
of such entity) and has paid all taxes required to be paid and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except, in all cases, for any such tax,
assessment, fine or penalty that is being contested in good faith.
(b) Any certificate signed by any officer of the Company, the
Operating Partnership or of any of their respective subsidiaries and
delivered to the Lead Managers or to counsel for the International Managers
shall be deemed a representation and warranty by such entity to each
International Manager as to the matters covered thereby.
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SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) The several commitments of the International Managers to purchase
the International Securities pursuant to the applicable International Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
set forth herein or in the applicable International Terms Agreement.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth,
the Company or the Operating Partnership, as the case may be, may grant, if
so provided in the applicable International Terms Agreement relating to the
Initial International Securities, an option to the International Managers
named in such International Terms Agreement, severally and not jointly, to
purchase up to the number of Option International Securities set forth
therein at the same price per Option International Security as is applicable
to the Initial International Securities, less an amount equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial International Securities but not payable on the Option International
Securities. Such option, if granted, will expire 30 days (or such lesser
number of days as may be specified in the applicable International Terms
Agreement) after the International Representation Date relating to the
Initial International Securities, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Lead Managers to the Company or
the Operating Partnership, as the case may be, setting forth the number of
Option International Securities as to which the several International
Managers are then exercising the option and the time, date and place of
payment and delivery for such Option International Securities. Any such
time, date and place of delivery (a "Date of Delivery") shall be determined
by the Lead Managers, but shall not be later than seven full business days
nor earlier than two full business days after the exercise of said option,
nor in any event prior to the Closing Time, unless otherwise agreed upon by
the Lead Managers and the Company or the Operating Partnership, as the case
may be. If the option is exercised as to all or any portion of the Option
International Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number
of Option International Securities then being purchased which the number of
Initial International Securities each such International Manager has
severally agreed to purchase as set forth in the applicable International
Terms Agreement bears to the total number of Initial International Securities
(except as otherwise provided in the applicable International Terms
Agreement), subject to such adjustments as the Lead Managers in their
discretion shall make to eliminate any sales or purchases of fractional
International Securities.
(c) Payment of the purchase price for, and delivery of certificates
for, the Initial International Securities to be purchased by the International
Managers shall be made at the offices of Rogers & Wells, 200 Park Avenue, New
York, New York 10166, or at such other place as shall be agreed upon by the Lead
Managers and the Company or the Operating Partnership, as the case may be, at
10:00 A.M. on the fourth business day (or the third business day if required
under Rule 15c6-1 of the 1934 Act, or unless postponed in accordance with the
provisions of Section 10) following the date of the applicable International
Terms Agreement or at such other time as shall be agreed upon by the Lead
Managers and the Company (such time and date of payment and delivery being
herein called the "Closing Time"). In addition, in the event that any or all of
the Option International Securities are purchased by the International Managers,
payment of the purchase price for, and delivery of certificates for, such Option
International Securities shall be made at the above-mentioned offices of Rogers
& Wells, or at such other place as shall be agreed upon by the Lead Managers and
the Company or the Operating Partnership, as the case may be, on each Date of
Delivery as specified in the notice from the Lead Managers to the Company.
Payment shall be made to the Company or the Operating Partnership, as
the case may be, by wire transfer of immediately available funds to a bank
account designated by the Company or the Operating Partnership, as the case may
be, against delivery to the Lead Managers for the respective accounts of the
International Managers of the International Securities to be purchased by them.
Certificates for the International Securities and the Option International
Securities, if any, shall be in such denominations and registered in such names
as the Lead Managers may request in writing at least two business days before
the Closing Time or the relevant Date of Delivery, as the
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case may be. It is understood that each International Manager has authorized
the Lead Managers, for its account, to accept delivery of, receipt for, and
make payment of the purchase price for, the International Securities and the
Option International Securities, if any, which it has agreed to purchase.
The Lead Managers, individually and not as representatives of the
International Managers, may (but shall not be obligated to) make payment of
the purchase price for the International Securities or the Option
International Securities, if any, to be purchased by any International
Manager whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but any such payment shall not
relieve such International Manager from its obligations hereunder. The
certificates for the Initial International Securities and the Option
International Securities, if any, will be made available for examination and
packaging by the Lead Managers not later than 10:00 A.M. on the last business
day prior to the Closing Time or the relevant Date of Delivery, as the case
may be, in New York, New York.
If authorized by the applicable International Terms Agreement, the
International Managers named therein may solicit offers to purchase
International Securities from the Company or the Operating Partnership, as the
case may be, pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") substantially in the form of Exhibit B hereto with such changes
therein as the Company or the Operating Partnership, as the case may be, may
approve. As compensation for arranging Delayed Delivery Contracts, the Company
or the Operating Partnership, as the case may be, will pay to the Lead Managers
at Closing Time, for the respective accounts of the International Managers, a
fee equal to that percentage of the amount of International Securities for which
Delayed Delivery contracts are made at the applicable Closing Time as is
specified in the applicable International Terms Agreement. Any Delayed Delivery
Contracts are to be with institutional investors of the types described in the
International Prospectus. At the applicable Closing Time, the Company or the
Operating Partnership, as the case may be, will enter into Delayed Delivery
Contracts (for not less than the minimum amount of International Securities per
Delayed Delivery Contract specified in the applicable International Terms
Agreement) with all purchasers proposed by the International Managers and
previously approved by the Company or the Operating Partnership, as the case may
be, as provided below, but not for an aggregate principal amount of
International Securities in excess of that specified in the applicable
International Terms Agreement. The International Managers will not have any
responsibility for the validity or performance of Delayed Delivery Contracts.
The Lead Managers shall submit to the Company or the Operating
Partnership, as the case may be, at least three business days prior to the
applicable Closing Time, the names of any institutional investors with which it
is proposed that the Company or the Operating Partnership, as the case may be,
will enter into Delayed Delivery Contracts and the amount of International
Securities to be purchased by each of them, and the Company or the Operating
Partnership, as the case may be, will advise the Lead Managers at least two
business days prior to the applicable Closing Time, of the names of the
institutions with which the making of Delayed Delivery Contracts is approved by
the Company or the Operating Partnership, as the case may be, and the amount of
International Securities to be covered by each such Delayed Delivery Contract.
The amount of International Securities agreed to be purchased by the
several International Managers pursuant to the applicable International Terms
Agreement shall be reduced by the amount of International Securities covered by
Delayed Delivery Contracts, as to each International Manager as set forth in a
written notice delivered by the Lead Managers to the Company or the Operating
Partnership, as the case may be; provided, however, that the total amount of
International Securities to be purchased by all International Managers shall be
the total amount of International Securities covered by the applicable
International Terms Agreement, less the amount of International Securities
covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY AND THE OPERATING PARTNERSHIP. Each
of the Company and the Operating Partnership covenants with the Lead Managers,
and with each International Manager participating in the offering of
International Securities, as follows:
(a) In respect to each offering of International Securities, the
Company or the Operating Partnership, as the case may be, will prepare a
Prospectus Supplement setting forth the number of
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International Securities covered thereby and their terms not otherwise
specified in the International Prospectus pursuant to which the
International Securities are being issued, the names of the International
Managers participating in the offering and the number of International
Securities which each severally has agreed to purchase, the names of the
International Managers acting as co-managers in connection with the
offering, the price at which the International Securities are to be
purchased by the International Managers from the Company or the Operating
Partnership, as the case may be, the initial public offering price, if any,
the selling concession and reallowance, if any, and such other information
as the Lead Managers and the Company or the Operating Partnership, as the
case may be, deem appropriate in connection with the offering of the
International Securities; and the Company or the Operating Partnership, as
the case may be, will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the International Managers named therein as
many copies of the International Prospectus (including such Prospectus
Supplement) as the Lead Managers shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule 430A of
the 1933 Act Regulations, then immediately following the execution of the
International Terms Agreement, the Company and the Operating Partnership
will prepare, and file or transmit for filing with the Commission in
accordance with such Rule 430A and Rule 424(b) of the 1933 Act Regulations,
a copy of an amended International Prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement (including
amended International Prospectuses), containing all information so omitted.
