SECURITIES AND EXCHANGE COMMISSION
Washington,D.C.20549
FORM S-3
REGISTRATION STATEMENT
Under The Securities Act of 1933
DUKE REALTY INVESTMENTS,INC.
(Exact name of registrant as specified in its charter)
Indiana 35-1740409
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
(317) 574-3531
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Dennis D. Oklak
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
(317) 574-3531
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
Alan W. Becker, Esq.
Bose McKinney & Evans
135 North Pennsylvania Street, Suite 2700
Indianapolis, Indiana 46204
(317) 684-5000
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. / X /
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------
Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered Per Share (1) Offering Price Fee
- ------------------- ---------- -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, $.01 1,500,000 $21.375 $32,062,500 $9,458.44
par value
Total 1,500,000 $32,062,500 $9,458.44
- --------------------------------------------------------------------------------
</TABLE>
(1) Estimated using August 25, 1998 data solely for the purpose of calculating
the registration fee pursuant to Rule 457(c).
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may
determine
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 26, 1998
PROSPECTUS
- ----------
1,500,000 Shares
LOGO
DUKE REALTY INVESTMENTS, INC.
Common Stock
-----------------------
Duke Realty Investments, Inc. (the "Company") may issue and
sell from time to time up to 1,500,000 shares of its common
stock, $.01 par value ("Common Stock"), directly or through
agents, dealers or underwriters designated from time to time. The
Common Stock offered pursuant to this Prospectus may be issued in
amounts, at prices and on terms to be determined at the time of
the offering of such Common Stock.
The Company may sell all or a portion of the Common Stock
through agents or to or through underwriters or dealers, and is a
party to a certain Distribution Agreement relating to the sale of
Common Stock. See "Plan of Distribution."
The specific terms of sales of shares of Common Stock
pursuant hereto will be set forth, from time to time, in a
Prospectus Supplement filed under the applicable paragraph of
Rule 424(b) promulgated under the Securities Act of 1933, as
amended (the "Securities Act"). Such Prospectus Supplements will
set forth the number of shares of Common Stock sold, pricing
information with respect to such sales, net proceeds to the
Company and the amount of any compensation payable by the Company
to any sales agent(s) with respect thereto.
The Common Stock is listed on the New York Stock Exchange
under the symbol DRE. In order to maintain its qualification as a
real estate investment trust ("REIT") for federal income tax
purposes, the Company's Amended and Restated Articles of
Incorporation impose limitations on the number of shares of
capital stock that may be owned by any single person or
affiliated group. See "Restrictions on Ownership of Shares."
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------
The date of this Prospectus is , 1998.
<PAGE>
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE
HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER, AGENT OR DEALER. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY BY ANY
PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL TO MAKE SUCH
AN OFFER OR SOLICITATION TO SUCH PERSON. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THE INFORMATION CONTAINED
OR INCORPORATED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO
THE DATE HEREOF.
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TABLE OF CONTENTS
PAGE
Available Information 3
Incorporation of Certain Documents by Reference 3
The Company 4
Use of Proceeds 4
Restrictions on Ownership of Shares 4
Federal Income Tax Considerations 5
Plan of Distribution 12
Legal Opinions 14
Experts 14
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and, in accordance therewith, files reports and other information
with the Securities and Exchange Commission (the "Commission").
Such reports, proxy statements and other information can be
inspected and copied at the Public Reference Section maintained
by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549; Chicago Regional Office, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661; and New York
Regional Office, 7 World Trade Center, New York, New York 10048.
Such reports, proxy statements and other information concerning
the Company can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005. The
Commission maintains a Web Site (http://www.sec.gov) that
contains reports, proxy and information statements and other
information regarding the Company.
The Company will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon their written or oral
request, a copy of any or all of the documents incorporated
herein by reference (other than exhibits to such documents).
Written requests for such copies should be addressed to 8888
Keystone Crossing, Suite 1200, Indianapolis, Indiana 46240, Attn:
Investor Relations, telephone number (317) 574-3531.
The Company has filed with the Commission a registration
statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933 with respect to the Common Stock offered
hereby. For further information with respect to the Company and
the Common Stock offered hereby, reference is made to the
Registration Statement and exhibits thereto. Statements contained
in this Prospectus as to the contents of any contract or other
documents are not necessarily complete, and in each instance,
reference is made to the copy of such contract or documents filed
or incorporated by reference as an exhibit to the Registration
Statement, each such statement being qualified in all respects by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company under the
Exchange Act with the Commission are incorporated in this
Prospectus by reference and are made a part hereof:
1. The Company's Annual Report on Form 10-K (file no. 1-9044)
for the year ended December 31, 1997.
2. The Company's Quarterly Reports on Form 10-Q (file no. 1-9044)
for the quarters ended March 31, 1998 and June 30, 1998.
3. The Company's Current Reports on Form 8-K (file no. 1-9044)
filed February 26, 1998, March 27, 1998, April 24, 1998,
April 27, 1998 and July 31, 1998.
4. The description of the Common Stock contained in the Company's
registration statement on Form 10 (file no. 1-9044) as amended.
Each document filed subsequent to the date of this
Prospectus pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and prior to termination of the offering of all
Common Stock to which this Prospectus relates shall be deemed to
be incorporated by reference in this Prospectus and shall be part
hereof from the date of filing of such document. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained in this Prospectus (in the case of a
statement in a previously-filed document incorporated or deemed
to be incorporated by reference herein) or in any other
subsequently filed document that is also incorporated or deemed
to be incorporated by reference herein, modifies or supersedes
such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. Subject to the foregoing,
all information appearing in this Prospectus is qualified in its
entirety by the information appearing in the documents
incorporated by reference.
<PAGE>
THE COMPANY
The Company is a self-administered and self-managed real
estate investment trust that began operations through a related
entity in 1972. The Company owns direct or indirect interests in
a portfolio of industrial, office and retail properties (the
"Properties"), together with land (the "Land") for future
development. The Company has the largest commercial real estate
operations in Indianapolis and Cincinnati and is one of the
largest real estate companies in the Midwest.
All of the Company's interests in the Properties and the
Land are held by, and substantially all of its operations
relating to the Properties and the Land are conducted through,
Duke Realty Limited Partnership, an Indiana limited partnership
(the " Operating Partnership"). The Company controls the
Operating Partnership as the sole general partner and owner at
June 30, 1998, of in excess of 85% of the outstanding partnership
interests ("Units"). Each Unit may be exchanged by the holder
thereof (other than the Company) for Common Stock. With each such
exchange, the number of Units owned by the Company and,
therefore, the Company's percentage interest in the Operating
Partnership, will increase. In addition to owning the Properties
and the Land, the Operating Partnership also provides services
associated with leasing, property management, real estate
development, construction and miscellaneous tenant services (the
"Related Businesses") for the Properties. The Company also
provides services associated with the Related Businesses to third
parties and owners of indirectly owned properties through Duke
Realty Services Limited Partnership (the "Services Partnership")
on a fee basis.
The Company is an Indiana corporation that was originally
incorporated in the State of Delaware in 1985, and reincorporated
in the State of Indiana in 1992. The Company's executive offices
are located at 8888 Keystone Crossing, Suite 1200, Indianapolis,
Indiana 46240, and its telephone number is (317) 574-3531.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus
Supplement for any offering of Common Stock, the net proceeds
from the sale of Common Stock offered by the Company will be
available for the general corporate purposes of the Company.
These general corporate purposes may include, without limitation,
repayment of maturing obligations or obligations under lines of
credit maintained by the Company or its subsidiaries, redemption
of outstanding indebtedness, financing (in whole or in part) of
future development or acquisitions (including acquisitions of
companies and/or real estate and other assets), capital
expenditures and working capital. Pending any such uses, the
Company may invest the net proceeds from the sale of any Common
Stock or use them to reduce short-term indebtedness.
RESTRICTIONS ON OWNERSHIP OF SHARES
For the Company to qualify as a REIT for federal income tax
purposes, no more than 50% in value of its outstanding capital
shares may be owned, directly or indirectly, by five or fewer
individuals (as defined in the law to include certain entities)
during the last half of a taxable year or during a proportionate
part of a shorter taxable year, and the Common Stock must also be
beneficially owned by 100 or more persons during at least 335
days of a taxable year or during a proportionate part of a
shorter taxable year. Because the Company expects to continue to
qualify as a REIT, the Amended and Restated Articles of
Incorporation of the Company contain a restriction intended to
ensure compliance with these requirements which authorizes, but
does not require, the board of directors to refuse to give effect
to a transfer of Common Stock which, in its opinion, might
jeopardize the status of the Company as a REIT. This provision
also renders null and void any purported acquisition of shares
which would result in the disqualification of the Company as a
REIT. The provision also gives the board of directors the
authority to take such actions as it deems advisable to enforce
the provision. Such actions might include, but are not limited
to, refusing to give effect to, or seeking to enjoin, a transfer
which might jeopardize the Company's status as a REIT. The
provision also requires any shareholder to provide the Company
such information regarding his direct and indirect ownership of
Common Stock as the Company may reasonably require.
<PAGE>
FEDERAL INCOME TAX CONSIDERATIONS
The following summary of material federal income tax
considerations relevant to the Company and an investor in shares
of Common Stock is based upon current law, is not exhaustive of
all possible tax considerations, does not include a detailed
description of any state, local, or foreign tax considerations,
and does not describe all of the aspects of Federal income
taxation that may be relevant to a prospective shareholder in
light of his or her particular circumstances or to certain types
of shareholders (including insurance companies, tax exempt
entities, financial institutions or broker dealers, foreign
corporations and persons who are not citizens or residents of the
United States) subject to special treatment under the federal
income tax laws. As used in this section, the term "Company"
refers solely to Duke Realty Investments, Inc.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OR
HER OWN TAX ADVISOR REGARDING THE SPECIFIC TAX CONSEQUENCES TO
HIM OR HER OF THE ACQUISITION, OWNERSHIP AND SALE OF COMMON STOCK
IN AN ENTITY ELECTING TO BE TAXED AS A REAL ESTATE INVESTMENT
TRUST, INCLUDING THE FEDERAL, STATE AND LOCAL TAX CONSEQUENCES OF
SUCH ACQUISITION, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY
GENERAL. The Company expects to continue to be taxed as a
REIT for federal income tax purposes. Management believes that
the Company was organized and has operated in such a manner as to
meet the requirements for qualification and taxation as a REIT
under the Code, and that the Company intends to continue to
operate in such a manner. No assurance, however, can be given
that the Company will continue to operate in a manner so as to
remain qualified as a REIT.
In the opinion of Bose McKinney & Evans, which has acted as
counsel to the Company ("Counsel"), assuming the Company was
organized in conformity with and has satisfied the requirements
for qualification and taxation as a REIT under the Code for each
of its taxable years from and including the first year for which
the Company made the election to be taxed as a REIT, and the
assumptions and representations referred to below are true, the
proposed methods of operation of the Company, the Operating
Partnership and the Services Partnership will permit the Company
to continue to qualify to be taxed as a REIT for its current and
subsequent taxable years. This opinion is based upon certain
assumptions relating to the organization and operation of Duke
Services, Inc. ("DSI"), the Operating Partnership and the
Services Partnership and is conditioned upon certain
representations made by Company personnel and affiliates as to
certain factual matters relating to the Company's past operations
and the intended manner of future operation of the Company, the
Operating Partnership, and the Services Partnership. The opinion
is further based upon the Company's receipt of a letter ruling
from the IRS dated September 30, 1994, which concluded that the
Company's and the Operating Partnership's distributive shares of
the gross income of the Services Partnership will be in
proportion to their respective percentage shares of the capital
interests of the partners of the Services Partnership. Counsel is
not aware of any facts or circumstances which are inconsistent
with these assumptions and representations. Unlike a tax ruling,
an opinion of counsel is not binding upon the IRS, and no
assurance can be given that the IRS will not challenge the status
of the Company as a REIT for Federal income tax purposes. The
Company's qualification and taxation as a REIT has depended and
will depend upon, among other things, the Company's ability to
meet on a continuing basis, through ownership of assets, actual
annual operating results, receipt of qualifying real estate
income, distribution levels and diversity of stock ownership, the
various qualification tests imposed under the Code discussed
below. Counsel will not review compliance with these tests on a
periodic or continuing basis. Accordingly, no assurance can be
given respecting the satisfaction of such tests. See "--Taxation
of the Company - Failure to Qualify."
The following is a general summary of the Code sections
which govern the Federal income tax treatment of a REIT and its
shareholders. These sections of the Code are highly technical and
complex. This summary is
<PAGE>
qualified in its entirety by the applicable Code provisions,
Treasury Regulations, and administrative and judicial
interpretations thereof as currently in effect.
So long as the Company qualifies for taxation as a REIT and
distributes at least 95% of its REIT taxable income (computed
without regard to net capital gains or the dividends paid
deduction) for its taxable year to its shareholders, it will
generally not be subject to federal income tax with respect to
income which it distributes to its shareholders. However, the
Company may be subject to federal income tax under certain
circumstances, including taxes at regular corporate rates on any
undistributed REIT taxable income, the "alternative minimum tax"
on its items of tax preference, and taxes imposed on income and
gain generated by certain extraordinary transactions.