If required, the Company and the Operating Partnership will prepare and file
or transmit for filing a Rule 462(b) Registration Statement not later than
the date of execution of the International Terms Agreement. If a Rule
462(b) Registration Statement is filed, the Company and the Operating
Partnership shall make payment of, or arrange for payment of, the additional
registration fee owing to the Commission required by Rule 111 of the 1933
Act Regulations.
(c) The Company and the Operating Partnership will notify the Lead
Managers immediately, and confirm such notice in writing, of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
transmittal to the Commission for filing of any Prospectus Supplement or
other supplement or amendment to the International Prospectus to be filed
pursuant to the 1933 Act, (iii) the receipt of any comments from the
Commission, (iv) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the International
Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose; and the Company and the Operating Partnership will make every
reasonable effort to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(d) At any time when the International Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales of the
International Securities, the Company and the Operating Partnership will
give the Lead Managers notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement to
the International Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, will furnish the Lead Managers with copies of any such amendment
or supplement a reasonable amount of time prior to such proposed filing and,
unless required by law, will not file or use any such amendment or
supplement or other documents in a form to which the Lead Managers or
counsel for the International Managers shall reasonably object.
(e) The Company and the Operating Partnership will deliver to the
Lead Managers as soon as possible as many signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference therein) as the Lead Managers may reasonably
request and will also deliver to the Lead Managers as many conformed copies
of the Registration Statement as originally filed and of each
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amendment thereto (including documents incorporated by reference into the
International Prospectus) as the Lead Managers may reasonably request.
(f) The Company and the Operating Partnership will furnish to each
International Manager, from time to time during the period when the
International Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the International Prospectus (as
amended or supplemented) as such International Manager may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
(g) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the International Managers, to amend
or supplement the International Prospectus in order to make the
International Prospectus not misleading in the light of the circumstances
existing at the time it is delivered to a purchaser, the Company and the
Operating Partnership will forthwith amend or supplement the International
Prospectus (in form and substance reasonably satisfactory to counsel for the
International Managers) so that, as so amended or supplemented, the
International Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time
it is delivered to a purchaser, not misleading, and the Company and the
Operating Partnership will furnish to the International Managers a
reasonable number of copies of such amendment or supplement.
(h) The Company and the Operating Partnership will endeavor, in
cooperation with the International Managers, to qualify the International
Securities for offering and sale under the applicable securities laws and
real estate syndication laws of such states and other jurisdictions as the
Lead Managers may designate. In each jurisdiction in which the
International Securities have been so qualified, the Company and the
Operating Partnership will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for so long as may be required for the distribution of the
International Securities.
(i) With respect to each sale of International Securities, the
Company and the Operating Partnership will make generally available to its
security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in
said Rule 158) of the Registration Statement.
(j) Each of the Company and the Operating Partnership will use the
net proceeds received by it from the sale of the International Securities in
the manner specified in the International Prospectus under "Use of Proceeds."
(k) The Company and the Operating Partnership, if applicable, during
the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all documents required to be
filed with the Commission pursuant to Sections 13, 14 or 15 of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of companies
that have securities listed on such exchange and, unless otherwise agreed
upon with respect to Preferred Stock, Depository Shares and Debt Securities,
will use its best efforts to maintain the listing of any International
Securities listed on the New York Stock Exchange.
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(m) In respect to each offering of Debt Securities, the Operating
Partnership will qualify an Indenture under the 1939 Act and will endeavor
to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company and the Operating Partnership will take all
reasonable action necessary to enable Standard & Poor's Corporation ("S&P"),
Moody's Investors Service, Inc. ("Moody's") or any other nationally
recognized statistical rating organization to provide their respective
credit ratings of any International Securities, if applicable.
(o) During a period of 90 days from the date of any Prospectus
Supplement relating to International Securities, the Company and the
Operating Partnership will not, without the prior written consent of the
Lead Managers, directly or indirectly, sell, offer to sell, grant any option
for the sale of, enter into any agreement to sell, or otherwise dispose of,
(i) any securities of the same class or series or ranking on a parity with
any International Securities (other than the International Securities
covered by such Prospectus Supplement or the U.S. Underwritten Securities
covered by a related Prospectus Supplement) or any security convertible into
or exchangeable for shares of such International Securities and (ii) if such
Prospectus Supplement relates to Preferred Stock that is convertible into or
exchangeable for Common Stock, any Common Stock or Units or any security
convertible into or exchangeable for shares of Common Stock. This transfer
restriction does not apply to (i) the possible issuance of shares of Common
Stock upon the exchange of Units by holders of Units other than DMI
Partnership (except as to Units exchanged by DMI Partnership pursuant to a
Unit bonus plan for employees of the Company and its subsidiaries) and the
directors and executive officers of the Company; (ii) grants of options, and
the issuance of shares in respect of such options, pursuant to a stock
option plan; (iii) the issuance of shares pursuant to a dividend
reinvestment plan; and (iv) the issuance of shares of Common Stock, or any
security convertible into or exchangeable or exercisable for Common Stock,
in connection with the acquisition of real property or an interest or
interests in real property, if the recipient of such shares or other
securities agrees in writing to not, without the prior written consent of
Merrill Lynch and the Company and the Operating Partnership, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of any of such securities until the expiration of a 90-day
period from the date of any Prospectus Supplement.
(p) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive
rights and other similar rights, a sufficient number of shares of Common
Stock for the purpose of enabling the Company to satisfy any obligations to
issue such Common Stock upon conversion of the Preferred Stock.
(q) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the Common Stock on the New York
Stock Exchange.
(r) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(s) During the period from the Closing Time until five years after
the Closing Time, the Company and the Operating Partnership will deliver to
the Lead Managers, (i) promptly upon their becoming available, copies of all
current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the Commission or
any governmental authority succeeding to any of the Commission's functions,
and (ii) such other information concerning the Company and the Operating
Partnership as the Lead Managers may reasonably request.
SECTION 4. PAYMENT OF EXPENSES. The Company and the Operating
Partnership will pay all expenses incident to the performance of its
obligations under this Agreement and the applicable International Terms
Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto; (ii) the cost of
printing, or reproducing, and distributing to the International Managers
copies
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of this Agreement and the applicable International Terms Agreement; (iii) the
preparation, issuance and delivery of the International Securities to the
International Managers, including capital duties, stamp duties and stock
transfer taxes, if any, payable upon issuance of any of the International
Securities, the sale of the International Securities to the International
Managers, their transfer between the International Managers pursuant to an
agreement between such International Managers and the fees and expenses of
the transfer agent for the International Securities; (iv) the fees and
disbursements of the Company's and the Operating Partnership's counsel and
accountants; (v) the qualification of the International Securities and the
Common Stock issuable upon conversion of Preferred Stock, if any, under
securities laws and real estate syndication laws in accordance with the
provisions of Section 3(h) hereof, including filing fees and the fees and
disbursements of counsel for the International Managers in connection
therewith and in connection with the preparation of the Blue Sky Survey;
(vi) the printing and delivery to the International Managers of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus, and of the International Prospectus and any
amendments or supplements thereto; (vii) the cost of printing, or
reproducing, and delivering to the International Managers copies of the Blue
Sky Survey; (viii) the fee of the National Association of Securities Dealers,
Inc., if any; (ix) the fees and expenses incurred in connection with the
listing of the International Securities and the Common Stock issuable upon
conversion of Preferred Stock, if any, on the New York Stock Exchange, any
other national securities exchange or quotation system; (x) any fees charged
by nationally recognized statistical rating organizations for the rating of
the Debt Securities, if any; (xi) the printing and delivery to the
International Managers of copies of the Indenture; (xii) the fees and
expenses of the Trustee, including the reasonable fees and disbursements of
counsel for the Trustee in connection with the Indenture and the
International Securities, (xiii) the preparation, issuance and delivery to
the Depository Trust Company for credit to the accounts of the respective
International Managers of any global note registered in the name of Cede &
Co., as nominee for the Depository Trust Company; and (xiv) any transfer
taxes imposed on the sale of the International Securities to the several
International Managers.
If this Agreement is cancelled or terminated by the Lead Managers in
accordance with the provisions of Section 5, Section 9(a)(i), Section 9(a)(iv)
or Section 9(a)(v) hereof, the Company and the Operating Partnership shall
reimburse the International Managers for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the International
Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the International Managers hereunder are subject to the accuracy,
as of the date hereof and at Closing Time, of the representations and warranties
of the Company and the Operating Partnership herein contained, to the
performance by the Company and the Operating Partnership of their respective
obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission; (ii) if the
Company or the Operating Partnership, as the case may be, has elected to
rely upon Rule 430A of the 1933 Act Regulations, the public offering price
of and the interest rate on the International Securities, as the case may
be, and any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to the
applicable Closing Time, the Company or the Operating Partnership, as the
case may be, shall have provided evidence satisfactory to the Lead Managers
of such timely filing, or a post-effective amendment providing such
information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A of the 1933 Act Regulations;
(iii) if Preferred Stock is being offered, the rating assigned by any
nationally recognized statistical rating organization as of the date of the
applicable International Terms Agreement shall not have been lowered since
such date nor shall any such rating organization have publicly announced
that it has placed the Preferred Stock on what is commonly termed a "watch
list" for possible downgrading; (iv) the rating assigned by any nationally
recognized statistical rating organization to any long-term debt securities
of the Operating Partnership as of the date of the applicable International
Terms Agreement shall not have been lowered since such date nor shall any
such rating organization have publicly announced that it has placed any
long-term debt securities of the Operating
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Partnership on what is commonly termed a "watch list" for possible
downgrading; and (v) there shall not have come to the attention of the Lead
Managers any facts that would cause the Lead Managers to believe that the
International Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to purchasers of the
International Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not
misleading. If a Rule 462(b) Registration Statement is required, such Rule
462(b) Registration Statement shall have been transmitted to the Commission
for filing and have become effective within the prescribed time period, and,
prior to Closing Time, the Company and the Operating Partnership shall have
provided to the International Managers evidence of such filing and
effectiveness in accordance with Rule 462(b) of the 1933 Act Regulations.
(b) At Closing Time the Lead Managers shall have received:
(1) The favorable opinion, dated as of Closing Time, of Bose
McKinney & Evans, counsel for each of the Company and the Operating
Partnership and their respective subsidiaries in form and substance
reasonably satisfactory to counsel for the International Managers, to
the effect that:
(i) The Company is a corporation duly organized and
existing under and by virtue of the laws of the State of Indiana,
has filed its most recent annual report required by law with the
Secretary of State of Indiana or is not yet required to file such
annual report, and has not filed Articles of Dissolution. The
Company has corporate power and authority to conduct the business
in which it is engaged or proposes to engage and to own, lease
and operate its properties as described in the International
Prospectus and to enter into and perform its obligations under
this Agreement and the other agreements to which it is a party.
The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial or otherwise, or the
earnings, assets, business affairs or business prospects of the
Company or any Property.
(ii) The Operating Partnership is a limited
partnership duly organized and existing under and by virtue of the
laws of the State of Indiana. The Operating Partnership has
partnership power and authority to conduct the business in which it
is engaged and proposes to engage and to own, lease and operate its
properties as described in the International Prospectus and to
enter into and perform its obligations under this Agreement and
the other agreements to which it is a party. The Operating
Partnership is duly qualified or registered as a foreign
partnership and is in good standing in each jurisdiction in which
such qualification or registration is required, whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or register
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Operating Partnership or any
Property or Related Business.
(iii) Each of the Company's and the Operating
Partnership's subsidiaries (other than the Property Partnerships)
has been duly formed, and is validly existing and in good
standing as a corporation or partnership under the laws of its
jurisdiction of organization, with partnership or corporate power
and authority to conduct the business in which it is engaged or
proposes to engage and to own, lease and operate its properties
as described in the International Prospectus.
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(iv) Each of the Company's and the Operating
Partnership's subsidiaries and the Property Partnerships is duly
qualified or registered as a foreign partnership or corporation
in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, assets, business affairs or business prospects
of the Duke Group considered as a single enterprise.
(v) If the applicable International Securities are
issued by the Company, and if the International Prospectus
contains the caption "Capitalization," the capital stock of the
Company is as set forth in the column entitled "Historical" under
such caption. All the issued and outstanding shares of capital
stock have been duly authorized and are validly issued, fully
paid and non-assessable. To the best of such counsel's
knowledge, after due inquiry, no shares of capital stock of the
Company are reserved for any purpose except in connection with
stock option and dividend reinvestment plans and the possible
issuance of shares of Common Stock upon the exchange of Units.
To the best of such counsel's knowledge after due inquiry, except
for Units, there are no outstanding securities convertible into
or exchangeable for any capital stock of the Company, and except
for options under a stock option plan, there are no outstanding
options, rights (preemptive or otherwise) or warrants to purchase
or to subscribe for shares of such stock or any other securities
of the Company.
(vi) All the issued and outstanding Units have been
duly authorized and are validly issued, fully paid and
non-assessable, except as provided under Indiana Code
Section 23-16-7-8.
(vii) All of the issued and outstanding shares of
capital stock and partnership interests, as the case may be, of
each subsidiary identified in an exhibit to such counsel's
opinion have been validly issued and fully paid and all such
shares and partnership interests, as the case may be, that are
owned by the Company, the Operating Partnership or a subsidiary,
are in each case owned free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(viii) Each of the Property Partnerships has been duly
formed as a partnership or a limited liability company, as the
case may be, and is validly existing and in good standing as a
partnership or a limited liability company under of the laws of
its jurisdiction of organization; each Property Partnership has
all requisite power and authority to own, lease and operate the
Properties, to conduct the business in which it is engaged and to
enter into and perform its respective obligations under the
agreements to which it is a party. Each of the partnership or
operating agreements, as the case may be, of the Property
Partnerships is in full force and effect.
(ix) The applicable International Securities, if such
International Securities are Common Stock, Preferred Stock or
Depositary Shares, have been duly authorized by the Company for
issuance and sale to the International Managers pursuant to this
Agreement, and, when issued and delivered by the Company,
pursuant to this Agreement and the applicable International Terms
Agreement against payment of the consideration set forth in the
International Terms Agreement or any Delayed Delivery Contract,
will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of such International
Securities in accordance herewith, each of the International
Managers will receive good, valid and marketable title to such
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International Securities, which to such counsel's knowledge,
after due inquiry, are free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities.
The terms of the applicable International Securities conform to
all statements and descriptions related thereto contained in the
International Prospectus. The form of stock or depositary
certificate to be used to evidence the applicable International
Securities is in due and proper form and complies with all
applicable legal requirements. The issuance of the applicable
International Securities is not subject to any preemptive or
other similar rights.
(x) The applicable International Securities, if
such International Securities are Debt Securities, are in the form
contemplated in the Indenture, have been duly authorized by the
Operating Partnership for issuance and sale to the International
Managers pursuant to this Agreement and, when executed,
authenticated, issued and delivered in the manner provided for in
this Agreement, the applicable International Terms Agreement and
the applicable Indenture, against payment of the consideration
therefor specified in the applicable International Terms
Agreement or any Delayed Delivery Contract, such Debt Securities
will constitute valid and legally binding obligations of the
Operating Partnership entitled to the benefits of the Indenture
and such Debt Securities will be enforceable against the
Operating Partnership in accordance with their terms, except as
such enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). Upon payment of the purchase price and delivery of such
International Securities in accordance herewith, each of the
International Managers will receive good, valid and marketable
title to such International Securities, which to such counsel's
knowledge, after due inquiry, are free and clear of all security
interests, mortgages, pledges, liens, encumbrances, claims and
equities. The terms of the applicable International Securities
conform to all statements and descriptions related thereto in the
International Prospectus. Such International Securities rank and
will rank on a parity with all unsecured indebtedness (other than
subordinated indebtedness of the Operating Partnership that is
outstanding on the International Representation Date or that may
be incurred thereafter) and senior to all subordinated
indebtedness of the Operating Partnership that is outstanding on
the International Representation Date or that may be incurred
thereafter, except that such International Securities will be
effectively subordinated to the prior claims of each secured
mortgage lender to any specific Property which secures such
lender's mortgage.