REQUIREMENTS FOR QUALIFICATION. The Code defines a REIT as
a corporation, trust or association: (1) which is managed by one
or more trustees or directors; (2) the beneficial ownership of
which is evidenced by transferable shares or by transferable
certificates of beneficial interest; (3) which would be taxable
as a domestic corporation but for Sections 856 through 859 of the
Code; (4) which is neither a financial institution nor an
insurance company subject to certain provisions of the Code; (5)
which has the calendar year as its taxable year; (6) the
beneficial ownership of which is held by 100 or more persons; (7)
during the last half of each taxable year not more than 50% in
value of the outstanding stock of which is owned, directly or
indirectly, by five or fewer individuals (as defined in the Code
to include certain entities); and (8) which meets certain income
and assets tests, described below. The Company believes it
currently satisfies all requirements.
INCOME TESTS. In order to qualify as a REIT, there are two
gross income tests that must be satisfied annually. For purposes
of these tests, the Company is deemed to be entitled to a share
of the gross income attributable to its proportionate interest in
any partnerships in which it holds an interest. First, at least
75% of the Company's gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived
directly or indirectly from investments relating to real property
(including "rents from real property," gain from the sale of real
property and, in certain circumstances, interest) or from
qualified types of temporary investments. Second, at least 95% of
the Company's gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived
from the same items which qualify under the 75% income test or
from dividends, interest and gain from the sale or disposition of
stock or securities, or from any combination of the foregoing.
Rents received by the Company will qualify as "rents from
real property" in satisfying the gross income tests for a REIT
described above only if several conditions (related to the
relationship of the tenant to the Company, the method of
determining the rent payable and nature of the property leased)
are met. The Company does not anticipate receiving rents in
excess of a de minimis amount that fail to meet these conditions.
Finally, for rents received to qualify as "rents from real
property," the Company generally must not operate or manage the
property or furnish or render services to tenants, other than
through an "independent contractor" that is adequately
compensated and from whom the Company derives no income;
provided, however, that the Company may perform services "usually
or customarily rendered" in connection with the rental of space
for occupancy only and not otherwise considered "rendered to the
occupant" ("Permissible Services").
The Company provides certain management, development,
construction and other tenant related services (collectively,
"Real Estate Services") with respect to the Properties through
the Operating Partnership, which is not an independent
contractor. Management believes that the material services
provided to tenants by the Operating Partnership are Permissible
Services. To the extent services to tenants do not constitute
Permissible Services, such services are performed by independent
contractors.
Under the Taxpayer Relief Act of 1997 (the "1997 Act"), in
determining whether a REIT satisfies the income tests, a REIT's
rental income from a property will not cease to qualify as "rents
from real property" merely because the REIT performs services for
a tenant other than permitted customary services if the amount
that the REIT is deemed to have received as a result of
performing impermissible services does not exceed one percent of
all amounts received directly or indirectly by the REIT with
respect to such property. The amount that a REIT will be
<PAGE>
deemed to have received for performing impermissible services is
at least 150% of the direct cost to the REIT of providing those
services.
The Company derives a portion of its income from the
Operating Partnership's interest as a limited partner in the
Services Partnership and its ownership of DSI which is a general
partner of the Services Partnership. The Services Partnership
receives fees for Real Estate Services with respect to properties
that are not owned directly by the Operating Partnership and fees
in consideration for the performance of management and
administrative services with respect to Properties that are not
entirely owned by the Operating Partnership. All or a portion of
such fees will not qualify as "rents from real property" for
purposes of the 75% or 95% gross income tests. Pursuant to
Treasury Regulations, a partner's capital interest in a
partnership determines its proportionate interest in the
partnership's gross income from partnership assets for purposes
of the 75% and 95% gross income tests. For this purpose, the
capital interest of a partner is determined by dividing its
capital account by the sum of all partners' capital accounts.
The partnership agreement of the Services Partnership provides,
however, for varying allocations of income which differ from
capital interests, subject to certain limitations on the
aggregate amount of gross income which may be allocated to the
Operating Partnership and DSI. The Company has obtained a letter
ruling from the IRS that allocations according to capital
interests are proper for applying the 75% and 95% gross income
tests. Thus, for purposes of these gross income tests, the
Services Partnership allocates its gross income to the Operating
Partnership and DSI based on their capital interests in the
Services Partnership. Although certain of the fees allocated from
the Services Partnership do not qualify under the 75% or 95%
gross income tests as "rents from real property," the Company
believes that the aggregate amount of such fees (and any other
non-qualifying income) allocated to the Company in any taxable
year has not and will not cause the Company to exceed the limits
on non-qualifying income under the 75% or 95% gross income tests
described above.
If the Company fails to satisfy one or both of the 75% or
95% gross income tests for any taxable year, it may nevertheless
qualify as a REIT for such year if it is entitled to relief under
certain provisions of the Code. It is not possible, however, to
state whether in all circumstances the Company would be entitled
to the benefit of these relief provisions. Even if these relief
provisions apply, a tax would be imposed on certain excess net
income.
ASSET TESTS. In order for the Company to maintain its
qualification as a REIT, at the close of each quarter of its
taxable year, it must also satisfy three tests relating to the
nature of its assets. First, at least 75% of the value of the
Company's total assets must be represented by "real estate
assets," cash, cash items, and government securities. Second, not
more than 25% of the Company's total assets may be represented by
securities other than those in the 75% assets class. Third, of
the assets held in securities other than those in the 75% assets
class, the value of any one issuer's securities owned by the
Company may not exceed 5% of the value of the Company's total
assets, and the Company may not own more than 10% of any one
issuer's outstanding voting securities (excluding securities of a
qualified REIT subsidiary as defined in the Code or another
REIT).
The Company is deemed to directly hold its proportionate
share of all real estate and other assets of the Operating
Partnership as well as its proportionate share of all assets
deemed owned by the Operating Partnership and DSI through their
ownership of partnership interests in the Services Partnership
and other partnerships. As a result, management believes that
more than 75% of the Company's assets are real estate assets. In
addition, management does not expect the Company to hold (1) any
securities representing more than 10% of any one issuer's voting
securities other than DSI, which is a qualified REIT subsidiary,
nor (2) securities of any one issuer exceeding 5% of the value of
the Company's gross assets (determined in accordance with
generally accepted accounting principles).
ANNUAL DISTRIBUTION REQUIREMENTS. The Company, in order to
qualify as a REIT, generally must distribute dividends (other
than capital gain dividends) to its shareholders in an amount at
least equal to (A) the sum of (i) 95% of the Company's "REIT
taxable income" (computed without regard to the dividends paid
deduction and the Company's net capital gain), and (ii) 95% of
the net income (after tax), if any, from foreclosure property,
minus (B) the sum of certain items of non cash income. To the
extent that the Company does not distribute all of its net
capital gain or distributes at least 95%, but less than 100%, of
its "REIT taxable income," as adjusted, it will be subject to tax
on the undistributed amount at regular capital gains and ordinary
corporate tax rates. Furthermore, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85%
of its REIT ordinary income
<PAGE>
for such year, (ii) 95% of its REIT net capital gain income for
such year, and (iii) any undistributed taxable income from prior
periods, the Company will be subject to regular capital gains and
ordinary corporate tax rates on undistributed income and also may
be subject to a 4% excise tax on undistributed income in certain
events. Under the 1997 Act, certain non-cash income, including
income from cancellation of indebtedness and original issue
discount, will be excluded from income in determining the amount
of dividends that a REIT is required to distribute. In addition,
a REIT may elect to retain and pay income tax on any net long-
term capital gains and require its shareholders to include such
undistributed net capital gains in their income. If a REIT made
such an election, the REIT's shareholders would receive a tax
credit attributable to their share of capital gains tax paid by
the REIT on the undistributed net capital gain that was included
in the shareholders' income, and such shareholders would receive
an increase in the basis of their shares in the amount of
undistributed net capital gain included in their income reduced
by the amount of the credit. The Company believes that it has
made and intends to continue to make timely distributions
sufficient to satisfy the annual distribution requirements. In
this regard, the partnership agreement of the Operating
Partnership authorizes the Company, as general partner, to take
such steps as may be necessary to cause the Operating Partnership
to distribute to its partners an amount sufficient to permit the
Company to meet these distribution requirements. It is possible,
however, that the Company, from time to time, may not have
sufficient cash or other liquid assets to meet the 95%
distribution requirement due primarily to the expenditure of cash
for nondeductible expenses such as principal amortization or
capital expenditures. In such event, the Company may borrow or
may cause the Operating Partnership to arrange for short term or
other borrowing to permit the payment of required dividends or
pay dividends in the form of taxable stock dividends. If the
amount of nondeductible expenses exceeds non-cash deductions, the
Operating Partnership may refinance its indebtedness to reduce
principal payments and borrow funds for capital expenditures.
FAILURE TO QUALIFY. If the Company fails to qualify for
taxation as a REIT in any taxable year, the Company will be
subject to tax (including any applicable corporate alternative
minimum tax) on its taxable income at regular corporate rates.
Distributions to shareholders in any year in which the Company
fails to qualify will not be required to be made and, if made,
will not be deductible by the Company. Unless entitled to relief
under specific statutory provisions, the Company also will be
disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not
possible to state whether in all circumstances the Company would
be entitled to such statutory relief. The 1997 Act contains a
number of technical provisions that reduce the risk that a REIT
will inadvertently fail to qualify as a REIT.
TAX ASPECTS OF THE COMPANY'S INVESTMENTS IN PARTNERSHIPS
EFFECT OF TAX STATUS OF OPERATING PARTNERSHIP AND SERVICES
PARTNERSHIP AND OTHER PARTNERSHIPS ON REIT QUALIFICATION. All of
the Company's investments are through DSI and the Operating
Partnership, which in turn hold interests in other partnerships,
including the Services Partnership. The Company believes that the
Operating Partnership, and each other partnership in which it
holds an interest, is properly treated as a partnership for tax
purposes (and not as an association taxable as a corporation).
If, however, the Operating Partnership were treated as an
association taxable as a corporation, the Company would cease to
qualify as a REIT.
Tax Allocations with Respect to the Properties. The
Operating Partnership was formed by way of contributions of
appreciated property (including certain of the Properties) to the
Operating Partnership. When property is contributed to a
partnership in exchange for an interest in the partnership, the
partnership generally takes a carryover basis in that property
for tax purposes equal to the adjusted basis of the contributing
partner in the property, rather than a basis equal to the fair
market value of the property at the time of contribution (this
difference is referred to as "Book Tax Difference"). The
partnership agreement of the Operating Partnership requires
allocations of income, gain, loss and deduction with respect to a
contributed Property be made in a manner consistent with the
special rules of Section 704(c) of the Code and the regulations
thereunder, which will tend to eliminate the Book Tax Differences
with respect to the contributed Properties over the life of the
Operating Partnership. However, because of certain technical
limitations, the special allocation rules of Section 704(c) may
not always entirely eliminate the Book Tax Differences on an
annual basis or with respect to a specific taxable transaction
such as a sale. Thus, the carryover basis of the contributed
Properties in the hands of the Operating Partnership could cause
the Company (i) to be allocated lower amounts of depreciation and
other deductions for tax
<PAGE>
purposes than would be allocated to the Company if all Properties
were to have a tax basis equal to their fair market value at the
time of contribution, and (ii) possibly to be allocated taxable
gain in the event of a sale of such contributed Properties in
excess of the economic or book income allocated to the Company as
a result of such sale. The foregoing principles also apply in
determining the earnings and profits of the Company for purposes
of determining the portion of distributions taxable as dividend
income. The application of these rules over time may result in a
higher portion of distributions being taxed as dividends than
would have occurred had the Company purchased its interests in
the Properties at their agreed values.
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as the Company qualifies as a REIT, dividend
distributions made to the Company's taxable domestic shareholders
out of current or accumulated earnings and profits (and not
designated as capital gain dividends) will be taken into account
by them as ordinary income and will not be eligible for the
dividends received deduction for corporations. In addition, any
dividend declared by the Company in October, November or December
of any year payable to a shareholder of record on a specified
date in any such month shall be treated as both paid by the
Company and received by the shareholder on December 31 of such
year; provided that the dividend is actually paid by the Company
during January of the following calendar year.
Distributions in excess of current and accumulated earnings
and profits will not be taxable to a holder to the extent that
they do not exceed the adjusted basis of the holder's shares, but
rather will reduce the adjusted basis of such shares. To the
extent that such distributions exceed the adjusted basis of a
holder's shares, they will be included in income as long-term
capital gain (or short-term capital gain if the shares have been
held for one year or less) assuming the shares are a capital
asset in the hands of the holder. Shareholders may not include in
their individual income tax returns any net operating losses or
capital losses of the Company.
In general, a domestic shareholder will realize capital gain
or loss on the disposition of common stock equal to the
difference between (i) the amount of cash and the fair market
value of any property received on such disposition and (ii) the
shareholder's adjusted basis of such common stock. Under the 1997
Act, for gains realized after July 28, 1997, and subject to
certain exceptions, the maximum rate of tax on net capital gains
of individuals, trusts and estates from the sale or exchange of
assets held for more than 18 months has been reduced to 20%, and
the maximum rate is reduced to 18% for assets acquired after
December 31, 2000 and held for more than five years. For
taxpayers who would be subject to a maximum tax rate of 15%, the
rate on net capital gains is reduced to 10%, and effective for
taxable years commencing after December 31, 2000, the rate is
reduced to 8% for assets held for more than five years. The
maximum rate for net capital gains attributable to the sale of
depreciable real property held for more than 18 months is 25% to
the extent of the deductions for depreciation with respect to
such property. Long-term capital gain allocated to a shareholder
by the Company will be subject to the 25% rate to the extent that
the gain does not exceed depreciation on real property sold by
the Company. The maximum rate of capital gains tax for capital
assets held more than one year but not more than 18 months
remains at 28%. The taxation of capital gains of corporations was
not changed by the 1997 Act. Loss upon a sale or exchange of
common stock by a shareholder who has held such common stock for
six months or less (after applying certain holding period rules)
will be treated as a long-term capital loss to the extent of
distributions from the Company required to be treated by such
shareholder as long-term capital gain.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
Tax-exempt entities, including qualified employee pension
and profit sharing trusts and individual retirement accounts
("Exempt Organizations"), generally are exempt from federal
income taxation. However, they are subject to taxation on their
unrelated business taxable income ("UBTI"). While many
investments in real estate general UBTI, the IRS has issued a
publishing ruling that dividend distributions from a REIT to an
exempt employee pension trust do not constitute UBTI, provided
that the shares of the REIT are not otherwise used in an
unrelated trade or business of the exempt employee pension trust.
Based on that ruling, amounts distributed by the Company to
Exempt organizations generally should not constitute UBTI.
However, if an Exempt Organization finances its acquisitions of
the common shares with debt, a portion of its income from the
Company will constitute
<PAGE>
UBTI pursuant to the "debt-financed property" rules. Furthermore,
social clubs, voluntary employee benefit associations,
supplemental unemployment benefit trusts, and qualified group
legal services plans that are exempt from taxation under
paragraphs (7), (9), (17), and (20), respectively, of Code
section 501(c) are subject to different UBTI rules, which
generally will require them to characterize distributions from
the Company as UBTI.
In addition, in certain circumstances, a pension trust that
owns more than 10% of the Company's shares is required to treat a
percentage of the dividends from the Company as UBTI (the "UBTI
Percentage"). The UBTI Percentage is the gross income derived by
the Company from an unrelated trade or business (determined as if
the Company were a pension trust) divided by the gross income of
the Company for the year in which the dividends are paid. The
UBTI rule applies to a pension trust holding more than 10% of the
Company's stock only if (i) the UBTI Percentage is at least 5%,
(ii) the Company qualifies as a REIT by reason of the
modification of the "five or fewer" stock ownership requirement
that allows the beneficiaries of the pension trust to be treated
as holding shares of the Company in proportion to their actuarial
interests in the pension trust, and (iii) either (A) one pension
trust owns more than 25% of the value of the Company's shares of
(B) a group of pension trusts individually holding more than 10%
of the value of the Company's shares collectively owns more than
50% of the value of the Company's shares.
BACKUP WITHHOLDING
The Company will report to its domestic shareholders and the
IRS the amount of dividends paid during each calendar year, and
the amount of tax withheld, if any. Under the backup withholding
rules, a shareholder may be subject to backup withholding at the
rate of 31% with respect to dividends paid unless such holder (a)
is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact, or (b) provides a
taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with
applicable requirements of the backup withholding rules. A
shareholder that does not provide the Company with his correct
taxpayer identification number may also be subject to penalties
imposed by the IRS. Any amount paid as backup withholding will be
creditable against the shareholder's income tax liability. In
addition, the Company may be required to withhold a portion of
capital gain distributions made to any shareholders who fail to
certify their non-foreign status to the Company.
The Treasury Department recently issued proposed regulations
regarding the withholding and information reporting rules
discussed above. In general, the proposed regulations do not
alter the substantive withholding requirements but unify current
certification procedures and forms, and clarify and modify
reliance standards. If finalized in their current form, the
proposed regulations would generally be effective for payments
made after December 31, 1997, subject to certain transition
rules.
TAXATION OF NON-U.S. SHAREHOLDERS
The rules governing U.S. Federal income taxation of
nonresident alien individuals, foreign corporations, foreign
partnerships, and other foreign shareholders (collectively, "Non-
U.S. Shareholders") are complex, and no attempt will be made
herein to provide more than a limited summary of such rules.
Prospective Non-U.S. Shareholders should consult with their own
tax advisors to determine the impact of U.S. Federal, state and
local income tax laws with regard to an investment in common
stock, including any reporting requirements.
Distributions that are not attributable to gain from sales
or exchanges by the Company of U.S. real property interests and
not designated by the Company as capital gain dividends will be
treated as dividends of ordinary income to the extent that they
are made out of current or accumulated earnings and profits of
the Company. Such distributions, ordinarily, will be subject to a
withholding tax equal to 30% of the gross amount of the
distribution unless an applicable tax treaty reduces that tax.
Distributions in excess of current and accumulated earnings and
profits of the Company will not be taxable to a Non-U.S.
Shareholders to the extent that they do not exceed the adjusted
basis of the shareholder's common stock, but rather will reduce
that adjusted basis of such common stock. To the extent that such
distributions exceed the adjusted tax basis of a Non-U.S.
Shareholder's common stock, they will give rise to tax liability
if the Non-U.S. Shareholder would otherwise be subject to tax on
any gain from the sale or disposition of his common stock as
described below (in which case they also may be subject to a 30%
branch
<PAGE>
profits tax if the shareholder is a foreign corporation). As a
result of a legislative change made by the Small Business Job
Protection Act of 1996, effective for distributions made after
August 20, 1996, the Company is required to withhold 10% of any
distribution in excess of the Company's current accumulated
earnings and profits. Consequently, although the Company intends
to withhold at a rate of 30% on the entire amount of any
distribution, to the extent that the Company does not do so any
portion of a distribution not subject to withholding at a rate of
30% will be subject to withholding at a rate of 10%. However, the
Non-U.S. Shareholder may seek a refund of such amounts from the
IRS if it is subsequently determined that such distribution was,
in fact, in excess of current or accumulated earnings and profits
of the Company, and the amount withheld exceeds the Non-U.S.
Shareholders' United States tax liability, if any, with respect
to the distribution.
For any year in which the Company qualifies as a REIT,
distributions that are attributable to gain from sales or
exchanges by the Company of U.S. real property interests will be
taxed to a Non-U.S. Shareholder under the provisions of the
Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA") at
the normal capital gain rates applicable to domestic shareholders
(subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien
individuals). Also, distributions subject to FIRPTA may be
subject to a 30% branch profits tax in the hands of a corporation
Non-U.S. Shareholder not entitled to treaty relief or exemption.
The Company is required to withhold 35% of any distribution that
is or could be designated by the Company as a capital gain
dividend. The amount withheld is creditable against the Non-U.S.
Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of
common stock generally will not be taxed under FIRPTA if the
Company is a "domestically controlled REIT," defined generally as
a REIT in which at all times during a specified testing period
less than 50% in value of the stock was held directly or
indirectly by foreign persons. The Company believes that it is a
"domestically controlled REIT," and, therefore, that the sale of
common stock will not be subject to taxation under FIRPTA. If the
gain on the sale of common stock were to be subject to tax under
FIRPTA, the Non-U.S. Shareholder would be subject to the same
treatment as domestic shareholders with respect to such gain
(subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien
individuals), and the purchaser of the common stock would be
required to withhold and remit to the IRS 10% of the purchase
price.
STATE AND LOCAL TAXES
The Company or its shareholders or both may be subject to
state, local or other taxation in various state, local or other
jurisdictions, including those in which they transact business or
reside. The tax treatment in such jurisdictions may differ from
the Federal income tax consequences discussed above.
Consequently, prospective shareholders should consult their own
tax advisors regarding the effect of state and local tax laws on
an investment in shares of the Company.
<PAGE>
PLAN OF DISTRIBUTION
The Company may from time to time offer and sell Common
Stock in one or more transactions (which may involve block
transactions) on the New York Stock Exchange (the "NYSE") or
otherwise, in special offerings, exchange distributions or
secondary distributions pursuant to and in accordance with the
rules of the NYSE, on other securities exchanges, in the over-the-
counter market, in negotiated transactions, through the writing
of options on the Common Stock (whether such options are listed
on an options exchange or otherwise), or a combination of such
methods of sale, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at
negotiated prices.
The Company may effect such transactions by selling Common
Stock to or through broker-dealers or through other agents, and
such broker-dealers or agents may receive compensation in the
form of commissions from the Company, which will not exceed those
customary in the types of transactions involved, and/or the
purchasers of Common Stock for whom they may act as agent. Any
dealers or agents that participate in the distribution of Common
Stock may be deemed to be "underwriters" within the meaning of
the Securities Act, and any profit on the sale of Common Stock by
them and any commissions received by any such dealers or agents
might be deemed to be underwriting commissions under the
Securities Act.
The Company has entered in a Distribution Agreement (the
"Distribution Agreement") with Frith Brothers Investments, Inc.
("Frith Brothers") with respect to sales of Common Stock and may
in the future from time to time enter into other sales agreements
with other sales agents or underwriters. The Company expects the
sales methods under any such other agreements to be substantially
similar to those under the Distribution Agreement.
In the event of a "distribution" of the Common Stock, the
Company, any selling broker-dealer or agent and any "affiliated
purchasers" may be subject to Regulation M under the Exchange
Act, which would prohibit, with certain exceptions, each such
person from bidding for or purchasing any security which is the
subject of such distribution until his participation in that
distribution is completed. In addition, Regulation M under the
Exchange Act prohibits certain "stabilizing bids" or "stabilizing
purchases" for the purpose of pegging, fixing or stabilizing the
price of Common Stock in connection with this offering.
At a time a particular offer of Common Stock is made, a
prospectus supplement, if required, will be distributed that will
set forth the name or names of any dealers or agents and any
commissions and other terms constituting compensation from the
Company and any other required information. The Common Stock may
be sold from time to time at varying prices determined at the
time of sale or at negotiated prices.
SALES PURSUANT TO DISTRIBUTION AGREEMENT WITH FRITH BROTHERS
Pursuant to the terms of the Distribution Agreement between
the Company and Frith Brothers, which has been filed as an
exhibit to the Registration Statement of which this Prospectus is
a part and is incorporated herein by reference, the Company may
issue and sell up to 1,500,000 shares (the "Maximum Amount") of
the Common Stock from time to time through Frith Brothers, as
sales agent for the Company. Such sales, if any, will be made by
means of ordinary brokers' transactions on the NYSE or other
markets on which the Common Stock is then traded. Such sales will
be effected during a series of one or more (up to 52) pricing
periods (each, a "Pricing Period"), each consisting of five
consecutive trading days in duration, unless a shorter period has
otherwise been agreed to by the Company and Frith Brothers.
During any Pricing Period, the Company and Frith Brothers, by
mutual written agreement, will designate the number of shares of
stock to be sold as Average Market Price Shares. If the Company
does not meet the exemptive provisions set forth in Rule
101(c)(1) of Regulation M of the Exchange Act, the number of
Average Market Price Shares and any Additional Shares (as defined
below) sold on any day in any Pricing Period shall not exceed 10%
of the average daily trading volume of the Common Stock over the
preceding 60 days. For such Pricing Period, an Average Market
Price (as defined below) will be computed. With respect to any
Pricing Period, the Average Market Price is equal to the average
of the arithmetic mean of the high and low sales prices of the
Common Stock of the Company reported on the NYSE for each trading
day of such Pricing Period.
<PAGE>
The net proceeds to the Company with respect to sales of
Average Market Price Shares will equal a percentage of the
Average Market Price (the "Company's Percent") for each share of
Common Stock sold during the Pricing Period plus Excess Proceeds
(as defined below), if any, plus Alternative Proceeds (as defined
below), if any. The Company's Percent will be 98.0% with respect
to the first 250,000 shares that may be sold under the
Distribution Agreement, 98.25% for the next 250,000 shares that
may be sold thereunder, and 98.5% for the remaining shares that
may be sold thereunder. The compensation to Frith Brothers for
such sales in any Pricing Period will equal the difference
between the aggregate gross sales prices at which such sales are
actually effected and the net proceeds to the Company for such
sales, but in no case will exceed the maximum amount permitted
pursuant to any applicable requirements of the National
Association of Securities Dealers, Inc., as determined in good
faith by Frith Brothers (the "Maximum Commission"). To the extent
that Frith Brothers' compensation under the foregoing formula
would otherwise exceed the Maximum Commission, the excess will
constitute additional net proceeds to the Company (the "Excess
Proceeds").
During any Pricing Period, the Company may designate a
minimum price and instruct Frith Brothers not to transact any
sales below such price. If such an instruction is given and as a
result thereof Frith Brothers is unable to sell, on a daily
basis, shares of Common Stock in any amount greater than or equal
to the daily pro rata portion (e.g., 20% as to any five-day
pricing Period) of Average Market Price Shares to be sold during
such Pricing Period, then the prices reported on the NYSE for
that day will not be computed in calculating the Average Market
Price for such Pricing Period and the net proceeds payable to the
Company (the "Alternative Proceeds") in respect of any sales of
Average Market Price Shares effected that day (the "Alternative
Shares") by Frith Brothers will be equal to the Company's Percent
times the weighted average sales prices at which Frith Brothers
has actually effected sales during that day. The compensation
payable to Frith Brothers for the sale of Alternative Shares will
be equal to the difference between the gross sales proceeds and
the net proceeds to the Company for such sales. The Alternative
Shares will be excluded from determining the net proceeds to the
Company for sales of Average Market Price Shares for such Pricing
Period.