(xi) If applicable, the Common Stock issuable upon
conversion of any of the Preferred Stock (including Preferred
Stock represented by Depositary Shares) will have been duly and
validly authorized and reserved for issuance upon such conversion
or exercise by all necessary action and such stock, when issued
upon such conversion or exercise, will be duly and validly
issued, fully paid and non-assessable, and the issuance of such
stock upon such conversion or exercise will not be subject to
preemptive or other similar rights; the Common Stock so issuable
conforms in all material respects to all statements relating
thereto contained in the International Prospectus.
(xii) To the best knowledge of such counsel, none of
the entities comprising the Duke Group is in violation of its
charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, and none of the
entities comprising the Duke Group is in default in the
performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity
is a party
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or by which such entity may be bound, or to which any
of the property or assets of such entity is subject, except for
defaults which are not material to the Duke Group as a whole.
(xiii) Each of this Agreement, the applicable
International Terms Agreement and the Delayed Delivery Contracts,
if any, were duly and validly authorized, executed and delivered
by the Company and the Operating Partnership, as applicable, and
the Company and the Operating Partnership have the power and
authority to perform their obligations hereunder and thereunder.
(xiv) The Indenture has been duly qualified under the
1939 Act and has been duly and validly authorized, executed and
delivered by the Operating Partnership, and, assuming due
authorization, execution and delivery by the Trustee, constitutes
a valid and binding obligation of the Operating Partnership,
enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law). The Indenture conforms in all material respects to the
descriptions thereof contained in the International Prospectus.
(xv) Each of the partnership agreements to which any
of the Company, the Operating Partnership or their respective
subsidiaries identified in an exhibit to such counsel's opinion
is a party has been duly authorized, executed and delivered by
such party and constitutes a valid and binding obligation
thereof, enforceable in accordance with its terms, except as such
enforceability may be (1) limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws
affecting the rights and remedies of creditors generally and (2)
subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law).
(xvi) The execution and delivery of this Agreement,
the applicable International Terms Agreement, any Indenture and the
International Securities, the performance of the obligations set
forth herein or therein, and the consummation of the transactions
contemplated hereby and thereby or in the International
Prospectus by the Company and the Operating Partnership, will not
conflict with or constitute a breach or violation by the Company
or the Operating Partnership of, or default under, or result in
the creation of imposition of any lien, charge or encumbrance
upon any Property or assets of the Duke Group pursuant to any
contract, indenture, mortgage, loan agreement, note, lease, joint
venture or partnership agreement or other instrument or agreement
known to such counsel, after due inquiry, to which the Company,
the Operating Partnership or any subsidiary is a party or by
which they, either of them, any of their respective properties or
other assets or any Property may be bound or subject which is
material to the Duke Group as a whole; nor will such action
conflict with or constitute a breach or violation by the Company
or the Operating Partnership of, or default under, (A) the
charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, of the Company, the
Operating Partnership or any subsidiary or (B) to the extent it
is material, any applicable law, rule, order, administrative
regulation or administrative or court decree.
(xvii) Assuming the Company was organized in
conformity with and has satisfied the requirements for qualification
and taxation as a "real estate investment trust" under the Code for
each of its taxable years from and including the first taxable
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year for which the Company made the election to be taxed as a
"real estate investment trust", the proposed methods of operation
of the Company, the Operating Partnership and the Services
Partnership as described in the Registration Statement and the
Prospectus Supplement and as represented by the Company, the
Operating Partnership and the Services Partnership will permit
the Company to continue to qualify to be taxed as a "real estate
investment trust" for its current and subsequent taxable years.
(xviii) None of the entities comprising the Duke Group
is required to be registered under the 1940 Act or is or will become
a "holding company" or a "subsidiary company" of a "registered
holding company" as defined in the Public Utility Holding Company
Act of 1935, as amended.
(xix) To such counsel's knowledge, after due inquiry,
(i) each entity belonging to the Duke Group possesses such
material certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by it, or
proposed to be conducted by it, and (ii) none of the entities
comprising the Duke Group has received any notice of proceedings
relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition,
financial or otherwise, or the earnings, assets, business affairs
or business prospects of the Duke Group considered as a single
enterprise.
(xx) No authorization, approval, consent or order of
any court or governmental authority or agency or, to the
knowledge of such counsel, any other entity is required in
connection with the offering, issuance or sale of the applicable
International Securities to the International Managers hereunder,
except such as may be required under the 1933 Act or the 1933 Act
Regulations or the 1939 Act or the 1939 Act Regulations or state
or foreign securities laws, as to which such counsel need express
no opinion, or real estate syndication laws or such as have been
received prior to the date of this Agreement.
(xxi) Each preliminary prospectus, preliminary
prospectus supplement and Prospectus Supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933
Act, complied when so filed in all material respects with the
1933 Act and the 1933 Act Regulations thereunder.
(xxii) The documents incorporated or deemed to be
incorporated by reference in the International Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time
they were filed with the Commission, complied and will comply as
to form in all material respects with the requirements of the
1934 Act and the 1934 Act Regulations.
(xxiii) The Registration Statement is effective under
the 1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission.
(xxiv) At the time the Registration Statement became
effective and at each of the International Representation Dates,
the Registration Statement and the International Prospectus,
excluding the documents incorporated by reference therein, and
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each amendment or supplement to the Registration Statement and
International Prospectus, excluding the documents incorporated by
reference therein (other than the financial statements and
supporting schedules and other financial data included therein,
as to which no opinion need be rendered), complied as to form in
all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xxv) There are no legal or governmental proceedings
pending or, to the best of their knowledge and information,
threatened which are required to be disclosed in the Registration
Statement or the International Prospectus, other than those
disclosed therein, and all pending legal or governmental
proceedings to which any of the entities comprising the Duke
Group is a party or to which any of their properties is subject
which are not described in the Registration Statement or the
International Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material.
(xxvi) The information in the International Prospectus
under "The Company and the Operating Partnership," "Description
of Debt Securities," "Description of Preferred Stock,"
"Description of Depositary Shares," "Description of Common
Stock," and the information in the applicable Prospectus
Supplement under similar sections and, if applicable, "The
Company" or "The Operating Partnership," as the case may be, to
the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by them and is correct and presents fairly the
information required to be disclosed therein.
(xxvii) There are no statutes, contracts, indentures,
mortgages, loan agreements, notes, leases or other instruments
known to such counsel which are required to be described or
referred to in the Registration Statement or to be filed as
exhibits thereto by the 1933 Act Regulations other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct, and,
to the best knowledge of such counsel, no material default exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed.
(xxviii) To the best knowledge of such counsel,
except as disclosed in the International Prospectus and except for
persons who received Units in connection with transactions with the
Operating Partnership, there are no persons with registration or
other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the
Company or the Operating Partnership under the 1933 Act.
(xxix) The Company and the Operating Partnership each
satisfy all conditions and requirements for filing the
Registration Statement on Form S-3 under the 1933 Act and 1933
Act Regulations.
(2) The favorable opinion, dated as of the Closing Time, of
Rogers & Wells, counsel for the International Managers, (A) with
respect to the matters set forth in Section 5(b)(1)(i) (with respect
to the Company only and with respect to the first sentence only),
Section 5(b)(1)(ix), (with respect to the first and last sentences
only) or 5(b)(1)(x) (with respect to the first sentence only), as
applicable, Section 5(b)(1)(xiii) (with respect to the first clause
only), Section 5(b)(1)(xiv) and Section 5(b)(1)(xxiv) and (B)
containing a statement similar to the statement referred to in the
first paragraph of Section 5(b)(3).