During any Pricing Period (whether or not Average Market
Price Shares are being sold during such Pricing Period), the
Company and Frith Brothers may agree upon the sale of shares
("Additional Shares") of Common Stock in addition to or instead
of the sale of Average Market Price Shares, such Additional
Shares to be included in the computation of the Maximum Amount.
The compensation to Frith Brothers with respect to each of the
Additional Shares sold in any Pricing Period will be a fixed
percentage ("Frith Brothers' Percent") of the gross sales price
per share. Frith Brothers' Percent will equal 2% with respect to
the first 250,000 shares that may be sold under the Distribution
Agreement, 1.75% for the next 250,000 shares that may be sold
thereunder and 1.5% for the remaining shares that may be sold
thereunder. Unless otherwise indicated in a further Prospectus
Supplement, Frith Brothers as sales agent will act on a best
efforts basis.
Settlements of sales of Additional Shares will occur on the
third business day following the date on which such sales are
made. Unless the Company and Frith Brothers otherwise agree,
settlements of sales of Average Market Price Shares will also
occur on the third business day following the date on which such
sales are made. Purchases of Common Stock from Frith Brothers as
sales agent for the Company will settle the regular way on the
NYSE or other applicable market. There is no arrangement for
funds to be received in an escrow, trust or similar arrangement.
At the end of each Pricing Period, the Company will file a
Prospectus Supplement under the applicable paragraph of Rule
424(b) promulgated under the Securities Act, which Prospectus
Supplement will set forth the dates included in such Pricing
Period, the number of such shares of Common Stock sold through
Frith Brothers as sales agent (identifying separately the number
of Average Market Price Shares and the number of Additional
Shares), the highest and lowest executed sales price at which
Average Market Price Shares were sold during such Pricing Period,
the net proceeds to the Company, the compensation payable by the
Company to Frith Brothers with respect to such sales of Average
Market Price Shares and Additional Shares pursuant to the
formulas set forth above, and any other information then required
by applicable law to be included therein.
<PAGE>
In connection with the sale of the Common Stock on behalf of
the Company, Frith Brothers may be deemed to be an underwriter
within the meaning of the Securities Act, and the compensation of
Frith Brothers may be deemed to be underwriting commissions or
discounts. The Company has agreed to provide indemnification and
contribution to Frith Brothers against certain civil liabilities,
including liabilities under the Securities Act. Frith Brothers
may engage in transactions with, or perform services for, the
Company in the ordinary course of business.
The offering of Common Stock pursuant to the Distribution
Agreement will terminate upon the earlier of (i) the sale of all
shares of Common Stock subject thereto, or (ii) termination of
the Distribution Agreement. The Distribution Agreement may be
terminated by the Company in its sole discretion after giving ten
days' written notice to Frith Brothers. Frith Brothers has the
right to terminate the Distribution Agreement in certain
circumstances specified in the Distribution Agreement.
LEGAL OPINIONS
The legality of the Common Stock offered hereby is being
passed upon for the Company by Bose McKinney & Evans,
Indianapolis, Indiana. The description of Federal income tax
matters contained in this Prospectus entitled "Federal Income Tax
Considerations" is also based on the opinion of Bose McKinney &
Evans.
EXPERTS
The Consolidated Financial Statements and related Schedule
of the Company as of December 31, 1997 and 1996, and for each of
the years in the three-year period ended December 31, 1997,
incorporated herein by reference, have been incorporated herein
in reliance on the report of KPMG Peat Marwick LLP, independent
certified public accountants, also incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
With respect to the unaudited interim financial information
for the periods ended March 31, 1998 and 1997, and June 30, 1998
and 1997, incorporated by reference herein, the independent
certified public accountants have reported that they applied
limited procedures in accordance with their professional
standards for a review of such information. However, their
separate report included in the Company's quarterly reports on
Form 10-Q for the quarters ended March 31, 1998 and June 30, 1998,
and incorporated by reference herein, states that they did not
audit and they do not express an opinion on that interim
financial information. Accordingly, the degree of reliance on
their reports on such information should be restricted in light
of the limited nature of the review procedures applied. The
accountants are not subject to the liability provisions of
section 11 of the Securities Act of 1933 for their report on the
unaudited interim financial information because that report is
not a "report" or a "part" of the registration statement prepared
or certified by the accountants within the meaning of sections 7
and 11 of such Act.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
<S> <C>
Registration Fee $ 9,500
Printing Expenses 10,000
Professional Fees and Expenses 20,000
Miscellaneous 10,500
------
Total $50,000
======
</TABLE>
ITEM 15.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is an Indiana corporation. The Company's officers
and directors are and will be indemnified under Indiana law, the
Articles of Incorporation of the Company, and the partnership
agreements of the Operating Partnership and Duke Realty Services
Limited Partnership against certain liabilities. Chapter 37 of
The Indiana Business Corporation Law (the "IBCL") requires a
corporation, unless its articles of incorporation provide
otherwise, to indemnify a director or an officer of the
corporation who is wholly successful, on the merits or otherwise,
in the defense of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, against reasonable
expenses, including counsel fees, incurred in connection with the
proceeding. The Company's Articles of Incorporation do not
contain any provision prohibiting such indemnification.
The IBCL also permits a corporation to indemnify a director,
officer, employee or agent who is made a party to a proceeding
because the person was a director, officer, employee or agent of
the corporation against liability incurred in the proceeding if
(i) the individual's conduct was in good faith and (ii) the
individual reasonably believed (A) in the case of conduct in the
individual's official capacity with the corporation that the
conduct was in the corporation's best interests and (B) in all
other cases that the individual's conduct was at least not
opposed to the corporation's best interests and (iii) in the
case of a criminal proceeding, the individual either (A) had
reasonable cause to believe the individual's conduct was lawful
or (B) had no reasonable cause to believe the individual's
conduct was unlawful. The IBCL also permits a corporation to pay
for or reimburse reasonable expenses incurred before the final
disposition of the proceeding and permits a court of competent
jurisdiction to order a corporation to indemnify a director or
officer if the court determines that the person is fairly and
reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the person met the
standards for indemnification otherwise provided in the IBCL.
II-1
<PAGE>
The Company's Articles of Incorporation provide for certain
additional limitations of liability and indemnification. Section
13.01 of the Articles of Incorporation provides that a director
shall not be personally liable to the Company or its shareholders
for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the Company or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for voting for or
assenting to an unlawful distribution, or (iv) for any
transaction from which the director derived an improper personal
benefit. Section 13.02 of the Articles of Incorporation generally
provides that any director or officer of the Company or any
person who is serving at the request of the Company as a
director, officer, employee or agent of another entity shall be
indemnified and held harmless by the Company to the fullest
extent authorized by the IBCL against all expense, liability and
loss (including attorneys' fees, judgments, fines certain
employee benefits excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered in
connection with a civil, criminal, administrative or
investigative action, suit or proceeding to which such person is
a party by reason of the person's service with or at the request
of the Company. Section 13.02 of the Articles of Incorporation
also provides such persons with certain rights to be paid by the
Company the expenses incurred in defending any such proceeding in
advance of the final disposition and the right to enforce
indemnification claims against the Company by bringing suit
against the Company.
The Company's Articles of Incorporation authorize the Company
to maintain insurance to protect itself and any director,
officer, employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise against
expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense,
liability or loss under the IBCL.
Each of the partnership agreements for the Operating
Partnership and Duke Realty Services Limited Partnership also
provides for indemnification of the Company and its officers and
directors to substantially the same extent provided to officers
and directors of the Company in its Articles of Incorporation,
and limits the liability of the Company and its officers and
directors to the Operating Partnership and its partners and to
Duke Realty Services Limited Partnership and its partners,
respectively, to substantially the same extent limited under the
Company's Articles of Incorporation.
II-2
<PAGE>
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration
Statement:
1 Distribution Agreement between Duke Realty Investments, Inc. and
Frith Brothers Investments, Inc.
3.1 Amended and Restated Articles of Incorporation of Duke Realty
Investments, Inc., incorporated by reference from Exhibit
3.1 to the Registration Statement on Form S-3 of Duke Realty
Investments, Inc., as amended, File No. 33-61361 (the "1995 Registration
Statement"), and amendments thereto incorporated by reference from an
exhibit to the annual report on Form 10-K of Duke Realty Investments,
Inc. for the year ended December 31, 1997 (the "1997 10-K"), from
Exhibit 3.2 to the Registration Statement on Form S-3 of Duke Realty
Investments, Inc., as amended, File No. 333-57755, and from an
exhibit to the quarterly report on Form 10-Q of Duke Realty
Investments, Inc. for the quarter ended June 30, 1998.
3.2 Amended and Restated Bylaws of Duke Realty Investments, Inc.,
incorporated by reference from Exhibit 3.2 to the 1995
Registration Statement, and amendments thereto incorporated by
reference to exhibits to the 1997 10-K, and to the current report
on Form 8-K of Duke Realty Investments, Inc. filed July 31, 1998.
5 Opinion and consent of Bose McKinney & Evans regarding legality of
the securities being registered.
8 Tax opinion and consent of Bose McKinney & Evans.
15 Letter regarding unaudited interim financial information.
23 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in
Item 15 above, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
The undersigned Registrant hereby further undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned Registrant further undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Indianapolis, State of Indiana, on August 26, 1998.
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
----------------------
Executive Vice President,
Chief Administrative Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed as of August 26, 1998
by the following persons in the capacities indicated.
SIGNATURE TITLE
Thomas L. Hefner* Director and President and Chief Executive
- ----------------------- Officer
Thomas L. Hefner (Principal Executive Officer)
Darell E. Zink, Jr.* Director and Executive Vice President,
- ------------------------ Chief Financial Officer and Assistant
Darell E. Zink, Jr. Secretary
(Principal Accounting Officer)
Edward T. Baur* Director
- ------------------------
Edward T. Baur
Geoffrey Button* Director
- ------------------------
Geoffrey Button
Ngaire E. Cuneo* Director
- ------------------------
Ngaire E. Cuneo
II-5
<PAGE>
Howard L. Feinsand* Director
- ------------------------
Howard L. Feinsand
L. Ben Lytle* Director
- ------------------------
L. Ben Lytle
John D. Peterson* Director
- ------------------------
John D. Peterson
James E. Rogers* Director
- ------------------------
James E. Rogers
Daniel C. Staton* Director
- ------------------------
Daniel C. Staton
Jay J. Strauss* Director
- ------------------------
Jay J. Strauss
John W. Wynne* Director
- -----------------------
John W. Wynne
* By: /s/ Dennis D. Oklak
--------------------
Dennis D. Oklak
Attorney-in-Fact
II-6
DUKE REALTY INVESTMENTS, INC.
1,500,000 Shares
(Common Stock, $0.01 par value)
DISTRIBUTION AGREEMENT
July ___, 1998
FRITH BROTHERS INVESTMENTS, INC.
992 Old Eagle School Road
Suite 915
Wayne, Pennsylvania 19087
Gentlemen:
Duke Realty Investments, Inc., an Indiana corporation (the
"Company"), confirms its agreement with Frith Brothers Investments,
Inc. (the "Agent"), as follows:
SECTION 1. Description of Securities.
-------------------------
The Company proposes to issue and sell through the Agent, as sales
agent, up to 1,500,000 shares (the "Maximum Amount") of common stock,
par value $0.01 per share (the "Stock"), on the terms set forth in
Section 3 hereof.
SECTION 2. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to, and agrees with, the Agent
that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and the rules and regulations
thereunder ("Rules and Regulations"). A registration statement on Form
S-3 (Registration No. 333-26845) with respect to, among other
securities, the Stock, including a form of prospectus, has been
prepared by the Company in conformity with the requirements of the Act
and the Rules and Regulations and filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement and prospectus may have been amended or
supplemented prior to the date of this Agreement. Any such amendment or
supplement was so prepared and filed, and any such amendment filed
after the effective date of such registration statement has become
effective. No stop order suspending the effectiveness of the
registration statement has been issued, and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission. Copies of such registration statement and
prospectus, any such amendment or supplement and all documents
incorporated by reference therein that were filed with the Commission
on or prior to the date of this Agreement have been delivered to the
Agent. Such registration statement, as it may have heretofore been
amended, is referred to herein as the "Registration Statement," and the
final form of prospectus included in the Registration Statement, as
amended or supplemented from time to time, is referred to herein as the
"Prospectus." Any reference herein to the Registration Statement, the
Prospectus, or any
<PAGE>
amendment or supplement thereto shall be deemed to refer to and include
the documents incorporated (or deemed to be incorporated) by reference
therein, and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement or Prospectus
shall be deemed to refer to and include the filing after the execution
hereof of any document with the Commission deemed to be incorporated by
reference therein. To the extent the Company desires to sell more
shares of Stock pursuant to this Agreement than can be sold pursuant to
the Registration Statement, the Company shall file a new registration
statement with respect to such shares (or amend an existing
registration statement to describe the transactions contemplated by
this Agreement to the extent required by the Rules and Regulations) and
shall cause such registration statement (or amendment) to become
effective (subject to the satisfaction of the Agent, in its reasonable
discretion, that the foregoing is in conformity with then applicable
legal requirements). After the effectiveness of said registration
statement (or amendment), all references to "Registration Statement"
included in this Agreement shall be deemed to include such new (or
amended) registration statement.