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(3) In giving their opinions required by subsections (b)(1) and
(b)(2), respectively, of this Section, Bose McKinney & Evans and
Rogers & Wells shall additionally state that such counsel has
participated in conferences with officers and other representatives of
the Company or the Operating Partnership, as the case may be, and the
independent public accountants for the Company or the Operating
Partnership, as the case may be, at which the contents of the
Registration Statement and the International Prospectus and related
matters were discussed and in the preparation of the Registration
Statement and the International Prospectus and, on the basis of the
foregoing, nothing has come to their attention that would lead them to
believe that either the Registration Statement or any amendment
thereto (excluding the financial statements and financial schedules
included or incorporated by reference therein or the Statement of
Eligibility, as to which such counsel need express no belief), at the
time it became effective or at the time an Annual Report on Form 10-K
was filed by the Company and the Operating Partnership with the
Commission (whichever is later), or at the International
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
International Prospectus or any amendment or supplement thereto
(excluding the financial statements or financial schedules included or
incorporated by reference therein or the Statement of Eligibility, as
to which such counsel need express no belief), at the International
Representation Date or at the Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
In giving their opinions, Bose McKinney & Evans and Rogers &
Wells may rely upon, or assume the accuracy of, (A) as to all matters
of fact, certificates and written statements of officers and employees
of and accountants for each of the entities comprising the Duke Group
and (B) as to the qualification and good standing of each of the
entities comprising the Duke Group to do business in any jurisdiction,
certificates of appropriate government officials or opinions of
counsel in such jurisdictions, and (C) in respect to the opinion by
Rogers & Wells only, as to certain matters of Indiana law, the opinion
of Bose McKinney & Evans given pursuant to Section 5(b)(1) above.
(c) At Closing Time, (i) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company or the Operating
Partnership, threatened against any entity belonging to the Duke Group which
would be required to be set forth in the International Prospectus other than
as set forth therein; (ii) there shall not have been, since the date of the
applicable International Terms Agreement or since the respective dates as of
which information is given in the Registration Statement and the
International Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, assets, business affairs or
business prospects of any entity belonging to the Duke Group, whether or not
arising in the ordinary course of business; (iii) no proceedings shall be
pending or threatened against such entity or any Property before or by any
federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding might result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of any entity belonging to
the Duke Group or any Property, as the case may be, other than as set forth
in the International Prospectus; (iv) no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission or by the state securities authority of any
jurisdiction; and (v) the Lead Managers shall have received a certificate of
the President or a Vice President of the Company and the Operating
Partnership and of the chief financial or chief accounting officer of each
such entity, dated as of the Closing Time, evidencing compliance with the
provisions of this subsection (c) and stating that the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time.
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(d) At the time of the execution of the applicable International
Terms Agreement, the Lead Managers shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance satisfactory to
the Lead Managers, to the effect that: (i) they are independent public
accountants with respect to the Company and the Operating Partnership as
required by the 1933 Act and the 1933 Act Regulations; (ii) it is their
opinion that the financial statements and supporting schedules included in
the Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations; (iii) based upon
limited procedures set forth in detail in such letter, including a reading
of the latest available interim financial statements of the Company and the
Operating Partnership, a reading of the minute books of the Company and the
Operating Partnership, inquiries of officials of the Company and the
Operating Partnership responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such letter,
nothing has come to their attention which causes them to believe that (A)
the unaudited financial statements of the Company and the Operating
Partnership included in the Registration Statement, or incorporated by
reference therein, do not comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations, or material
modifications are required for them to be presented in conformity with
generally accepted accounting principles, (B) the operating data and balance
sheet data set forth in the International Prospectus under the caption
"Selected Consolidated Financial Data" were not determined on a basis
substantially consistent with that used in determining the corresponding
amounts in the audited financial statements included or incorporated by
reference in the Registration Statement, (C) the pro forma financial
information included or incorporated by reference in the Registration
Statement was not determined on a basis substantially consistent with that
of the audited financial statements included or incorporated by reference in
the Registration Statement or (D) at a specified date not more than five
days prior to the date of the applicable International Terms Agreement,
there has been any change in the capital stock or the number of partnership
interests of the Company, the Operating Partnership or their subsidiaries,
as the case may be, or any increase in the debt of the Company, the
Operating Partnership or their subsidiaries or any decrease in the net
assets of the Company, the Operating Partnership or their subsidiaries, as
compared with the amounts shown in the most recent consolidated balance
sheet of the Company, the Operating Partnership and their subsidiaries,
included in the Registration Statement or incorporated by reference therein,
or, during the period from the date of the most recent consolidated
statement of operations included in the Registration Statement or
incorporated by reference therein to a specified date not more than five
days prior to the date of the applicable International Terms Agreement,
there were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of the
Company, the Operating Partnership and their subsidiaries, except in all
instances for changes, increases or decreases which the Registration
Statement and the International Prospectus disclose have occurred or may
occur; and (iv) in addition to the audit referred to in their opinions and
the limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included in
the Registration Statement and International Prospectus and which are
specified by the Lead Managers, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting,
financial and other records of the Company, the Operating Partnership and
their subsidiaries identified in such letter.
(e) At Closing Time, the Lead Managers shall have received from KPMG
Peat Marwick LLP a letter, dated the Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the "specified date" referred to shall be a
date not more than five days prior to Closing Time.
(f) At Closing Time, the International Securities, if such
International Securities are Debt Securities, shall be rated investment
grade by one or more nationally recognized statistical rating organizations
and the Operating Partnership shall have delivered to the Lead Managers a
letter, dated the Closing Time, from each such rating organization, or other
evidence satisfactory to the Lead Managers,
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confirming that such International Securities have such ratings; and since
the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to such International Securities or any of the Operating
Partnership's other debt securities by any nationally recognized securities
rating organization, and no such securities rating organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of such International Securities or any of
the Operating Partnership's other debt securities.
(g) At Closing Time and at each Date of Delivery, if any, counsel for
the International Managers shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the applicable International Securities as
contemplated herein, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Operating
Partnership, as the case may be, in connection with the issuance and sale of
the applicable International Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Lead Managers and
counsel for the International Managers.
(h) At Closing Time, the Lead Managers shall have received a letter
agreement from DMI Partnership and from each director and executive officer
of the Company and the Operating Partnership, wherein DMI Partnership and
each such director or executive officer shall agree that during the period
of 90 days from the date of any Prospectus Supplement they will not, without
the prior written consent of Merrill Lynch, the Company and the Operating
Partnership (which consent, in the case of the Company and the Operating
Partnership, will be subject to the approval of the Company's unaffiliated
directors), directly or indirectly, sell, offer to sell, grant any option
for the sale of, enter into any agreement to sell, or otherwise dispose of,
(i) any securities of the same class or series or ranking on a parity with
any International Securities or any security convertible into or
exchangeable for shares of such International Securities, and (ii) if such
Prospectus Supplement relates to Preferred Stock that is convertible into or
exchangeable for Common Stock, any Common Stock or Units or any security
convertible into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to Units exchanged by DMI Partnership pursuant to
a Unit bonus plan for employees of the Company and its subsidiaries. Such
transfer restrictions do not apply to transfers to members of the family of
such director or executive officer (or an entity for their benefit), or to
the granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other securities.
(i) In the event that the International Managers exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
Option International Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in
any certificates furnished by the Company and the Operating Partnership
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Lead Managers shall have received:
(1) A certificate, dated such Date of Delivery, of the President
or a Vice President of the Company and the Operating Partnership and
of the chief financial or chief accounting officer of each such entity
confirming that their respective certificates delivered at Closing
Time pursuant to Section 5(c) hereof remain true and correct as of
such Date of Delivery.
(2) The favorable opinion of Bose McKinney & Evans, counsel for
the Company, the Operating Partnership and their respective
subsidiaries, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
Option International Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b)(1) hereof.
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(3) The favorable opinion of Rogers & Wells, counsel for the
International Managers, dated such Date of Delivery, relating to the
Option International Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b)(2) hereof.
(4) A letter from KPMG Peat Marwick, in form and substance
satisfactory to the Lead Managers and dated such Date of Delivery,
substantially the same in form and substance as the letter furnished
to the Lead Managers pursuant to Section 5(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section
5(i)(4) shall be a date not more than five days prior to such Date of
Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Lead Managers by notice to the Company and the Operating Partnership, at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof.
SECTION 6. INDEMNIFICATION.
(a) Each of the Company and the Operating Partnership agrees, jointly
and severally, to indemnify and hold harmless each International Manager and
each person, if any, who controls any International Manager within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, International Prospectus, preliminary prospectus
supplement or Prospectus Supplement (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company or the Operating
Partnership by any International Manager through Merrill Lynch expressly for
use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any claim
whatsoever for which indemnification is provided under subsection (i) above
if such settlement is effected with the written consent of the indemnifying
party; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever for which indemnification is provided under subsection
(i) above, to the extent that any such expense is not paid under (i) or (ii)
above.
(b) Each International Manager severally agrees to indemnify and hold
harmless the Company and the Operating Partnership and each person, if any, who
controls the Company and the Operating Partnership
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within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense described
in the indemnity contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the International Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by
such International Manager through Merrill Lynch expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of any such action. If it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and reasonably approved by the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Operating Partnership, on the one hand, and the International Managers, on the
other hand, from the offering of the International Securities pursuant to the
applicable International Terms Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Operating Partnership,
on the one hand, and of the International Managers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Operating
Partnership, on the one hand, and the International Managers, on the other hand,
in connection with the offering of the International Securities pursuant to the
applicable International Terms Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
International Securities (before deducting expenses) received by the Company and
the total underwriting discount received by the International Managers, in each
case as set forth on the cover of the International Prospectus, or, if Rule 434
is used, the corresponding location on the Term Sheet, bear to the aggregate
initial public offering price of such International Securities as set forth on
such cover.
The relative fault of the Company and the Operating Partnership, on
the one hand, and the International Managers, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Operating Partnership or by the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
29
<PAGE>
The Company, the Operating Partnership and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 7 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or the Operating Partnership within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or the Operating Partnership, as the case may be.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in the applicable
International Terms Agreement and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or
the applicable International Terms Agreement, or contained in certificates of
the officers of the Company or the Operating Partnership submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
termination of the applicable International Terms Agreement, or any
investigation made by or on behalf of any International Manager or controlling
person, or by or on behalf of the Company or the Operating Partnership and shall
survive delivery of the International Securities to the International Managers.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Lead Managers may terminate the applicable International
Terms Agreement, by notice to the Company, at any time at or prior to Closing
Time (i) if there has been, since the date of such International Terms Agreement
or since the respective dates as of which information is given in the
International Prospectus, any material adverse change, affecting the Duke Group
as a whole, in the condition, financial or otherwise, or in the earnings,
assets, business affairs or business prospects of any entity belonging to the
Duke Group or of any Property, whether or not arising in the ordinary course of
business; or (ii) if there has occurred any material adverse change in the
financial markets in the United States or internationally or any outbreak of
hostilities or escalation of existing hostilities or other calamity or crisis
the effect of which on the financial markets of the United States or
internationally is such as to make it, in the judgment of the Lead Managers,
impracticable to market the International Securities or to enforce contracts for
the sale of the International Securities; or (iii) if trading in the Common
Stock has been suspended by the Commission or if trading generally on either the
New York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said Exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by
30
<PAGE>
either Federal, New York or Indiana authorities; (iv) if Preferred Stock is
being offered and the rating assigned by any nationally recognized
statistical rating organization to any preferred shares of the Company as of
the date of the applicable International Terms Agreement shall have been
lowered since such date or if any such rating organization shall have
publicly announced that it has placed any preferred shares or debt securities
of the Company on what is commonly termed a "watch list" for possible
downgrading; or (v) if the rating assigned by any nationally recognized
statistical rating organization to any long-term debt securities of the
Operating Partnership as of the date of the applicable International Terms
Agreement shall have been lowered since such date or if any such rating
organization shall have publicly announced that it has placed any long-term
debt securities of the Operating Partnership on what is commonly termed a
"watch list" for possible downgrading. As used in this Section 9(a), the
term "International Prospectus" means the International Prospectus in the
form first used to confirm sales of the International Securities.
(b) In the event of any such termination, in respect to such
terminated International Terms Agreement, (x) the covenants set forth in Section
3 with respect to any offering of International Securities shall remain in
effect so long as any International Manager owns any such International
Securities purchased from the Company or the Operating Partnership, as the case
may be, pursuant to the applicable International Terms Agreement and (y) the
covenant set forth in Section 3(i) hereof, the provisions of Section 4 hereof,
the indemnity and contribution agreements set forth in Sections 6 and 7 hereof,
and the provisions of Sections 8 and 13 hereof shall remain in effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If one
or more of the International Managers shall fail at Closing Time to purchase the
International Securities which it or they are obligated to purchase under the
applicable International Terms Agreement (the "Defaulted Securities"), the Lead
Managers shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting International Managers, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Lead Managers shall not have completed such arrangements
within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
International Securities to be purchased pursuant to such International
Terms Agreement, each of the non-defaulting International Managers named in
such International Terms Agreement shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
International Securities to be purchased pursuant to such International
Terms Agreement, the applicable International Terms Agreement shall
terminate without liability on the part of any non-defaulting International
Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default under this
Agreement and the applicable International Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable International Terms Agreement, each of the Lead
Managers or the Company shall have the right to postpone Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement or the International Prospectus or in any other documents
or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Merrill Lynch &
Co., Merrill Lynch, Pierce Fenner & Smith Incorporated, Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, N.Y. 10281-1201,
attention of Martin J. Cicco; notices to the Company and the Operating
Partnership shall be directed to any of them at 8888 Keystone Crossing, Suite
1200, Indianapolis, Indiana, 46240, attention of Darell E. Zink, Jr.
31
<PAGE>
SECTION 12. PARTIES. This Agreement and the applicable International
Terms Agreement shall each inure to the benefit of and be binding upon the
parties hereto and their respective successors. Nothing expressed or mentioned
in this Agreement or the applicable International Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than those
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or the applicable International Terms Agreement or any provision herein or
therein contained. This Agreement and the applicable International Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of International Securities
from any International Manager shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and the International
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
32
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the International Managers, the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ Darell E. Zink, Jr.
---------------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
General Partner
By: /s/ Darell E. Zink, Jr.
-----------------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
By: /s/ Martin J. Cicco
---------------------------------
Name: Martin J. Cicco
Title: Managing Director
33
<PAGE>
EXHIBIT A
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[NUMBER AND TITLE OF SECURITIES]
INTERNATIONAL TERMS AGREEMENT
Dated: [________], 199[__]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Lead Managers") understand that [Duke Realty Investments, Inc.,
an Indiana corporation (the "Company"), proposes to issue and sell [__________]
of its [shares of common stock (the "Common Stock")] [shares of preferred stock
(the "Preferred Stock")] [shares of Preferred Stock represented by depositary
shares (the "Depositary Shares")] [Duke Realty Limited Partnership, an Indiana
limited partnership (the "Operating Partnership"), proposes to issue and sell
$[________] aggregate principal amount of its unsecured debt securities (the
"Debt Securities")] (such [Common Stock], [Preferred Stock] [Depositary Shares]
and [Debt Securities] being collectively hereinafter referred to as the
"International Securities"). Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below (the
"International Managers") offer to purchase, severally and not jointly, the
respective numbers of Initial International Securities (as defined in the
Underwriting Agreement referred to below) set forth below opposite their
respective names, and a proportionate share of Option International Securities
(as defined in the Underwriting Agreement referred to below) to the extent any
are purchased, at the purchase price set forth below.
A-1
<PAGE>
[Number of Shares]
[Principal Amount]
Of Initial
International Manager International Securities
----------
Total $
==========
The International Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK] [DEPOSITARY SHARES]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public offering price per share: $ [, plus accumulated dividends, if any,
from , 199 .]
Purchase price per share: $
[, plus accumulated dividends, if any, from [caad 214] , 199 .]
[Conversion provisions:]
[Voting and other rights:]
Number of Option International Securities, if any, that may be purchased by the
International Managers:
Additional co-managers, if any:
Other terms:
Closing time, date and location:
The International Securities shall have the following terms:
[DEBT SECURITIES]
Title of Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc. ______;
Standard & Poor's Corporation ______; [other rating agencies];
Interest rate or formula:
Interest payment dates:
Interest reset dates:
Interest determination date:
Stated maturity date:
Redemption or repayment provisions:
Number of Option International Securities, if any, that may be purchased by
the International Managers:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: ___%]
[Initial public offering price: ___%, plus accrued interest,
if any, or amortized original issue discount, if any, from
19__.]
A-2
<PAGE>
Purchase price: ___%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________, 19__ (payable in [same] [next] day funds).
Other terms:
Closing date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "Duke Realty Investments, Inc. and Duke Realty Limited Partnership --
Common Stock, Preferred Stock, Depositary Shares and Debt Securities -
Underwriting Agreement" are incorporated by reference in their entirety herein
and shall be deemed to be a part of this International Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
A-3
<PAGE>
Please accept this offer no later than [_____] o'clock P.M. (New York City
time) on [_____] by signing a copy of this International Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH INTERNATIONAL
[OTHER LEAD MANAGERS]
By: MERRILL LYNCH INTERNATIONAL
By:___________________________________________________
For themselves and as Lead Managers of the
other named International Managers.