(b) Each part of the Registration Statement, when such part
became or becomes effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission
and at each Closing Date (as hereinafter defined), conformed or will
conform in all material respects with the requirements of the Act and
the Rules and Regulations; each part of the Registration Statement,
when such part became or becomes effective, did not or 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, in the light of the circumstances under which they were made,
not misleading; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each
Closing Date, did not or will not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing shall not apply to
statements in or omissions from any such document in reliance upon, and
in conformity with, written information furnished to the Company by or
on behalf of the Agent, specifically for use in the Registration
Statement, the Prospectus or any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto,
when they became or become effective under the Act or were or are filed
with the Commission under the Securities Exchange Act of 1934, as
amended ("Exchange Act"), as the case may be, conformed or will conform
in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder.
(d) The consolidated financial statements of the Company,
together with the related notes and schedules, set forth or
incorporated by reference in the Registration Statement and Prospectus
fairly present the consolidated financial condition and the results of
operations and cash flows of the Company as of the dates indicated or
for the periods therein specified and were prepared in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise stated therein).
<PAGE>
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation with power and authority (corporate and other) to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and Prospectus; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify and be
in good standing, considering all such cases in the aggregate, would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company, the Operating Partnership (as defined below), the Services
Partnership (as defined below), the Construction Partnership (as
defined below) and any Property Partnership (as defined below)
considered as one enterprise (the "Duke Group").
(f) Each significant subsidiary (as defined in Section 1-02 of
Regulation S-X) of the Company has been duly formed and is validly
existing as a corporation or partnership in good standing under the
laws of the jurisdiction of its organization, has corporate or
partnership power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and Prospectus and is duly qualified as a foreign corporation
or partnership 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 and be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Duke Group as a whole (a "Material Adverse Effect"); and all of the
issued and outstanding capital stock and partnership interests, as the
case may be, of each corporation, partnership, limited liability
company or other entity a majority of the outstanding voting stock or
voting interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company (a "Subsidiary") has been duly
authorized and validly issued, is fully paid and nonassessable (except
as provided under Indiana Code 23-16-7-8) and, except for Duke Realty
Limited Partnership (the "Operating Partnership"), Duke Realty Services
Limited Partnership (the "Services Partnership"), Duke Construction
Limited Partnership (the "Construction Partnership") and entities
wholly or partially owned by the Company, the Operating Partnership or
any subsidiary which directly or indirectly own real property (the
"Property Partnerships") or as otherwise stated in the Registration
Statement) is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity. All of the issued and outstanding capital
stock of Duke Services, Inc. ("DSI") is owned by the Company. DSI is
the sole general partner and a 1% owner of the Services Partnership,
and the Operating Partnership and DMI Partnership are the sole limited
partners and 9% and 90% owners, respectively, of the Services
Partnership. The 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.
(g) The outstanding shares of common stock of the Company and the
Stock have been duly authorized and are, or when issued as contemplated
hereby will be, validly issued, fully paid and nonassessable and
conform, or when so issued will conform, to the description
<PAGE>
thereof in the Prospectus. The Stock will be sold free and clear of any
pledge, lien, security interest, encumbrance, claim or equitable
interest. Neither the shareholders of the Company nor any other person
or entity has any preemptive or similar rights with respect to the
Stock.
(h) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any of its
subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Duke Group as a whole, and
there has not been any material change in the capital stock, short-term
debt or long-term debt of the Duke Group as a whole, or any material
change, or any development involving a prospective material change, in
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Duke Group as a whole.
(i) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Company, threatened any action, suit or
proceeding to which the Company or any of its subsidiaries is a party,
before or by any court or governmental agency or body, that could
reasonably be expected to result in any Material Adverse Effect, or
that could reasonably be expected to materially and adversely affect
the properties or assets of the Duke Group considered as a whole.
(j) There are no contracts or documents of the Company or any of
its subsidiaries that are required to be filed as exhibits to the
Registration Statement or to any of the documents incorporated by
reference therein by the Act or the Exchange Act or by the rules and
regulations of the Commission thereunder that have not been so filed.
(k) All necessary action has been duly and validly taken by the
Company to authorize the execution, delivery and performance of this
Agreement. This Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Agent, constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles.
(l) The performance of this Agreement and the consummation of the
transactions contemplated herein will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, any agreement or instrument to which the Company or any
of its subsidiaries is a party or by which it is bound or to which any
of the property of the Company or any of its subsidiaries is subject
except for such breaches or defaults that would not in the aggregate
have a material adverse effect on the Company's ability to perform its
obligations under this Agreement or on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Duke Group considered as one enterprise, nor will such action
result in the violation of the Company's articles of incorporation or
by-laws, or, to the extent it is material, any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of its
properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or
<PAGE>
body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be
required under the Securities Act, the Rules and Regulations, the
Exchange Act, or state securities, real estate syndication or blue sky
laws, or such as have been received prior to the date of this
Agreement.
(m) Each of the Company, the Operating Partnership and the
Property Partnerships has good and indefeasible title to all items of
real property (and improvements thereon), leasehold interests and
general and limited partnership interests described in the Prospectus
or in the Company's Annual Report on Form 10-K for the most recently
ended fiscal year as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as are (i) described in the
Prospectus or in 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 real properties, (iii) serving as security for loans described in
the Prospectus or (iv) not material to the business, condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Duke Group considered as one enterprise. Each of the
Company and its subsidiaries has peaceful and undisturbed possession
under all material leases to which it is party as lessee, except where
the failure to have such possession would not have a Material Adverse
Effect. Each of the Company and its subsidiaries has all governmental
or regulatory licenses, certificates, permits, authorizations,
approvals, franchises or other rights necessary to engage in the
business currently conducted by it, except such as are not material to
the business, condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Duke Group as a whole,
and none of the Company and its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
licenses, certificates, permits, authorizations, approvals, franchises
or other rights which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect. None of the Company and its subsidiaries has received any
notice that any governmental body or agency is considering enacting,
amending or repealing any statute, law, ordinance or regulation
required to be described in the Registration Statement and Prospectus
that is not so described as required. Neither the Operating
Partnership, any Property Partnership nor any tenant of any of the
properties owned by the Operating Partnership or a Property Partnership
(the "Properties") is in default under any of the ground leases (as
lessee) or space leases (as lessor) relating to the Properties, other
than defaults that, individually or in the aggregate, would not have a
Material Adverse Effect.
(n) None of the entities comprising the Duke Group is required to
own or possess any trademarks, service marks, trade names, patents or
copyrights not now lawfully owned, possessed or licensed in order to
conduct the business now operated by such entity, except where a
failure to own, possess or license such right would not have a Material
Adverse Effect. None of the entities comprising the Duke Group has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, if singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(o) The Company and its subsidiaries have not violated and are in
compliance in all material respects with all laws, statutes,
ordinances, regulations, rules and orders of any foreign, federal,
state or local government and any
<PAGE>
other governmental department or agency, and any judgment, decision,
decree or order of any court or governmental agency, department or
authority, including, without limitation, environmental laws, except
where such a violation or failure to comply would not have a Material
Adverse Effect. Neither the Company nor any of its subsidiaries has
received any notice to the effect that, or otherwise been advised that,
it is not in compliance with any such statutes, regulations, rules,
judgments, decrees, orders, ordinances or other laws, and the Company
is not aware of any existing circumstances which are likely to result
in material violations of any of the foregoing, except where such a
failure to comply or violation would not have a Material Adverse
Effect.
(p) The Company and its qualified real estate investment trust
subsidiaries are organized in conformity with the requirements for
qualification as, and operate in a manner that qualifies them as, a
real estate investment trust under the Internal Revenue Code of 1986,
as amended (the "Code"), and the rules and regulations thereunder and
will be so qualified after consummation of the transactions
contemplated by this Agreement.
(q) Except for transactions described in the 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 Stock which may be issued in
exchange for Units.
(r) None of the entities comprising the Duke Group is in
violation of its articles of incorporation, charter, by-laws,
certificate of limited partnership, partnership agreement, operating
agreement or other organizational document, 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.
(s) 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.
(t) 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.
(u) 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.
<PAGE>
(v) Except as disclosed in the 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 Act.
(w) The Stock to be sold on a Closing Date (as defined below)
will be listed on the New York Stock Exchange on the applicable Closing
Date.
(x) Except as disclosed in the Prospectus, and, with respect to
clauses (A), (B) and (C) below, except for activities, conditions,
circumstances or matters that would not have a Material Adverse 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.
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
<PAGE>
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.
SECTION 3. Sale and Delivery of Securities.
-------------------------------
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth and subject to the reservation by the Company of the
right to sell Stock directly on its own behalf or through other dealers
or agents, the Company agrees to issue and sell through the Agent,
subject to Section 4(h), as non-exclusive sales agent, and the Agent
agrees to sell, as sales agent for the Company, on a best efforts
basis, up to the Maximum Amount of Stock during a maximum of 52 Pricing
Periods (as hereinafter defined) on the terms set forth herein;
provided, however, that the Company shall not be obligated to issue and
sell, and the Agent shall not be obligated to use its best efforts to
sell, Stock if the Stock is at a price lower than the Minimum Price (as
defined below). "Minimum Price" means a price of $24.00 per share or
such other amount determined by the Board of Directors of the Company
or the Finance Committee of the Board of Directors of the Company and
set forth in a certificate of the Company delivered to the Agent. The
Company may from time to time offer Stock for sale or accept offers to
purchase Stock otherwise than through the Agent.
<PAGE>
(b) The Stock, up to the Maximum Amount, is to be sold during one
or more pricing periods (each a "Pricing Period"), each Pricing Period
consisting of five consecutive trading days or such lesser number of
days as shall be agreed to by the Company and the Agent. The Company
and the Agent from time to time will, by mutual written agreement,
designate Pricing Period(s) and the maximum number of shares of Stock
that the Agent will attempt to sell on a best efforts basis during each
such Pricing Period (the "Average Market Price Shares"). If the Company
does not meet the exemptive provisions set forth in Rule 101(c)(1) of
Regulation M of the Exchange Act, the number of Average Market Price
Shares and any Additional Shares sold on any day in any Pricing Period
shall not exceed 10% of the average daily trading volume of the Stock
for the sixty days prior to such Pricing Period. Subject to the terms
and conditions hereof, the Agent shall use its best efforts to sell all
of the designated Average Market Price Shares during each such Pricing
Period. The Agent shall sell the shares of Stock only by means of
ordinary brokers' transactions on the New York Stock Exchange (the
"NYSE") or other markets on which the Stock is then traded. The Agent
shall not solicit or arrange for the solicitation of customer's orders
in anticipation of or in connection with such transactions. The Agent
shall not engage in any special selling efforts or selling methods
relating to the Stock within the meaning of Rule 100 of Regulation M of
the Exchange Act, nor shall the Agent or the Company take any action
relating to the Stock which would violate Regulation M of the Exchange
Act. The Agent shall calculate on a weekly basis the average daily
trading volume of the Stock. If either party has reason to believe that
the exemptive provisions set forth in Rule 101(c)(1) of Regulation M of
the Exchange Act are not satisfied, it shall notify the other party and
sales of Stock under this Agreement shall be suspended until such time
as the parties mutually agree to recommence sales hereunder. In
addition, the Company or the Agent may, upon notice to the other party
hereto by telephone (confirmed promptly by telecopy), suspend the
offering of Stock; provided, however, that such suspension or
termination shall not affect or impair the parties' respective
obligations with respect to shares of Stock sold hereunder prior to the
giving of such notice.
(c) The net proceeds (the "Net Proceeds") to the Company for the
Average Market Price Shares sold by the Agent during a Pricing Period
will equal the sum of (i) the product of (x) the Company's Percent (as
defined below) times (y) the average of the arithmetic mean of the high
and low sales prices of the common stock of the Company reported on the
NYSE for each trading day of such Pricing Period (the "Average Market
Price"), times (z) the number of Average Market Price Shares sold
during such Pricing Period plus (ii) Alternative Proceeds (defined
below), if any, plus (iii) Excess Proceeds (defined below), if any.
Subject to adjustment as set forth in subsection (g) of this section,
the compensation to the Agent with respect to the sale of Average
Market Price Shares sold hereunder shall equal the difference between
the aggregate gross sales prices at which such sales are actually
effected by the Agent and the Net Proceeds.
(d) During any Pricing Period (whether or not Average Market
Price Shares are being sold during such Pricing Period), the Company
and the Agent may agree upon the sale of shares ("Additional Shares")
of Stock in addition to or instead of the sale of Average Market Price
Shares (such Additional Shares to be included in the Maximum Amount).
The compensation to the Agent for sales of Additional Shares shall be,
with respect to any Pricing Period, the Agent's Percent of the gross
sales price per share in connection with the number of Additional
Shares sold in any Pricing Period. The sale of Additional Shares during
any day shall be confirmed in
<PAGE>
writing by the Agent to the Company following the end of the Pricing
Period. All other shares sold during a Pricing Period not so confirmed
shall be deemed Average Market Price Shares.
(e) The "Company's Percent" for Average Market Price Shares or
Additional Shares shall be (i) 98.0% for the first 250,000 shares of
Stock that may be sold pursuant to this Agreement, (ii) 98.25% for the
second 250,000 shares that may be sold pursuant to this Agreement and
(iii) 98.5% for the remaining shares of Stock that may be sold pursuant
to this Agreement. The "Agent's Percent" with respect to any shares of
Stock to be sold pursuant to this Agreement shall equal 100% minus the
applicable Company's Percent.
(f) To the extent that the compensation payable to the Agent
hereunder would otherwise exceed the maximum amount permitted to be
received pursuant to the rules and interpretations of the National
Association of Securities Dealers, Inc. ("NASD"), as determined in good
faith by the Agent, such excess over such amount shall constitute
"Excess Proceeds" payable to the Company.
(g) During any Pricing Period, the Company may instruct the Agent
by telephone (confirmed promptly by telecopy) not to sell shares of
Stock if such sales cannot be effected at or above the price designated
by the Company in any such instruction. If such an instruction is given
and as a result thereof the Agent is unable to sell shares of Stock in
an amount greater than or equal to the daily pro rata portion (e.g.,
20% as to any five-day Pricing Period) of Average Market Price Shares
to be sold during such Pricing Period, then (i) that day's highest and
lowest executed sales price of common stock of the Company reported on
the NYSE shall not be included in the calculation of Average Market
Price and (ii) the net proceeds payable to the Company (the
"Alternative Proceeds") and the compensation payable to the Agent in
respect of any sales of Average Market Price Shares effected that day
(the "Alternative Shares") by the Agent shall be equal to the Company's
Percent and the Agent's Percent, respectively, of the weighted average
sales prices at which the Agent has actually effected sales of Stock
during that day and the Alternative Shares shall be excluded from the
number used in clause (i)(z) in subsection (c) of this section.
(h) The Agent shall provide written confirmation to the Company
following the close of business on the final day of each Pricing Period
setting forth, with regard to such Pricing Period, the dates included
in the Pricing Period, the number of Average Market Price Shares and
Additional Shares, if any, sold, the gross proceeds from the sale of
such shares, the highest and lowest executed sales price at which such
shares were sold, the Net Proceeds to the Company, the amount of Excess
Proceeds, if any, the amount of Alternative Proceeds, if any, the
compensation payable by the Company to the Agent with respect to such
sales and the Average Market Price for such Pricing Period.
(i) Settlement for sales of Additional Shares will occur on the
third business day following the date on which such sales are made. The
amount of proceeds for such sales to be delivered to the Company
against the receipt of the Additional Shares sold shall be equal to the
aggregate sales prices at which such Additional Shares were sold, net
of the Agent's compensation for such sales and shall be delivered to
the Company on the settlement date. Unless the Company and the Agent
otherwise agree, settlement for sales of Average Market Price Shares
will occur on the third business day following the date on which such
sales are
<PAGE>
made and, except as provided in the following sentence, the amount
payable to the Company at settlement will be the Net Proceeds
applicable to such Average Market Price Shares. On the third business
day following the end of a Pricing Period (each a "Closing Date"), the
Average Market Price Shares sold through the Agent on the last business
day of such Pricing Period will be delivered by the Company to the
Agent against payment to the Company of the difference between (i) the
aggregate Net Proceeds for all Average Market Price Shares sold by the
Agent during the Pricing Period and (ii) all proceeds previously
delivered by the Agent to the Company in settlement of Average Market
Price Shares sold by the Agent during such Pricing Period. Settlement
for all shares shall be effected by free delivery of shares to the
Agent's account at The Depository Trust Corporation in return for
payments in same day funds delivered to the account designated by the
Company.
(j) At the time of each settlement of securities hereunder, the
Company shall be deemed to have affirmed each representation, warranty,
covenant and other agreement contained in the Agreement and on each
Closing Date, the Company shall affirm in writing each representation,
warranty, covenant and other agreement contained in this Agreement. The
Company covenants and agrees with the Agent that on or prior to the
second business day after the termination of each Pricing Period, the
Company will file a prospectus supplement under the applicable
paragraph of Rule 424(b), which prospectus supplement will set forth,
with regard to such Pricing Period, the dates included within the
Pricing Period, the number of shares of Stock sold through the Agent
(separately identifying the number of Average Market Price Shares and
the number of Additional Shares), the highest and lowest executed sales
price at which Average Market Price Shares were sold, the Net Proceeds
to the Company and the compensation payable by the Company to the Agent
with respect to sales of Average Market Price Shares and with respect
to sales of Additional Shares (all as provided in writing by the Agent
for inclusion in each such prospectus supplement), and any other
information then required by applicable law. Any obligation of the
Agent to use its best efforts to sell the Stock shall be subject to the
continuing accuracy of the representations and warranties of the
Company herein, to the performance by the Company of its obligations
hereunder and to the continuing satisfaction of the additional
conditions specified in Section 5 of this Agreement.
SECTION 4. Covenants of the Company.
------------------------
The Company covenants and agrees with the Agent and the Company that:
(a) During the period in which a prospectus relating to the Stock
is required to be delivered under the Act, the Company will notify the
Agent promptly of the time when any subsequent amendment to the
Registration Statement has been filed or has become effective or any
subsequent supplement to the Prospectus has been filed and of any
request by the Commission for any amendment or supplement to the
Registration Statement or Prospectus or for additional information; it
will prepare and file with the Commission, promptly upon the Agent's
request, any amendments or supplements to the Registration Statement or
Prospectus that, in the Agent's reasonable opinion, may be necessary or
advisable in connection with the distribution of the Stock by the
Agent; the Company will not file any amendment or supplement to the
Registration Statement or Prospectus (other than any prospectus
supplement relating to the offering of other securities (including,
without limitation, common stock not to be sold hereunder) registered
under the Registration Statement) unless a copy thereof has been
submitted
<PAGE>
to the Agent a reasonable period of time before the filing and the
Agent has not reasonably objected thereto; and it will furnish to the
Agent at the time of filing thereof a copy of any document that upon
filing is deemed to be incorporated by reference in the Registration
Statement or Prospectus; and the Company will cause each amendment or
supplement to the Prospectus to be filed with the Commission as
required pursuant to the applicable paragraph of Rule 424(b) of the
Rules and Regulations or, in the case of any document to be
incorporated therein by reference, to be filed with the Commission as
required pursuant to the Exchange Act, within the time period
prescribed.
(b) The Company will advise the Agent, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Stock for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceeding for any such purpose; and it will
promptly use every reasonable effort to prevent the issuance of any
stop order or to obtain its withdrawal if such a stop order should be
issued.
(c) Within the time during which a prospectus relating to the
Stock is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it by
the Act and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or
dealings in the Stock as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to
amend or supplement the Registration Statement or Prospectus to comply
with the Act, the Company will promptly notify the Agent to suspend the
offering of Stock during such period and the Company will amend or
supplement the Registration Statement or Prospectus (at the expense of
the Company, unless the misstatements or omissions in question were
made solely in reliance on written information furnished to the Company
by the Agent expressly for use in the Registration Statement or
Prospectus in which case such amendment or supplement shall be at the
expense of the Agent) so as to correct such statement or omission or
effect such compliance.
(d) The Company will use its best efforts, in cooperation with
the Agent, to qualify the Stock for sale under the securities laws of
such jurisdictions as the Agent designates and to continue such
qualifications in effect so long as required for the distribution of
the Stock, except that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(e) The Company will furnish to the Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the
Prospectus (including all documents incorporated by reference therein)
and all amendments and supplements to the Registration Statement or
Prospectus that are filed with the Commission during the period in
which a prospectus relating to the Stock is required to be delivered
under the Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein),
in each case as soon as available and in such quantities as the Agent
may from
<PAGE>
time to time reasonably request and will also furnish copies of the
Prospectus to the NYSE in accordance with Rule 153 of the Rules and
Regulations.
(f) The Company will make generally available to its security
holders as soon as practicable, but in any event not later than 15
months after the end of the Company's current fiscal quarter, an
earnings statement (which need not be audited) covering a 12-month
period that satisfies the provisions of Section 11(a) of the Act and
Rule 158 of the Rules and Regulations.
(g) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is terminated, will pay all
of its expenses incident to the performance of its obligations
hereunder (including, but not limited to, any transaction fees imposed
by any governmental or self-regulatory organization with respect to
transactions contemplated by this Agreement and any blue sky fees) and
will pay the expenses of printing all documents relating to the
offering. The Company will reimburse the Agent for its reasonable
out-of-pocket costs and expenses incurred on or after December 1, 1997
in connection with entering into this Agreement and the transactions
contemplated by this Agreement, including, without limitation,
reasonable travel, reproduction, printing and similar expenses, as well
as the reasonable fees and disbursements of its legal counsel incurred
on or after December 1, 1997.
(h) The Company will apply the net proceeds from the sale of the
Stock as set forth in the Prospectus.
(i) The Company will not, directly or indirectly, offer or sell
or enter into any agreement to offer or sell any shares of common stock
(other than the Stock) or securities convertible into or exchangeable
for, or any rights to purchase or acquire, common stock during the
period from the date of this Agreement through the final Closing Date
for the sale of Stock hereunder without (a) giving the Agent at least
three business days' prior written notice specifying the nature of the
proposed sale and the date of such proposed sale and (b) suspending
activity under this program for such period of time as may reasonably
be determined by agreement of the Company and the Agent; provided,
however, that no such notice and suspension shall be required in
connection with (i) the possible issuance of shares of common stock
upon the exchange of interests in the Operating Partnership ("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); (ii) grants of options
and the issuance of shares of common stock pursuant to any employee or
director stock option or benefits plan or stock ownership plan of the
Company; (iii) the issuance of shares pursuant to the Duke Realty
Investments, Inc. Direct Stock Purchase and Dividend Reinvestment Plan,
as amended from time to time, or any other dividend reinvestment plan
of the Company; (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; and (v) common stock issuable
upon conversion of securities or the exercise of warrants, options or
other rights in effect or outstanding on the date hereof.
(j) The Company will, at any time during the term of this
Agreement, as supplemented from time to time, advise the Agent
immediately after it shall have received notice
<PAGE>
or obtain knowledge thereof, of any information or fact that would
materially alter or affect any opinion, certificate, letter and other
document provided to the Agent pursuant to Section 5 herein.
(k) Each time that (i) the Registration Statement or the
Prospectus shall be amended or supplemented (other than a supplement
filed pursuant to Rule 424(b) under the Act that contains solely the
information set forth in the final paragraph of Section 3 of this
Agreement or an amendment or supplement which relates exclusively to
the issuance of securities other than the Stock) or (ii) there is filed
with the Commission any document incorporated by reference into the
Prospectus (other than a Current Report on Form 8-K solely for the
purpose of filing exhibits), the Company shall furnish or cause to be
furnished to the Agent forthwith a certificate dated the date of filing
with the Commission of such supplement or other document and the date
of effectiveness of such amendment, as the case may be, in form
satisfactory to the Agent to the effect that the statements contained
in the certificate referred to in Section 5(f) hereof which were last
furnished to the Agent are true and correct at the time of such
amendment, supplement, filing, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in said
Section 5(f), modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(l) Each time that (i) the Registration Statement or the
Prospectus is amended or supplemented (other than a supplement filed
pursuant to Rule 424(b) under the Act that contains solely the
information set forth in the final paragraph of Section 3 of this
Agreement or an amendment or supplement which relates exclusively to
the issuance of securities other than the Stock) or (ii) there is filed
with the Commission any document incorporated by reference into the
Prospectus (other than a Current Report on Form 8-K solely for the
purpose of filing exhibits), the Company shall furnish or cause to be
furnished forthwith to the Agent and to counsel to the Agent a written
opinion of Bose McKinney & Evans, counsel to the Company ("Company
Counsel"), or other counsel reasonably satisfactory to the Agent, dated
the date of filing with the Commission of such amendment, supplement or
other document and the date of effectiveness of such amendment, as the
case may be, in form and substance reasonably satisfactory to the
Agent, of the same tenor as the opinion referred to in Section 5(d)
hereof, but modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinion.
(m) Each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional amended
financial information or there is filed with the Commission any
document incorporated by reference into the Prospectus which contains
additional amended financial information, the Company shall cause KPMG
Peat Marwick LLP, or other independent accountants reasonably
satisfactory to the Agent, forthwith to furnish the Agent a letter,
dated the date of effectiveness of such amendment, or the date of
filing of such supplement or other document with the Commission, as the
case may be, in form reasonably satisfactory to the Agent, of the same
tenor as the letter referred to in Section 5(e) hereof but modified to
relate to the Registration Statement and the Prospectus, as amended and
supplemented to the date of such letter.
<PAGE>
(n) The Company hereby consents to the Agent trading in the
Company's common stock for its own account on the same side of the
market and at the same time as the Company's sales pursuant to this
Agreement.
(o) The Company shall not be required to comply with the
provisions of subsection (a) or (c) during any period of time the Agent
has suspended the offering of Stock pursuant to a request from the
Company, until the time the Company shall determine that solicitation
of offers for the purchase of Stock should be resumed.
SECTION 5. Conditions of Agent's Obligations.
---------------------------------
The obligations of the Agent to sell the Stock as provided herein shall
be subject to the accuracy, as of the date hereof, and as of each
Closing Date for any Pricing Period contemplated under this Agreement,
of the representations and warranties of the Company herein, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been instituted or, to the knowledge of the
Company or the Agent, threatened by the Commission, and any request of
the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) or otherwise
shall have been complied with to the Agent's reasonable satisfaction.