Accepted:
DUKE REALTY INVESTMENTS, INC.
By:__________________________
Name:
Title:
DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
_______________________________
General Partner
By:__________________________
Name:
Title:
A-4
<PAGE>
EXHIBIT B
DUKE REALTY INVESTMENTS, INC.
(AN INDIANA CORPORATION)
DUKE REALTY LIMITED PARTNERSHIP
(AN INDIANA LIMITED PARTNERSHIP)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
Dated: [__________], 199[_]
To: Duke Realty Investments, Inc.
Duke Realty Limited Partnership
c/o Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from [Duke Realty
Investments, Inc. (the "Company")] [Duke Realty Limited Partnership (the
"Operating Partnership")], and the [Company][Operating Partnership] agrees to
sell to the undersigned on [__________], 19[__] (the "Delivery Date"),
$[__________] amount of the [Company][Operating Partnership]'s [insert title of
security] (the "Securities"), offered by the [Company][Operating Partnership]'s
International Prospectus dated [__________], 19[__], as supplemented by its
Prospectus Supplement dated [__________], 19[__], receipt of which is hereby
acknowledged, at a purchase price of $[_____ per share] [_____% of the principal
amount thereof, plus accrued interest from [__________], 19[__], to the Delivery
Date], and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the [Company][Operating
Partnership] or its order by [certified or official bank check in New York
Clearing House] [same day] funds at the office of [__________], on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned in definitive form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the [Company][Operating Partnership] not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the [Company][Operating Partnership], on or
before [__________], 19[__], shall have sold to the International Managers of
the Securities (the "International Managers") such amount of the Securities as
is to be sold to them pursuant to the International Terms Agreement dated
[__________], 19[__] between the [Company][Operating Partnership] and the
International Managers. The obligation of the undersigned to take delivery of
and make payment for Securities shall not be affected by the failure of any
purchaser to take delivery of and make payments for Securities pursuant to other
contracts similar to this contract. The undersigned represents and warrants to
you that its investment in the Securities is not, as of the date hereof,
prohibited under the laws of any jurisdiction to which the undersigned is
subject and which govern such investment.
B-1
<PAGE>
Promptly after completion of the sale to the International Managers,
the [Company][Operating Partnership] will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied by a copy of the
opinions of counsel for the [Company][Operating Partnership] delivered to the
International Managers in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the [Company][Operating Partnership] that all necessary corporate action for the
due execution and delivery of this contract and the payment for and purchase of
the Securities has been taken by it and no further authorization or approval of
any governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the
[Company][Operating Partnership] and mailing or delivery of a copy as provided
below, this contract will constitute a valid and binding agreement of the
undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the [Company][Operating Partnership] will not
accept Delayed Delivery Contracts for an aggregate amount of Securities in
excess of $[__________] and that the acceptance of any Delayed Delivery Contract
is in the [Company][Operating Partnership]'s sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If
this contract is acceptable to the [Company][Operating Partnership], it is
requested that the [Company][Operating Partnership] sign the form of acceptance
on a copy hereof and mail or deliver a signed copy hereof to the undersigned at
its address set forth below. This will become a binding contract between the
[Company][Operating Partnership] and the undersigned when such copy is so mailed
or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_________________________________________________
(Name of Purchaser)
By:______________________________________________
(Title)
_________________________________________________
_________________________________________________
(Address)
Accepted as of the date first above written.
[DUKE REALTY INVESTMENTS, INC.
By:______________________________________
Name:_______________________________
Title:______________________________
[DUKE REALTY LIMITED PARTNERSHIP
By: DUKE REALTY INVESTMENTS, INC.
_________________________________
By:______________________________________
Name:_______________________________
Title:______________________________
B-2
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please Print.)
Telephone No.
NAME (INCLUDING AREA CODE)
B-3
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(an Indiana Corporation)
9,500,000 Common Shares
U.S. TERMS AGREEMENT
September 9, 1997
TO: Duke Realty Investments, Inc.
8888 Keystone Crossing Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that Duke Realty
Investments, Inc., an Indiana corporation (the "Company"), proposes to issue and
sell 9,500,000 shares of common stock (the "Common Stock") of which 7,600,000
shares of Common Stock are being sold pursuant to this Agreement (such Common
Stock being hereinafter referred to as the "Initial U.S. Securities") and
1,900,000 shares of Common Stock are being sold pursuant to the International
Terms Agreement (as defined in the U.S. Underwriting Agreement referred to
below) dated the date hereof. Subject to the terms and conditions set forth or
incorporated by reference herein, the underwriters named below offer to
purchase, severally and not jointly, the respective numbers of Initial U.S.
Securities set forth below opposite their respective names, and a proportionate
share of U.S. Option Securities (as defined in the U.S. Underwriting Agreement
referred to below), to the extent any are purchased, at the purchase price set
forth below.
<PAGE>
Number of Shares
of Initial
Underwriter U.S. Securities
- ----------- ---------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . .1,060,000
BT Alex. Brown Incorporated. . . . . . . . . . . . . . . . . . . . . .1,060,000
A.G. Edwards & Sons, Inc.. . . . . . . . . . . . . . . . . . . . . . .1,060,000
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . . . . .1,060,000
McDonald & Company Securities, Inc.. . . . . . . . . . . . . . . . . .1,060,000
Morgan Stanley & Co. Incorporated. . . . . . . . . . . . . . . . . . .1,060,000
Donaldson, Lufkin & Jenrette Securities Corporation. . . . . . . . . . . 80,000
EVEREN Securities, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . 80,000
PaineWebber Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 80,000
Prudential Securities Incorporated . . . . . . . . . . . . . . . . . . . 80,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . . . . . . . . 80,000
Smith Barney Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80,000
UBS Securities LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . 80,000
City Securities Corporation. . . . . . . . . . . . . . . . . . . . . . . 40,000
Dain Bosworth Incorporated . . . . . . . . . . . . . . . . . . . . . . . 40,000
Friedman, Billings, Ramsey & Co., Inc. . . . . . . . . . . . . . . . . . 40,000
Gruntal & Co., L.L.C.. . . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Edward D. Jones & Co., L.P.. . . . . . . . . . . . . . . . . . . . . . . 40,000
NatCity Investments, Inc.. . . . . . . . . . . . . . . . . . . . . . . . 40,000
David A. Noyes & Company . . . . . . . . . . . . . . . . . . . . . . . . 40,000
The Ohio Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Ormes Capital Markets, Inc.. . . . . . . . . . . . . . . . . . . . . . . 40,000
Rauscher Pierce Refsnes, Inc.. . . . . . . . . . . . . . . . . . . . . . 40,000
Raymond James & Associates, Inc. . . . . . . . . . . . . . . . . . . . . 40,000
Roney & Co., LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Stifel, Nicolaus & Company, Incorporated . . . . . . . . . . . . . . . . 40,000
Sutro & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Traub and Company, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . 40,000
Utendahl Capital Partners, L.P.. . . . . . . . . . . . . . . . . . . . . 40,000
Wheat, First Securities, Inc.. . . . . . . . . . . . . . . . . . . . . . 40,000
---------
TOTAL 7,600,000
=========
2
<PAGE>
The U.S. Underwritten Securities shall have the following terms:
Title of Securities: Common Stock
Number of Shares: 7,600,000
Public offering price per share: $21.4375
Purchase price per share: $20.3375
Number of Option Shares: 1,140,000
Additional co-managers: BT Alex. Brown Incorporated, A.G.
Edwards & Sons, Inc., Legg Mason Wood
Walker, Incorporated, McDonald & Company
Securities, Inc. and Morgan Stanley &
Co. Incorporated
Closing Time, date and location: September 15, 1997, 10:00 a.m., New York
City Time, Rogers & Wells, 200 Park
Avenue, New York, New York 10166
All the provisions contained in the document attached as Annex A
hereto entitled "Duke Realty Investments, Inc. and Duke Realty Limited
Partnership -- Common Stock, Preferred Stock, Depositary Shares and Debt
Securities -- U.S. Underwriting Agreement" are incorporated by reference in
their entirety herein and shall be deemed to be a part of this U.S. Terms
Agreement to the same extent as if such provisions had been set forth in full
herein. Terms defined in such document are used herein as therein defined.