(b) The Agent shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact that in the Agent's
reasonable opinion is material, or omits to state a fact that in the
Agent's reasonable opinion is material and is required to be stated
therein or is necessary to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been any material
change, on a consolidated basis, in the capital stock of the Company
and its subsidiaries, or any material adverse change, or any
development that may reasonably be expected to cause a material adverse
change, in the condition (financial or other), business, prospects, net
worth or results of operations of the Duke Group considered as a whole,
or any change in the rating assigned to any securities of the Company.
(d) The Agent shall have received at the date of the commencement
of the first Pricing Period hereunder (the "Commencement Date") and at
every other date specified in Section 4(m) hereof, opinions of Company
Counsel, dated as of the Commencement Date and dated as of such other
date, respectively, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction
of incorporation, has corporate power and authority to
conduct its business as described in the Registration
Statement and Prospectus and is duly qualified to do business
in each jurisdiction set forth on a
<PAGE>
schedule thereto; to their knowledge, such jurisdictions
are the only jurisdictions in which such qualification is
required, whether by reason of the Company's ownership or
leasing of real property or conduct of its 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 whole.
(ii) The Operating Partnership has been duly organized and is
validly existing as a limited partnership under the laws of
its jurisdiction of organization, has partnership power and
authority to conduct its business as described in the
Registration Statement and Prospectus and is duly qualified
to do business in each jurisdiction set forth on a schedule
thereto; to their knowledge, such jurisdictions are the only
jurisdictions in which such qualification is required,
whether by reason of the Operating Partnership's ownership or
leasing of real property or conduct of its 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 whole.
(iii) Each Subsidiary of the Company or the Operating
Partnership (other than the Property Partnerships) has been
duly formed and is validly existing as a corporation (or
partnership, as the case may be) in good standing under the
laws of the jurisdiction of its organization, and has
corporate (or partnership) power and authority to own, lease
and operate its properties and conduct its business as
described in the Registration Statement and Prospectus.
(iv) All of the issued outstanding capital stock (or other
equity interests) of each Subsidiary identified in an exhibit
to such opinion have been validly issued and are fully paid
and nonassessable (except for partnership or limited
liability company interests which are assessable in
accordance with applicable partnership or operating
agreements and applicable law), and all such shares and
equity 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.
(v) The shares of Stock have been duly and validly
authorized, and, when issued and delivered to and paid for by
the purchasers thereof pursuant to this Agreement, will be
fully paid and nonassessable and conform to the description
thereof in the Prospectus. Neither the shareholders of the
Company nor any other person or entity has any statutory
preemptive or similar rights with respect to the Stock or, to
their knowledge, any nonstatutory preemptive or similar
rights with respect to the Stock. All corporate action
required to be taken for the authorization, issue and sale of
the Stock has been validly and sufficiently taken.
(vi) The Registration Statement has become effective under
the Act; (if applicable, the filings of the Prospectus
Supplements pursuant to Rule 424(b) have been made
<PAGE>
in the manner and within the time period required by
Rule 424(b)); to the knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission.
(vii) The Registration Statement, when it became
effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission
(and at each Closing Date on or prior to the date of the
opinion), excluding in each case the financial statements and
supporting schedules and other financial data contained or
incorporated by reference therein (as to which no opinion
need be rendered), complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; and the documents incorporated by reference in
the Registration Statement or Prospectus or any amendment or
supplement thereto, excluding in each case the financial
statements and supporting schedules and other financial data
contained or incorporated by reference therein (as to which
no opinion need be rendered), when filed with the Commission
under the Exchange Act, complied as to form in all material
respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder.
(viii) The description in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings,
contracts and other documents are accurate in all material
respects and fairly present the information required to be
shown; and such counsel does not know of any statutes or
legal or governmental proceedings required to be described in
the Prospectus that are not described as required, or of any
contracts or documents of a character required to be
described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such
filing they would be incorporated by reference therein) or to
be filed as exhibits to the Registration Statement that are
not described and filed as required.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) The execution, delivery and performance of this
Agreement by the Company and the consummation of the
transactions contemplated herein by the Company do not and
will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which it
is bound or to which any of the property of the Company or
any of its subsidiaries is subject except for such breaches
or defaults that would not in the aggregate have a material
adverse effect on the Company's ability to perform its
obligations under this Agreement or on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Duke Group considered as one
enterprise, nor will such action result in the violation of
the Company's charter or by-laws, or, to the extent it is
material, any statute or any order, rule or regulation
<PAGE>
known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of its properties; and no consent,
approval, authorization or order of, or filing with, any
court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement and the Prospectus in connection with the issuance
or sale of the Stock by the Company or the sale of the Stock
by the Agent, except such as have been obtained under the Act
(or filings under Rule 424(b) for particular offerings and
sales of Stock which have not yet been consummated) and such
as may be required under state securities, blue sky or real
estate syndication laws in connection with the sale and
distribution of the Stock by the Agent.
(xi) To the knowledge of such counsel, there are no actions,
suits or proceedings pending or threatened against or
affecting the Company or any of its subsidiaries or the
business, properties, business prospects, condition
(financial or otherwise) or results of operations of the
Company or any of its subsidiaries, or any of their
respective officers in their capacities as such, before or by
any Federal or state or foreign court, commission or
regulatory body, which are required to be disclosed in the
Registration Statement or the Prospectus, other than those
disclosed therein.
(xii) 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 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. The information presented in
the Registration Statement under the caption "Certain Federal
Income Tax Considerations," to the extent it constitutes
matters of law or legal conclusions, is accurate in all
material respects.
In addition, such counsel shall state that such counsel has no
reason to believe that either the Registration Statement, at the time
it (including each post-effective amendment thereto) became effective,
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, in light of the circumstances under which they were
made, not misleading or that the Prospectus and any amendments or
supplements thereto, on the date of filing thereof with the Commission
and at the Commencement Date and at each Closing Date on or prior to
the date of the opinion, included an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial
and statistical data included in any of the documents mentioned in this
paragraph.
<PAGE>
(e) At the Commencement Date and at such other dates specified in
Section 4(n) hereof, the Agent shall have received a letter from KPMG
Peat Marwick LLP, independent public accountants for the Company, or
other independent accountants reasonably satisfactory to the Agent,
dated the date of delivery thereof, substantially in the form attached
hereto as Annex I and otherwise in form and substance satisfactory to
Agent.
(f) The Agent shall have received from the Company a certificate,
or certificates, signed by the President, an Executive Vice President
or a Vice President and by the principal financial or accounting
officer of the Company, dated as of the Commencement Date and dated as
of each Closing Date contemplated by this Agreement, to the effect
that, to the best of their knowledge based upon reasonable
investigation:
(i) The representations and warranties of the Company in
this Agreement are true and correct, as if made at and as of
the Commencement Date or the Closing Date for such Pricing
Period (as the case may be), and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Commencement Date and each such Closing Date (as the case may
be);
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for
that purpose has been instituted or, to the knowledge of such
officer after due inquiry, is threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred
no event required to be set forth in an amendment or
supplement to the Registration Statement or Prospectus that
has not been so set forth and there has been no document
required to be filed under the Exchange Act and the rules and
regulations of the Commission thereunder that upon such
filing would be deemed to be incorporated by reference in the
Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any
material adverse change, on a consolidated basis, in the
business, financial condition or results of operations of the
Duke Group considered as one enterprise which has not been
described in an amendment or supplement to the Registration
Statement or Prospectus (directly or by incorporation).
In addition, on each Closing Date the certificate shall also state
that the shares of Stock to be sold on that date have been duly and
validly authorized by the Company and that all corporate action
required to be taken for the authorization, issuance and sale of the
Stock on that date has been validly and sufficiently taken.
(g) At the Commencement Date and on each Closing Date, the
Company shall have furnished to the Agent such appropriate further
information, certificates and documents as the Agent may reasonably
request.
<PAGE>
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Agent. The Company will
furnish the Agent with such conformed copies of such opinions,
certificates, letters and other documents as the Agent shall reasonably
request.
SECTION 6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless the Agent
and each person, if any, who controls the Agent within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(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 Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the reasonable
fees and disbursements of counsel chosen by the Agent),
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;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Agent expressly for use in
the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) The Agent agrees to indemnify and hold harmless the Company
and its directors and each officer of the Company who signed the
Registration Statement, and each person, if any,
<PAGE>
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by the Agent
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) Any indemnified party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice
of commencement of any action against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the commencement of
such action, enclosing a copy of all papers served, but the omission so
to notify such indemnifying party will not relieve the indemnifying
party from (i) any liability that it might have to any indemnified
party otherwise than under this Section 6 and (ii) any liability that
it may have to any indemnified party under the foregoing provision of
this Section 6 unless, and only to the extent that, such omission
results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any
indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in
and, to the extent that it elects by delivering written notice to the
indemnified party promptly after receiving notice of the commencement
of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except
as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the
defense. The indemnified party will have the right to employ its own
counsel in any such action, but the fees, expenses and other charges of
such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there
may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified
party and the indemnifying party (in which case the indemnifying party
will not have the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party has not in fact
employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying
party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, disbursements and other charges of more than one separate firm
admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they
are incurred. An indemnifying party will not be
<PAGE>
liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 6 is applicable in accordance with
its terms but for any reason is held to be unavailable from the Company
or the Agent, the Company and the Agent will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit
or proceeding or any claim asserted, but after deducting any
contribution received by the Company from persons other than the Agent,
such as persons who control the Company within the meaning of the Act,
officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to
which the Company and the Agent may be subject in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Agent on the other. The relative
benefits received by the Company on the one hand and the Agent on the
other hand shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by
the Company bear to the total compensation (before deducting expenses)
received by the Agent from the sale of Stock on behalf of the Company,
in each case as set forth in the applicable Prospectus Supplement or
Prospectus Supplements. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation
of contribution shall be made in such proportion as is appropriate to
reflect not only the relative benefits referred to in the foregoing
sentence but also the relative fault of the Company, on the one hand,
and the Agent, on the other, with respect to the statements or omission
which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall
be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Agent, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Agent agree that it would not be just and
equitable if contributions pursuant to this Section 6(d) were to be
determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed
to include, for the purpose of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the foregoing provisions of this Section 6(d), the
Agent shall not be required to contribute any amount in excess of the
amount by which the total actual sales price at which Stock sold by the
Agent exceeds the amount of any damages that the Agent has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no person found guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 6(d), any person who controls a party to this Agreement within
the meaning of the Act or the Exchange Act will have the same rights to
contribution as that party, and each officer or director of the Company
who signed the Registration Statement will have the same rights to
contribution as the
<PAGE>
Company, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of
commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 6(d), will notify
any such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may
have under this Section 6(d). No party will be liable for contribution
with respect to any action or claim settled without its written consent
(which consent will not be unreasonably withheld).
(e) The indemnity and contribution provided by this Section 6
shall not relieve the Company and the Agent from any liability the
Company and the Agent may otherwise have (including, without
limitation, any liability the Agent may have for a breach of its
obligations under Section 3 hereof).
SECTION 7. Representations and Agreements to Survive Delivery.
--------------------------------------------------
All representations, warranties and agreements of the Company
herein or in certificates delivered pursuant hereto, and the agreements
of the Agent contained in Section 6 hereof, shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Agent or any controlling persons, or the Company (or any
of their officers, directors or controlling persons), and shall survive
delivery of and payment for the Stock.
SECTION 8. Termination.
(a) The Agent shall have the right by giving notice as
hereinafter specified at any time at or prior to any Closing Date, to
terminate this Agreement if (i) any material adverse change, or any
development that has actually occurred and that is reasonably expected
to cause material adverse change, in the business, financial condition
or results of operations of the Duke Group as a whole has occurred
which, in the judgment of such Agent, materially impairs the investment
quality of the Stock, (ii) the Company shall have failed, refused or
been unable, at or prior to the Closing Date, to perform any agreement
on its part to be performed hereunder, (iii) any other condition of the
Agent's obligations hereunder is not fulfilled, (iv) any suspension or
limitation of trading in the Stock on the New York Stock Exchange, or
any setting of minimum prices for trading of the Stock on such
exchange, shall have occurred, (v) any banking moratorium shall have
been declared by Federal or New York authorities or (vi) an outbreak or
material escalation of major hostilities in which the United States is
involved, a declaration of war by Congress, any other substantial
national or international calamity or any other event or occurrence of
a similar character shall have occurred since the execution of this
Agreement that, in the judgment of the Agent, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment
for the Stock to be sold by the Agent on behalf of the Company. Any
such termination shall be without liability of any party to any other
party except that the provisions of Section 4(g), Section 6 and Section
7 hereof shall remain in full force and effect notwithstanding such
termination. If the Agent elects to terminate this Agreement as
provided in this Section, the Agent shall provide the required notice
as specified herein.
(b) Notwithstanding anything in this Agreement to the contrary,
the Company shall have the right, by giving at least ten (10) days'
written notice to the Agent as hereinafter specified, to terminate this
Agreement in its sole discretion at any time. Any such termination
shall be without liability of any party to any other party except that
the provisions of Section
<PAGE>
4(g), Section 6 and Section 7 hereof shall remain in full force and
effect notwithstanding such termination.
(c) This Agreement shall remain in full force and effect unless
terminated pursuant to Sections 8(a) or (b) above or otherwise by
mutual agreement of the parties; provided that any such termination by
mutual agreement shall in all cases be deemed to provide that Section
4(g), Section 6 and Section 7 shall remain in full force and effect.
(d) Any termination of this Agreement shall be effective on the
date specified in such notice of termination; provided that such
termination shall not be effective until the close of business on the
date of receipt of such notice by the Agent or the Company, as the case
may be. If such termination shall occur during a Pricing Period, any
Additional Shares and Average Market Price Shares shall settle in
accordance with the provisions of the second to last paragraph of
Section 3 hereof.
SECTION 9. Notices.
-------
All notices or communications hereunder shall be in writing and if sent
to the Agent shall be mailed, delivered, telexed or telecopied and
confirmed to the Agent at Frith Brothers Investments, Inc., 992 Old
Eagle School Road, Suite 915, Wayne, Pennsylvania 19087, telecopy no.
(610) 975-9993, Attention: Mr. Wes Frith, or if sent to the Company,
shall be mailed, delivered, telexed or telecopied and confirmed to the
Company at Duke Realty Investments, Inc., 8888 Keystone Crossing, Suite
1200, Indianapolis, Indiana 46240, telecopy no. (317) 574-6032,
Attention: Mr. Thomas Peck. Each party to this Agreement may change
such address for notices by sending to the other party to this
Agreement written notice of a new address for such purpose.
SECTION 10. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the
Company and the Agent and their respective successors and the
controlling persons, officers and directors referred to in Section 6
hereof, and no other person will have any right or obligation
hereunder.
SECTION 11. Entire Agreement.
----------------
This Agreement constitutes the entire agreement and supersedes all
other prior and contemporaneous agreements and undertakings, both
written and oral, among the parties hereto with regard to the subject
matter hereof.
SECTION 12. Applicable Law.
---------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF INDIANA WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 13. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
If the foregoing correctly sets forth the understanding between
the Company and the Agent, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the Agent. Alternatively, the
execution of this
<PAGE>
Agreement by the Company and its acceptance by or on behalf of the
Agent may be evidenced by an exchange of telegraphic, telecopied or
other written communications.
Very truly yours,
DUKE REALTY INVESTMENTS, INC.
By: /s/ Dennis D. Oklak
------------------------------------
Dennis D. Oklak
Executive Vice President, Chief
Administrative Officer and Treasurer
ACCEPTED as of the date
first above written
FRITH BROTHERS INVESTMENTS, INC.
By: /s/ Wesley H. Frith
--------------------------------
Printed Name: Wesley H. Frith
------------------------
Title: Presdient
-------------------------------
Exhibit 5
BOSE McKINNEY & EVANS
2700 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46240
(317) 684-5000
August 26, 1998
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Dear Sirs:
We are acting as counsel to Duke Realty Investments,
Inc., an Indiana corporation (the "Company"), in
connection with the shelf registration by the Company of
1,500,000 shares of the Company's Common Stock, par value
$.01 per share (the "Common Stock") to be sold by the
Company directly or through agents, dealers or
underwriters designated from time to time. The Common
Stock is the subject of a Registration Statement, as
amended (the "Registration Statement") filed by the
Company on Form S-3 under the Securities Act of 1933, as
amended.
We have examined photostatic copies of the Company's
Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws and such other documents and
instruments as we have deemed necessary to enable us to
render the opinion set forth below. We have assumed the
conformity to the originals of all documents submitted to
us as photostatic copies, the authenticity of the
originals of such documents, and the genuineness of all
signatures appearing thereon.
Based upon and subject to the foregoing, it is our
opinion that the Common Stock has been duly authorized by
all necessary corporate action of the Company and when
(a) the applicable provisions of the Securities Act of
1933 and such state "blue sky" or securities laws as may
be applicable have been complied with and (b) any shares
of Common Stock to be issued by the Company have been
issued and delivered as described in the Registration
Statement, such shares of Common Stock will be legally
issued, fully paid, and nonassessable.
<PAGE>
Duke Realty Investments, Inc.
August 26, 1998
Page 2
We do not hold ourselves out as being conversant with the
laws of any jurisdiction other than those of the United
States and the State of Indiana and, therefore, this
opinion is limited to the laws of those jurisdictions.
We consent to the filing of this opinion as an exhibit to
the Registration Statement on Form S-3 filed under the
Securities Act of 1933 relating to the Common Stock.
Very truly yours,
BOSE McKINNEY & EVANS
EXHIBIT 8
BOSE McKINNEY & EVANS
135 North Pennsylvania Street
Suite 2700
Indianapolis, Indiana 46204
August 26, 1998
Duke Realty Investments, Inc.
8888 Keystone Crossing, Suite 1200
Indianapolis, Indiana 46240
Gentlemen:
We have acted as counsel to Duke Realty Investments, Inc.
(the "Company") with respect to the preparation of a Registration
Statement on Form S-3 (the "Registration Statement") for the sale
by the Company of 1,500,000 shares of the Company's common stock,
par value $.01 per share (the "Common Stock"). In connection
therewith, you have requested our opinion with respect to the
Company's continued qualification as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as
amended (the "Code"). You have also requested our opinion
regarding certain United States Federal income tax consequences
to the Company and its shareholders of the qualification of the
Company as a REIT under the Code. All capitalized terms used
herein have their respective meanings as set forth in the
Registration Statement unless otherwise stated. The Company is an
Indiana corporation which has qualified as a REIT within the
meaning of Section 856(a) of the Code, for each of its taxable
years from and including the first taxable year for which it made
an election to be taxed as a REIT, and intends to continue to so
qualify.
In rendering the opinions stated below, we have examined and
relied, with your consent, upon the following:
(i) The Registration Statement;
<PAGE>
Duke Realty Investments, Inc.
August 26, 1998
Page 2
(ii) The First Amended and Restated Agreement of Limited
Partnership of Duke Realty Limited Partnership (the "Operating
Partnership") and subsequent amendments thereto;
(iii) The First Amended and Restated Agreement of Limited
Partnership of Duke Realty Services Limited Partnership (the
"Services Partnership");
(iv) Such other documents, records and instruments as we
have deemed necessary in order to enable us to render the opinion
referred to in this letter.
In our examination of the foregoing documents, we have
assumed, with your consent, that (i) all documents reviewed by us
are original documents, or true and accurate copies of original
documents, and have not been subsequently amended, (ii) the
signatures on each original document are genuine, (iii) each
party who executed the document had proper authority and
capacity, (iv) all representations and statements set forth in
such documents are true and correct, (v) all obligations imposed
by any such documents on the parties thereto have been or will be
performed or satisfied in accordance with their terms and (vi)
the Company, the Operating Partnership and the Services
Partnership at all times will be organized and operated in
accordance with the terms of such documents. We have further
assumed the accuracy of the statements and descriptions of the
Company's, the Operating Partnership's and the Services
Partnership's intended activities as described in the
Registration Statement and the reports incorporated therein by
reference.
For purposes of rendering the opinions stated below, we have
also assumed, with your consent, the accuracy of the
representations contained in the Certificate of Representations
dated August 26, 1998 provided to us by the Company, the
Operating Partnership and the Services Partnership. These
representations generally relate to the classification and
operation of the Company as a REIT and the organization and
operation of the Operating Partnership and the Services
Partnership. Our opinions
<PAGE>
Duke Realty Investments, Inc.
August 26, 1998
Page 3
are further based upon the Company's receipt of a letter ruling
from the Internal Revenue Service ("IRS") dated September 30,
1994 which concluded that the Company's and the Operating
Partnership's distributive shares of the gross income of the
Services Partnership will be in proportion to their respective
percentage shares of the capital interests of the partners of the
Services Partnership.
We have also reviewed the Registration Statement as to its
sections concerning certain United States Federal income tax
consequences to the Company and its shareholders of the
qualification of the Company as a REIT under the Code. Based upon
and subject to the foregoing, we are of the opinion that:
1. Assuming the Company was organized in conformity with
and has satisfied the requirements for qualification
and taxation as a REIT under the Code for each of its
taxable years from and including the first taxable year
for which the Company made the election to be taxed as
a REIT, the proposed methods of operation of the
Company, the Operating Partnership and the Services
Partnership as described in the Registration Statement
and as represented by the Company, the Operating
Partnership and the Services Partnership will permit
the Company to continue to qualify to be taxed as a
REIT for its current and subsequent taxable years; and
2. The tax consequences to the Company and its
shareholders of qualification of the Company as a REIT
under the Code will be consistent with the discussion
contained in the section entitled "Federal
Considerations" in the Registration Statement.
The opinions set forth in this letter represent our
conclusions as to the application of federal income tax laws
<PAGE>
Duke Realty Investments, Inc.
August 26, 1998
Page 4
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 conclusion
based upon the documents, facts and representations referred to
above. Any material amendments to such documents, changes in any
significant facts or inaccuracy of such representations could
affect the opinions referred to herein. Although we have made
such inquiries and performed such investigations as we have
deemed necessary to fulfill our professional responsibilities as
counsel, we have not undertaken an independent investigation of
the facts referred to in this letter.
We express no opinion as to any federal income tax issue or
other matter except those set forth or confirmed above. We
consent to the filing of this opinion as an exhibit to the
Registration Statement
Very truly yours,
BOSE McKINNEY & EVANS
The Board of Directors
DUKE REALTY INVESTMENTS, INC.:
With respect to the accompanying registration statement, we
acknowledge our awareness of the use therein of our reports
dated May 5, 1998 and August 5, 1998 related to our review of
interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933,
such reports are not considered a part of a registration
statement prepared or certified by an accountant, or reports
prepared or certified by an accountant within the meaning of
sections 7 and 11 of the Act.
KPMG Peat Marwick LLP
Indianapolis, Indiana
August 24, 1998
Exhibit 23
The Board of Directors
DUKE REALTY INVESTMENTS, INC.:
We consent to the use of our audit report dated January 28, 1998,
on the consolidated financial statements of Duke Realty Investments,
Inc. and subsidiaries and the related financial statement schedule
as of December 31, 1997 and 1996 and for each of the years in the
three-year period ended December 31, 1997, which report appears in
the annual report on Form 10-K of Duke Realty Investments, Inc.,
incorporated herein by reference, and to the reference to our firm
under the heading "Experts" in the registration statement.
KPMG Peat Marwick LLP
Indianapolis, Indiana
August 24, 1998
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Edward T. Baur
-----------------------
Edward T. Baur
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Geoffrey Button
-----------------------
Geoffrey Button
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Ngaire E. Cuneo
-----------------------
Ngaire E. Cuneo
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Howard L. Feinsand
-----------------------
Howard L. Feinsand
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ L. Ben Lytle
-----------------------
L. Ben Lytle
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ John D. Peterson
-----------------------
John D. Peterson
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ James E. Rogers
-----------------------
James E. Rogers
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Daniel C. Staton
-----------------------
Daniel C. Staton
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Jay J. Strauss
-----------------------
Jay J. Strauss
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner, Darell E. Zink, Jr. and Dennis D. Oklak, and each of
them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all
capacities, to sign a Registration Statement on Form S-3 under
the Securities Act of 1933 (the "Registration Statement") for the
registration of common stock, $.01 par value (the "Securities")
of Duke Realty Investments, Inc. (the "Company") for sale from
time to time at the market or otherwise , any or all pre-
effective amendments or post-effective amendments to the
Registration Statement (which amendments may make such changes in
and additions to the Registration Statement as such attorneys-in-
fact may deem necessary or appropriate), and any registration
statement for the offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with
such matters and hereby ratifying and confirming all that each of
such attorneys-in-fact and agents or his substitute or
substitutes may do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ John W. Wynne
-----------------------
John W. Wynne
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Darell E.
Zink, Jr. and Dennis D. Oklak, and each of them, his attorneys-in-
fact and agents, with full power of substitution and
resubstitution for him in any and all capacities, to sign a
Registration Statement on Form S-3 under the Securities Act of
1933 (the "Registration Statement") for the registration of
common stock, $.01 par value (the "Securities") of Duke Realty
Investments, Inc. (the "Company") for sale from time to time at
the market or otherwise , any or all pre-effective amendments or
post-effective amendments to the Registration Statement (which
amendments may make such changes in and additions to the
Registration Statement as such attorneys-in-fact may deem
necessary or appropriate), and any registration statement for the
offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his substitute or substitutes may
do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Thomas L. Hefner
-----------------------
Thomas L. Hefner
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby constitutes and appoints Thomas L.
Hefner and Dennis D. Oklak, and each of them, his attorneys-in-
fact and agents, with full power of substitution and
resubstitution for him in any and all capacities, to sign a
Registration Statement on Form S-3 under the Securities Act of
1933 (the "Registration Statement") for the registration of
common stock, $.01 par value (the "Securities") of Duke Realty
Investments, Inc. (the "Company") for sale from time to time at
the market or otherwise , any or all pre-effective amendments or
post-effective amendments to the Registration Statement (which
amendments may make such changes in and additions to the
Registration Statement as such attorneys-in-fact may deem
necessary or appropriate), and any registration statement for the
offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his substitute or substitutes may
do or cause to be done by virtue hereof.
Dated: April 23, 1998 /s/ Darell E. Zink, Jr.
-----------------------
Darell E. Zink, Jr.