3
<PAGE>
Please accept this offer no later than 6:30 o'clock P.M. (New York
City time) on September 9, 1997 by signing a copy of this U.S. Terms Agreement
in the space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BT ALEX. BROWN INCORPORATED
A.G. EDWARDS & SONS, INC.
LEGG MASON WOOD WALKER, INCORPORATED
McDONALD & COMPANY SECURITIES, INC.
MORGAN STANLEY & CO. INCORPORATED
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BY: /s/ Martin J. Cicco
---------------------------------------
For themselves and as Representatives
of the named Underwriters
Name: Martin J. Cicco
Title: Managing Director
CONFIRMED AND ACCEPTED:
as of the date first above written
DUKE REALTY INVESTMENTS, INC.
BY: /s/ Darell E. Zink, Jr.
------------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
DUKE REALTY INVESTMENTS, INC.
(an Indiana Corporation)
9,500,000 Common Shares
INTERNATIONAL TERMS AGREEMENT
September 9, 1997
TO: Duke Realty Investments, Inc.
8888 Keystone Crossing Suite 1150
Indianapolis, IN 46240
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Lead Managers") understand that Duke Realty Investments,
Inc., an Indiana corporation (the "Company"), proposes to issue and sell
9,500,000 shares of common stock (the "Common Stock") of which 1,900,000 shares
of Common Stock are being sold pursuant to this Agreement (such Common Stock
being hereinafter referred to as the "Initial International Securities") and
7,600,000 shares of Common Stock are being sold pursuant to the U.S. Terms
Agreement (as defined in the International Underwriting Agreement referred to
below) dated the date hereof. Subject to the terms and conditions set forth or
incorporated by reference herein, the international managers named below offer
to purchase, severally and not jointly, the respective numbers of Initial
International Securities set forth below opposite their respective names, and a
proportionate share of Option International Securities (as defined in the
International Underwriting Agreement referred to below), to the extent any are
purchased, at the purchase price set forth below.
<PAGE>
Number of Shares
of Initial
International Manager International Securities
Merrill Lynch International. . . . . . . . . . . . . . . . . . . . . . .316,670
BT Alex. Brown International
Division of Bankers Trust International PLC . . . . . . . . . . . .316,666
A.G. Edwards & Sons, Inc.. . . . . . . . . . . . . . . . . . . . . . . .316,666
Legg Mason Wood Walker, Incorporated . . . . . . . . . . . . . . . . . .316,666
McDonald & Company Securities, Inc.. . . . . . . . . . . . . . . . . . .316,666
Morgan Stanley & Co. International Limited . . . . . . . . . . . . . . .316,666
---------
TOTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1,900,000
=========
The International Securities shall have the following terms:
Title of Securities: Common Stock
Number of Shares: 1,900,000
Public offering price per share: $21.4375
Purchase price per share: $20.3375
Number of Option Shares: 285,000
Additional co-managers: BT Alex. Brown International Division of
Bankers Trust International PLC, A.G.
Edwards & Sons, Inc., Legg Mason Wood
Walker, Incorporated, McDonald & Company
Securities, Inc. and Morgan Stanley &
Co. International Limited
Closing Time, date and location: September 15, 1997, 10:00 a.m., New York
City Time, Rogers & Wells, 200 Park
Avenue, New York, New York 10166
All the provisions contained in the document attached as Annex A
hereto entitled "Duke Realty Investments, Inc. and Duke Realty Limited
Partnership -- Common Stock, Preferred Stock, Depositary Shares and Debt
Securities -- International Underwriting Agreement" are incorporated by
reference in their entirety herein and shall be deemed to be a part of this
International Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
2
<PAGE>
Please accept this offer no later than 6:30 o'clock P.M. (New York
City time) on September 9, 1997 by signing a copy of this International Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH INTERNATIONAL
BT ALEX. BROWN INTERNATIONAL
DIVISION OF BANKERS TRUST INTERNATIONAL PLC
A.G. EDWARDS & SONS, INC.
LEGG MASON WOOD WALKER, INCORPORATED
McDONALD & COMPANY SECURITIES, INC.
MORGAN STANLEY & CO. INTERNATIONAL
LIMITED
BY: MERRILL LYNCH INTERNATIONAL
BY: /s/ Martin J. Cicco
---------------------------------------
For themselves and as Lead Managers
of the named International Managers
Name: Martin J. Cicco
Title: Managing Director
CONFIRMED AND ACCEPTED:
as of the date first above written
DUKE REALTY INVESTMENTS, INC.
BY: /s/ Darell E. Zink, Jr.
------------------------------------
Name: Darell E. Zink, Jr.
Title: Executive Vice President
and Chief Financial Officer
<PAGE>
BOSE McKINNEY & EVANS
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
September 9, 1997
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Gentlemen:
We have acted as counsel to Duke Realty Investments, Inc., an Indiana
corporation (the "Company"), in connection with the shelf registration by
the Company of shares of the Company's common stock ("Common Stock")
pursuant to a Registration Statement, file no. 333-26845 (the "Registration
Statement"), on Form S-3 under the Securities Act of 1933, as amended. The
Company has filed two prospectus supplements (the "Prospectus Supplements")
relating to the offering of an aggregate of 9,500,000 shares of Common Stock
(plus an aggregate underwriters' over-allotment option for 1,425,000 shares).
In connection therewith, you have requested our opinion regarding certain
United States Federal income tax matters discussed in the Prospectus
Supplements. All capitalized terms used herein have their respective meanings
as set forth in the Prospectus Supplements and accompanying Prospectus unless
otherwise stated.
In rendering the opinions stated below, we have examined and relied,
with your consent, upon the Prospectus Supplements and the accompanying
prospectus and such other documents, records and instruments as we have
deemed necessary in order to enable us to render the opinion referred to in
this letter.
<PAGE>
Duke Realty Investments, Inc.
September 9, 1997
Page 2
In our examination of the foregoing documents, we have assumed, with
your consent, that (i) all documents reviewed by us are original documents, or
true and accurate copies of original documents, and have not been subsequently
amended, (ii) the signatures on each original document are genuine,
(iii) each party who executed the document had proper authority and capacity,
(iv) all representations and statements set forth in such documents are true
and correct, and (v) all obligations imposed by such documents on the parties
thereto have been or will be performed or satisfied in accordance with their
terms.
Based upon and subject to the foregoing, we are of the opinion that the
impact of the Taxpayer Relief Act of 1997 upon the Company and the tax
consequences of the ownership of Common Stock will be consistent with the
discussion contained in the section entitled "Certain Federal Income Tax
Considerations" in the Prospectus Supplements.
The opinions set forth in this letter represent our conclusions as to
the application of federal income tax laws existing as of the date of this
letter to the transactions described herein. We can give no assurance that
legislative enactments, administrative changes or court decisions may not be
forthcoming that would modify or supersede our opinions. Moreover, there can
be no assurance that positions contrary to our opinions will not be taken by
the IRS, or that a court considering the issues would not hold contrary to
such opinions. Further, the opinions set forth above represent our
conclusions based upon the documents, facts and representations referred to
above. Any material amendments to such documents, changes in any significant
facts or inaccuracy of such representations could affect the opinions referred
to herein. Although we have made such inquiries and performed such
investigations as we have deemed necessary to fulfill our professional
responsibilities as counsel, we have not undertaken an independent
investigation of the facts referred to in this letter.
<PAGE>
Duke Realty Investments, Inc.
September 9, 1997
Page 3
We express no opinion as to any federal income tax issue or other matter
except those set forth or confirmed above. We consent to the filing of this
opinion with Form 8-K, to the incorporation by reference of this opinion as
an exhibit to the registration statement of the Company and Duke Realty
Limited Partnership (file no. 333-26845) and any registration statement filed
under Rule 462(b) relating to such registration statement and to the
reference to our firm under the heading "Legal Matters" in the Prospectus
Supplements.
Very truly yours,
/s/ Bose McKinney & Evans
